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									                     BIRMINGHAM BAR ASSOCIATION
                  CONTINUING LEGAL EDUCATION SEMINAR

                        PRE-TRIAL MOTIONS, NOTICES AND
                            PAPER DISCOVERY FROM
                         THE DEFENDANT'S PERSPECTIVE

                                       By Michael K. Beard
                                         Rives & Peterson
                                       505 North 20th Street
                                    Suite 1700 Financial Center
                                   Birmingham, Alabama 35203

PRE-TRIAL MOTIONS AND NOTICE

       There are a number of provisions of both the substantive and procedural law of Alabama

that require either special notice or that a matter be raised by motion or be waived. There are

also certain issues which good practice dictates should be raised in pre-trial motions, although

there is no legal necessity that it be done. These matters will be discussed below.

I.     MOTIONS RAISING WAIVABLE ISSUES

       A.      Motions Contesting Venue

       Rule 12 of the Alabama Rules of Civil Procedure provides that a venue objection is

waived if not raised in the initial pleading.

       B.      Notice of Contest of Constitutionality of Statute

       Section 6-6-227 of the Code of Alabama requires that a litigant contesting the

constitutionality of an Alabama statute give notice to the Attorney General of Alabama. If this

is not done, the trial courts lack jurisdiction to resolve the issue. Ex parte Northport Hearth

Serv., 682 So. 2d 233 (Ala. 1996).




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       C.      Motion to Compel Arbitration

       If one substantially invokes the litigation process, then he is deemed to have waived any

right to arbitration that he may have. Ex parte Merrill, Lynch, Pierce, Fenner & Smith, Inc., 494

So. 2d 1 (Ala. 1986). The Alabama Supreme Court has held that filing a Notice of Removal

works a waiver of the right to arbitration. Companion Life Ins Co. v. Whitesell Mfg. Co., 670 So.

2d 897 (Ala. 1995). The appropriate procedure to invoke arbitration is to file a Motion to

Compel Arbitration and to Dismiss the Action. See e.g. Boyd v. Homes of Legend, Inc., 981 F.

Supp. 1423 (M.D. Ala. 1997).

       D.      Motion for Bifurcation or Separate Trials

       Rules 21 and 42, Alabama Rules of Civil Procedure, provide a mechanism for the court to

order issues to be tried separately.

       In the motor vehicle accident case where a negligent entrustment count is alleged, the

driver's defense lawyer should file a motion for separate trials to avoid the injection of a bad

diving record into the case. See Wilder v. DiPiazzo, 481 So. 2d 1091 (Ala. 1985). It is within

the court's discretion to grant or deny the motion. Rice v. Blackmon, 559 So. 2d 1070 (Ala.

1990); Celadon Trucking Service v. Davis, 673 So. 2d 777 (Ala. Civ. App. 1996).

       Bifurcation is used in cases where insurance carriers intervene for the purpose of

contesting coverage.     See Universal Underwriters Ins. Co. v. East Cent. Alabama Ford

Mercury, Inc., 574 So. 2d 716 (Ala. 1990). Depending on the nature of the coverage issue, it

may be to the defendant's advantage to argue against the motion to bifurcate.

       The writer has had some success in having trial judges bifurcate breach of contract

actions from bad faith actions on the basis that the bad faith claim is premature while the contract


                                                 2
claim is still at issue.   This argument is especially forceful if there is evidence, such as

settlement offers, that would be admissible in the bad faith action but not in the contract action.

Also, the argument can be made that the expensive wide ranging pattern and practice discovery

can be postponed pending the outcome of the contract action. An exemplar motion and brief is

attached. (Tab 1).

       In catastrophic injury cases, the defendant may consider filing a motion to bifurcate the

issues of liability and damages to avoid a sympathy verdict. Our Supreme Court has stated that

bifurcation should not be routinely ordered but, in the rare and exceptional case it may be

ordered. Coburn v. American Liberty Ins. Co., 341 So. 2d 717 (Ala. 1977).

       E.      Pre-Trial Notice of Intent to Offer Proof of Collateral Crimes

       Rule 404(b) of the Alabama Rules of Evidence requires that a litigant intending to offer

proof of collateral crimes must give pre-trial notice in order to preserve the right to offer the

evidence.

