More likely than not, movies and TV mislead about the burden of proof in civil cases

Most people have seen courtroom dramas. Attorneys yell at each other. The judge cautions the attorneys. The witness fires back at the cross-examining attorney. Passionate arguments are made to the jury during closing arguments. The suspense builds as the jury renders its verdict.

Perhaps the most popular courtroom dramas on television are Law and Order and Crime Scene Investigation. But are these television shows and other movies an accurate depiction of what happens in real life? As with almost any question to an attorney, the answer to this question is “it depends.”

The most fundamental part of the answer is whether the case is a criminal or civil one. This is due to the different standards that apply in these types of cases. Because jurors are entitled to consider the evidence in light of their own observations and experiences in the affairs of life, which includes learning the law from television shows and movies, confusion frequently arises about which standard applies in civil cases.

If you have seen any courtroom TV drama, you may know that in a criminal case, the state must prove the defendant is guilty of a crime beyond a reasonable doubt. However, civil cases are different. The plaintiff in a civil case must prove his or her case by what is known as “the preponderance of the evidence.” Every jury hearing a civil case in Arkansas will hear the following instruction from the trial judge:

A party who has the burden of proof on a proposition must establish it by a preponderance of the evidence, unless the proposition is so established by other proof in the case. “Preponderance of the evidence” means the greater weight of evidence. The greater weight of evidence is not necessarily established by the greater number of witnesses testifying to any fact or state of facts. It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. If, upon any issue in the case, the evidence appears to be equally balanced, or if you cannot say upon which side it weighs heavier, you must resolve that question against the party who has the burden of proving it.

In other words, the plaintiff must prove his or her version of the facts is more probably true and accurate than the defense’s version of events. Stated another way, the jury must have a 51% confidence factor to rule for the plaintiff. Perhaps the best analogy of this principle are the scales of justice seen at right:

If a plaintiff (represented by the scale on the left) tips the scale slightly more than the defendant (represented by the scale on the right), then the jury should find in favor of the plaintiff. However, if the scales are even, or if the scales tip slightly in favor of the defendant, then the jury should find in favor of the defendant.

Most courtroom dramas I have seen involve criminal cases. “The Judge” came out in 2014 starring Robert Duvall and Robert Downey, Jr., which provided a good example of the application of the beyond a reasonable doubt standard of proof in criminal cases. “Twelve Angry Men” stars Henry Fonda, and is an interesting perspective from the inside of a jury’s deliberation. “And Justice For All” starred Al Pacino at his finest, whereby he is forced into a dilemma of defending a judge guilty of a crime, and at the same time defending other innocent clients. Any John Grisham book made into a movie is a good choice. One of the few movies regarding civil cases is “The Rainmaker,” starring Matt Damon as a young attorney representing a plaintiff’s family in a bad faith case against an insurance company. Another movie providing an example of a civil case is called “A Civil Action,” starring John Travolta, who represents several families affected by contaminated groundwater in Woburn, Massachusetts.

So are these movies an accurate portrayal of a real life courtroom? You’ll have to watch to find out.  

U.S. Supreme Court issues trademark decision - Check out our decision highlight hashtag

The U.S. Supreme Court issued a decision today in B&B Hardware v. Hargis, the second trademark decision from the high court this term. The issue in the case was whether the Trademark Trial and Appeals Board (TTAB) decision finding a likelihood of confusion between two trademarks had a preclusive effect in a federal court lawsuit that was going on at the same time. The TTAB decision involved the same two parties and the same issue, so the Supreme Court ruled the TTAB's decision should have been considered conclusive by the federal court.

I'll embed the tweets a little later. In the meantime, if you want to check out the tweet stream from my reading of the decision, the hashtag is #BBHardwarevHargis. As usual, it's probably easiest to start at the bottom.

Be sure to give us a follow on Twitter (chaneylawfirm) and Facebook (chaneylaw). Thanks for reading.

Trademarks and Confusion – What is an Overlapping Market?

I saw a good writeup from Dennis Crouch of Patently-O, an award-winning patent law blog. Professor Crouch's article talks about the key requirement for a trademark registration — the applied-for mark can't be likely to cause confusion with a previously-registered trademark. This is the same test juries must apply in trademark infringement cases. 

Most courts use a 6- or 8-part test to determine whether confusion is likely. You may be surprised to learn that actual confusion is not required and is usually pretty far down the list.

