Crichton

I have a longish commute, and as a consequence get in a bit of recreational reading/audiobooks. Pursuant to this plan, I have been reading Michael Crichton's Next. It is an interesting look at how biomedical advances have outpaced our ethical understanding of them. (Actually, that pretty much sums up all of Crichton's works, except for The Great Train Robbery and his pseudonymous works.) Unfortunately, Mr. Crichton seems to have fallen down a bit on his legal research in Next. Thus this post, which is little more than a good kvetching. Because I can. (Also, please note that I haven't finished the book yet, so more may be on the way.)

Hearsay

In a courtroom scene, there is an issue regarding a conversation between a guy and his doctor regarding certain contract and fraud claims. At one point, the lawyer asks the witness what the doctor said to him; the other side objected as hearsay, and the judge sustained the objection. Ridiculous. What someone says is not hearsay unless it is offered for the truth of what is said. Here, the plaintiff was trying to prove that the doctor had lied to him, so he was going to prove that what the doctor said was NOT true. What it was, however, was a verbal act. The witness observed the verbal act, and should have been permitted to testify about it.

One page later, however, there is a place where hearsay actually SHOULD have been raised. The same witness is examined regarding what the value of the biological materials the doctor made off with were worth, and in so doing, the lawyer and witness reference outside valuations of the materials. Here, the witness is offering the truth of what someone else said. In the context, it was not important in any way what the witness's subjective understanding at the time was or any such thing which would make the hearsay admissible for another purpose. I will grant that this isn't necessarily an error on Crichton's part, since a lawyer will not always object to everything he can. For instance, perhaps here the opposing lawyer has entered a stipulation as to the value of the materials, or he wants to cut the witness to pieces on the valuation on cross examination, softening things for later when the valuator takes the stand. In general, however, I would think you would keep the valuation for a battle of the experts and keep it out of the more emotionally involved testimony of the fact witness/victim.

Eminent Domain

At another point in the book, after the plaintiff above loses, there is a negotiation taking place, and the attorney representing the one side (a university) gives an ultimatum of sorts, claiming that if the plaintiff decides to appeal, his side will have to argue that eminent domain over the materials took place (essentially under the Kelo principles - I won't look at whether eminent domain is available for these materials or by a state university, since that would require research which I won't be doing just so I can kvetch). First, a matter of procedure: as this is the first mention of eminent domain yet, they can't raise it on appeal, since you have to have raised a matter at trial (with certain exceptions such as lack of jurisdiction) or you have waived it on appeal. But let's say there is some strange way in which exercising eminent domain would cause mootness or some other way out of the litigation, and while we're being generous, we'll ignore whether an ex post claim of eminent domain would be effective as to the prior fraud claim.

Even with all that, we have a serious constitutional problem, since the U.S. Constitution requires just compensation for property taken for public purpose, and this is applicable against the states and their actors. Rather than SOLVING the appeal and letting the university get away with the fraud, the plaintiff would end up merely having to show a judge what the materials were worth and collecting that amount from the state. Comparing this method to the fraud action, this is far more favorable for the plaintiff. Instead of the plaintiff having to demonstrate all of the elements of fraud, show causation, and demonstrate the extent of the damages, he will simply have to take the state actor's confession of exercise of eminent domain, show the value of the property taken, and he wins everything he was after.