       F.      Motion Raising Application of § 6-11-21 of the Code of Alabama

       In January of 1999, in Oliver v. Towns, [Ms. 1970312, Jan. 15, 1999], the Alabama

Supreme Court questioned whether the decision in Henderson v. Alabama Power Company, 627

So. 2d 878 (Ala. 1993) striking the $250,000.00 cap on punitive damages found at § 6-11-21 of

the Code of Alabama remain good law. More recently, in Goodyear Tire and Rubber Company

v. Vinson, [Ms. 1972186](April 23, 1999), Justices Hooper and Houston gave notice that they

would consider revisiting and overruling Henderson in the appropriate case.1 Justice Hooper



       1
       Some argue that if Henderson is to be revisited, then the court would also have to revisit
Moore v. Mobile Infirmary, 592 So. 2d 156 (Ala. 1991) and Smith v. Schulte, 671 So. 2d 1334

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stated "All parties litigating in the courts of this state should now be on notice that this court is

willing to reconsider the Henderson ruling that the punitive damages cap of § 6-11-21, Alabama

Code (1975) is unconstitutional." Justice Houston stated "I think this court should revisit its

decision in Henderson; however, I think it should do so only in a case in which the issue of

constitutionality of § 6-11-21 has been properly preserved for review." Justice Lyons agreed

with Justice Houston saying "[W]hen we have before us a case in which the trial court has

expressly ruled that the "cap" statute can or cannot be applied, and it is squarely presented to us

on appeal, then I think we should revisit Henderson." It is beyond this writer to know what

more a litigant can do to raise the issue than was done in Vinson. However, it seems that to

protect oneself, one should not only raise the issue in the answer but also should file a motion

asking the court to rule on the constitutionality of the statute. Attached to this memorandum are

proposed motions for a pre-trial ruling which could be used to raise the issue before the trial

court. (Tab 2).

       G.      Notice to Produce the Original

       The Alabama Rules of Evidence modify the common law best evidence rule.                     A

duplicate is now admissible to the same extent as an original unless a genuine issue is raised as to

the authenticity of the original. If one intends to raise the authenticity of the duplicate, then he

should give notice to the party who has control over the original that a contest will be raised.

This notice may be given "by the pleadings or otherwise". Rule 1004(3), Alabama Rules of

Evidence.


(Ala. 1995) where the Alabama Supreme Court held the caps on damages in medical malpractice
actions to be unconstitutional.


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       H.      Notice of Intent to Introduce Hearsay Testimony

       Federal Rule of Evidence 807 provides that a statement not covered by the hearsay

exceptions in Rules 803 or 804, but having "equivalent circumstantial guarantees of

trustworthiness" will not be excluded if the statement is offered as evidence of material fact and

the statement is more provative on the point than other evidence which can be offered and the

admission of the evidence would serve the interest of justice. This rule specifically requires that

the proponent of the evidence "makes known to the adverse party sufficiently in advance of trial

or hearing" their intent to offer the evidence. Specifically, the name and address of the declarant

must be provided to the opposing party. The Alabama Rules of Evidence do not include the

"residual" or "catch-all" exception to the hearsay rule.

       I.      Motion for Separate Verdict Forms

       In order to preserve constitutional arguments against joint and several liability in

wrongful death and other punitive damages cases, it is necessary to request separate verdict forms

in order to preserve error. An exemplar motion and separate verdict forms are attached. (Tab

3).

II.    PROCEDURAL MOTIONS

       In addition to the procedural motion, there are two very important pre-trial motions that,

while not required by the Rules, prudence dictates should be filed in advance of trial.

       A.      Motion to Deem Request for Admissions Admitted

       While the text of Rule 30(36) of the Alabama Rules of Civil Procedure provides that "a

request for admission not responded to shall be deemed admitted", the trial court has discretion

to allow the party to deny the admission after 30 days. Bradley v. Demos, 599 So. 2d 1148 (Ala.


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1992). For this reason, it is good practice to file a motion asking the trial court to deem a

particular request admitted so that no one is surprised at trial.

       B.      Motion in Limine

       Perhaps the most important of the pre-trial motions is the motion in limine. The reader

is referred to Charles W. Gamble's article entitled "The Motion in Limine: A Pre-trial Procedure

That Has Come of Age" found at Volume 33, Alabama Law Review, 1 (Fall 1981) for an

in-depth analysis of the legal aspects of the motion. Often referred to by trial judges as "motions

to muzzle", it is crucial that defense lawyers file such motions to keep the jury from being

"poisoned" by inadmissible and prejudicial evidence. (See exemplar motion attached at Tab 4.)

Examples of such evidence abound. For example, in a routine automobile accident case, the

plaintiff's lawyer would want to keep the jury from hearing that the plaintiff's medical expenses

have been paid by a collateral source. The defendant, on the other hand, would want to keep the

jury from knowing that the defendant is covered by liability insurance or that the defendant's

carrier has already paid the plaintiff's property damage. In an underinsured motorist claim, the

defendant insurer would want to keep the jury from knowing the policy limits of the plaintiff's

policy. See Hewey v. Mitchell, 522 So. 2d 771 (Ala. 1988); Preferred Risk Mut. Ins. Co. v.