In Professor Crouch's article, he discusses a recent case involving an application for the word TakeTEN, which is used for a hospital's 10-day inpatient "lifestyle shift" program (for things like tobacco use, diabetes, weight control, etc.). The application was rejected due to a likelihood of confusion with Take 10!, a registered trademark used to encourage kids to have 10-minute classroom intervals involving physical activity. The two marks appear below:

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On appeal, the rejection was reversed because the trademark examiner didn't meet the required burden of substantial proof that the two marks were likely to be confused with one another. The appeals court found that the services were sufficiently different, even though both owners advertise on the Internet. Did the court get it right? Do you think these two uses are likely to be confused with one another?

Trademark law invariably involves judgment calls over whether two names or symbols are likely to be confused with one another, taking into account things like relevant markets; similarity in sight, sound, and meaning; industry significance of all or portions of the two marks; intent; instances of actual confusion; and the type of product and its conditions of purchase. These factors are discussed in perhaps my favorite trademark infringement case, Gaston's White River Resort v. Rush.

It's important to select a trademark lawyer with experience in both registration and infringement matters to assist you in the trademark procurement process — experience helps a lawyer predict what a trademark examiner or jury would do with any given case.

Perception versus Reality: the jury can't hear everything

I caught a lucky break last weekend when one of my college roommates at the SAE house put his Razorback tickets up on Facebook. He has an infant and won't be making many games this year. We planned on going to Fayetteville for the game, so I stopped in Little Rock and got his tickets. To the delight of my son and I, the tickets were front row south end zone seats. Great seats for a great game. The Hogs capped off a dominating performance against Northern Illinois with a touchdown sprint by Korliss Marshall late in the 4th quarter. This happened right in front of our seats, and my whole family could have reached out and touched the players. The photo is a screen grab from the ESPNU coverage of the game.

My oldest son's perception of what it means to go to a Razorback game is forever changed. At 6, he'll probably always remember that moment on the front row. (My earliest memory of a game is from the age of about 4, most of the way up the grandstands. I was terrified of Big Red, the mascot.) In reality, it is rare to have those types of seats, even for big boosters. As I said before, I simply got lucky. (So did my friend — they volunteered to change seats when the south end zone seats were installed.)

Perception versus reality has its place in the courtroom, and juror feedback is a great thing for identifying the difference between the two. I've tried cases in three states in both federal and state court. Every judge does something a little differently about talking to the jury. Many times, juror feedback is limited by the Court. For example, in most federal courts, the judge won't permit any contact with jurors until after any appeals are finalized, and then only if the juror puts his or her name on a list. In state court in Arkansas and Texas, the custom is for the judge to tell jurors that want to discuss the case with the attorneys to leave through the courtroom; other jurors go out a different door.

After unfavorable jury verdicts (which any plaintiff's lawyer who tries many cases have had), jurors almost always report that they would have liked to see more information — more medical records, more tax returns, any information about car or health insurance, more witnesses from different parts of life. Courts have limited resources, and so attorneys must make choices about what evidence to present to the jury within a limited time frame. Attorneys for injury victims also can't present any evidence relating to insurance, which is a law we believe should be changed. This is the case even when the defendant has insurance to pay any judgment, or the medical bills actually paid by health insurance are far less than the rate charged by a hospital.

So the reality is that people have many more medical records and witnesses than could ever be presented to tell a complete story of a life-changing event. Court rules also limit what types of evidence can be shown to the jury. So, the jury's perception is shaped by constraints on time and by laws created by lobbyists to limit references to insurance and other matters that almost always interest the jury.

If you were on a jury, how would you handle the difference between perception and reality? How would you want an attorney to explain the difference to you?

Chaney Firm lawyers to teach CLE classes on bad faith, common auto defenses

​Nathan and Taylor are each scheduled to teach a continuing legal education class during a program sponsored by the Arkansas Trial Lawyers Association on June 6–7. Nathan's topic is insurance bad faith, a topic on which Nathan has written before. His presentation will explain the different types of the tort, and will offer tips and advice on successfully bringing and proving a bad faith case against an insurance company. 

Taylor's topic will cover defeating the so-called MIST defense in auto injury cases.​ In many cases without much external damage to the vehicles involved, insurance companies will defend the cases on the theory that because the cars aren't hurt, the occupants of those cars shouldn't be hurt either. Taylor's presentation will focus on scientific literature published over the past 20 years that roundly rejects this theory, and will provide legal authorities showing that insurance companies cannot meet the burden of proving these flawed scientific arguments.

The CLE lineup contains several notable Arkansas lawyers, and we invite you to attend.​