Ryan, 589 So. 2d 565 (Ala. 1991). Also, depending on one's strategic decisions, the defendant

may want to keep the jury from knowing that the tortfeasor's carrier has already paid the policy

limits. (See e.g. Works v. Allstate Indemnity Co., 594 So. 2d 60 (Ala. 1992). These issues are

certainly appropriate for a motion in limine.




                                                   6
       In the products liability setting, a defendant would want to keep out evidence of other

accidents involving the same or similar products and would also want to exclude evidence of

subsequent remedial measures or changes in the product that occurred after the accident.

       In the employment law setting, a defendant would want to keep out evidence of

pre-charge incidences (See e.g. Bordelon v. Winn Dixie Louisiana, Inc., 1998 WL 560351 (E.D.

La. 1998)), evidence of harassment or discrimination not witnessed by the plaintiff; (Biggs v.

Nicewonger Co., Inc., 897 F. Supp. 483 (D. Or. 1995)), evidence of other disgruntled employees;

(Williams v. Nashville Network, 132 F. 3d 1123 (6th Cir. 1997)), evidence of "bad acts" by

employees other than alleged decision maker or harasser, opinion testimony of other employees,

(McCarrick v. New York City Off-Track Betting Corp., 1995 WL 261516 (S.D. New York

1995)), statistical evidence in discrimination cases, (Martincic v. Urban Redevelopment

Authority of Pittsburgh, 844 F. Supp. 1073 (W.D. Pa.) aff'd 43 F. 3d 1461 (3rd Cir. 1994)),

character evidence, (Berry v. Oswalt, 143 F. 3d 1127 (8th Cir. 1998)), Rule 406 habit evidence,

(McCarrick v. New York City Off-Track Betting Corp., 1995 WL 261516 (S.D. New York

1995)), remarks of non-decision makers, (Roberts v. Wal-Mart Stores, Inc. 1997 WL 38138

(W.D. Va. 1997)), non-discriminatory stray remarks, (Kunzman v. Enron Corp., 941 F. Supp.

853 (M.D. Iowa 1996)), evidence of sexual discrimination in age discrimination cases, (Kelly v.

Boeing Petroleum Services, Inc., 61 F. 3d 350 (5th Cir. 1995)), evidence of EEOC or state

agency determinations, (Lee v. Executive Airlines, Inc., 31 F. Supp. 2d 1355 (S.D. Fla. 1998))

and certain forms of expert testimony (Nichols v. American National Insurance Company, 154 F.

3d 875 (8th Cir. 1998)) and evidence of settlement negotiations and releases (Haun v. Ideal

Industries, 81 F. 3d 541 (5th Cir. 1996)).


                                               7
       The motion in limine may also be used to preclude the plaintiff from offering testimony

from witnesses and experts not timely identified. See e.g. Dempsey v. Phelps, 700 So. 2d 1340

(Ala. 1997).

       It is important to recognize the limitations of motions in limine. For example, most

courts have held that a trial judge does not commit reversible error when he denies or overrules a

motion in limine. In order to show reversible error, the unsuccessful moving party must show

that the trial judge abused his discretion. Jefferson Co. v. So. Nat. Gas Co., 621 So. 2d 1282

(Ala. 1993). More importantly, the question arises whether the moving party can rely on the

filing of a motion as fulfillment of the requirement that an objection be made at the time the

evidence is offered at trial. He cannot. Perry v. Brakefield, 534 So. 2d 602, 606 (Ala. 1908).

The proper practice is to state the objection (with grounds) again and perhaps obtain an

agreement that all grounds raised in the motion in limine can be reassigned merely by a general

reference. However, it is important to make sure that this agreement is on the record in order to

avoid an argument of waiver on appeal.

III.   PAPER DISCOVERY FROM THE DEFENDANT'S PERSPECTIVE

       A.      Interrogatories

       From the defendant's perspective, paper discovery should be used to determine basic

information required for further discovery. For example, interrogatories should be used to

determine the identity of persons with information concerning the occurrence referred to in the

complaint, all evidence concerning damages and expert information. (See Coastal Lumber Co.

v. Johnson, 669 So. 2d 803 (Ala. 1995) for an excellent discussion of counsels' obligations in

responding to such discovery.) This writer believes that defendants should make liberal use of


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contention interrogatories allowed by the Alabama Rules of Civil Procedure. For example, if

the complaint is somewhat vague as to the nature of the conduct allegedly entitling the plaintiff

to punitive damages, a defendant could ask in a contention interrogatory whether such damages

are sought and then seek to determine the precise conduct that the claim is based on and then

request the names and addresses of all persons who have knowledge of facts supporting these

contentions and also a description of all documents to be used to support the allegation.

       In the cases where the plaintiff seeks "pattern and practice evidence" it is very important

to have the plaintiff disclose exactly what alleged representation or conduct is at issue. The

rules for admissibility of pattern and practice evidence provide that it must be substantially

similar to the conduct complained of by the plaintiff and the transaction must be of substantially

the same character. Massachusetts Mutual Life Insurance Company v. Collins, 575 So. 2d 1005,

cert. denied 499 U.S. 918 (1991); Dorcal, Inc. v. Xerox Corp., 398 So. 2d 655 (Ala. 1981). If

the subject matter of the alleged product at issue in the litigation is different in some material

way from "similar products", then those differences should be emphasized in the hope that the

court will limit discover to the product the plaintiff purchased.      See e.g. Ex parte Compass

Bank, 686 So. 2d 1135 (Ala. 1996).

       Interrogatories are also commonly used to determine whether the plaintiff has been

convicted of any criminal misconduct that would give rise to impeachment possibilities and

whether the defendant has ever engaged in other litigation or been involved in any bankruptcy

proceedings. prior bankruptcy litigation is important because of a possible judicial estoppel

defense if the present claim was not listed as an asset in the bankruptcy petition.

       B.      Non-Party Subpoenas


                                                  9
        Given the liberal nature of Rule 45 of the Alabama Rules of Civil Procedure, the

defendant may subpoena virtually any potentially relevant information. There are no limits to

the type of documents that can be subpoenaed by the creative defense attorney. In the routine

personal injury cases, the plaintiff's medical records and employment records should be

subpoenaed from the third party. It has been this writer's experience that it is better to obtain

these records by way of non-party subpoena than by request for production to the plaintiff.

        C.     Request for Admissions

        Requests for admissions can also be a valuable tool for the defense lawyer. Routine

matters such as the authenticity of documents, blood alcohol levels, and damages information can

be the subject of a request for admissions. For example, in a routine automobile accident case

where the plaintiff was intoxicated, the writer typically attempts to obtain the necessary

admissions to get the blood alcohol level admitted. It is often very difficult to procure the

necessary testimony from each person in the "chain of custody" of a blood alcohol report and if

the necessary admissions can be obtained, it can expedite admission of relevant evidence by use

of request for admissions. If the plaintiff denies facts later proven to be true, then there is an

argument to be made that the cost of procuring the necessary proof should be visited on the

plaintiff.

        The writer routinely argues that the plaintiff's entitlement to medical expenses is limited

to the amount paid by the plaintiff and his health insurers if the health care provider accepts that




                                                10
sum as full payment of the billed amount. (See Judge Horn's order in Hull v. Jackson,2 attached

at Tab 5.)

       We use request for admissions to establish the facts necessary to make the argument, such

as the amount billed, the amount accepted by the provider and the existence of a balance billing

limitation. Attached is an exemplar request for admissions we use. (Tab 6).

       D.        Responding to Plaintiff's Discovery

       It has been the writer's experience that defendants do a better job of propounding paper

discovery than they do in responding to the plaintiff's paper discovery. Defendants often use

"boiler plate" objections and often fail to timely respond to discovery requests by the plaintiff.

Of course, the failure to make timely objection to discovery results in a waiver of the objection.

Ex parte Fuller, 600 So. 2d 214 (Ala. 1992). Also, it is not sufficient to use blanket objections

but, instead, the objections should be tailored to the particular discovery request objected to.

Typically these issues arise in bad faith and fraud litigation where the plaintiff seeks

wide-ranging types of information including other claims, other lawsuits, and similar

information.     Often it is very difficult and very expensive for a defendant to procure the

requested information. Rather than relying solely on a "burdensome" objection, it is this writer's

suggestion that the defendant obtain specific testimony by way of affidavit from his client

establishing the impossibility of obtaining the information or, if it can be obtained, the cost of

obtaining it.    For an example of a case where this foundation enabled the defendant to

substantially limit the scope of discovery see Ex parte Heilig Meyers Furniture Co., Inc., 684 So.



       2
           This case is on appeal in the Alabama Supreme Court.


                                                11
2d 1292 (Ala. 1996).    An exemplar affidavit is attached to give the reader a general idea of how

the objection may be supported. (Tab 7).

       In addition to limitations on the type of documents that may be discovered, a defendant

should try to limit the scope of discovery to an appropriate geographical range and a reasonable

time frame. In light of the statements by the United States Supreme Court in BMW of North

America, Inc. v. Gore, 116 S. Ct. 1589 (1996), discovery of other claims should be limited to

those arising in the State of Alabama. See Ex parte Philadelphia Life Ins. Co., 682 So. 2d 392

(Ala. 1996)(J. Hooper, dissenting op.). With regard to time limitations, defendant's counsel

should attempt to have the trial court limit the production of "pattern and practice" material to as

short a time period as possible.

       An annotation of significant discovery decisions from the Alabama Supreme Court is

attached.




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