Letters.

Another View of the Break-even Offer

I read with amazement the February Trial Lawyers Forum, "Settlement Offers in Personal Injury: Identifying the Break-even Offer."

My amazement arises from almost total lack of consideration of the injured client's interests, substituting instead analysis focused almost exclusively on the interests of the attorney. While insurance companies and their actuaries may operate on the "probability theory: in the long run, higher than projected claims will be offset by lower than projected claims ...," this same probability theory can hardly form the basis of the individual claimant evaluating the individual death or individual serious injury.

Look at these excerpts from the article:

"The authors believe that if attorneys used experts more often they would make more money per case, and would spend less time and effort on cases that prove to be less profitable."

"Negotiations currently are controlled by guess work, and the attorney with limited resources cannot afford to guess wrong."

These are examples of how the authors apparently focus on the economic benefits to the lawyer without consideration of the client's needs or desires.

This kind of thinking is what leads to the hypothetical; concluding that the "break-even offer" is "$13,479" in a situation in which "you can easily establish damages in excess of $25,000, which happens to be the policy limits."

The further suggestion that if the hypothetical case involves a 10 percent chance of loss, then the break-even offer is $10,028, and the obseration that the "break-even point" is intended to represent the cases handled by an attorney, indicates that the authors are not in touch with the reality of the plaintiffs personal injury practice.

The solution offered in the hypothetical case for the lawyer to protect the lawyer, rather than the client, is personally offensive to me. Frankly, most trial lawyers, faced with the hypothetical, would be able to obtain et settlement offer for the full $25,000 and to suggest recommendation for settlement for $13,000 would almost be evidence of malpractice.

I am surprised that the Trial Lawyers Section would submit an article expressing these thoughts as representative of the professional responsibility of a trial lawyer to an injured client. Articles such as this may have some value to those academicians wedded to the Chicago School of Law and Economics, but they should not; be proposed to trial lawyers as representative of the way in which any client should be treated or any client's case should be valued.

BILL WAGNER

Tampa

Editor's Response

The article titled Settlement Offers in Personal Injury: Identifying the Break-Even Offer, which appeared in the Trial Lawyers Forum of the February Bar Journal, is not, and was not intended to be, the view of The Florida Bar Journal or the Trial Lawyers Section. The Trial Lawyers Forum is simply intended to be a platform for the expression of different views and issues that may be of practical concern to trial lawyers. Any article published in the Trial Lawyers Forum is not necessarily the views of The Florida Bar or the Trial Lawyers Section. The Trial Lawyers Section supports the free exchange of ideas and vigorous debate on legal issues. The above article should be considered in that context.

D. KEITH WICKENDEN Editor, Trial Lawyers Section

More on Similar Fact Evidence

I am writing in response to Richard J. Sanders' recent article, A Dangerous Bend in an Ancient Road: The Use of Similar Fact Evidence for Corroboration (February). As an editorial, the article was thought provoking; as legal discourse, it was inaccurate, or worse yet, misleading.

The most serious shortcoming is the initial misinterpretation of the meaning of the legal term "similar fact evidence." Without supporting authority, Mr. Sanders begins by stating, "`Similar fact evidence' is a form of propensity evidence"-- a faulty premise which ultimately begs the question regarding the admissibility of such evidence. The true meaning of the term "similar fact evidence," as it is used in [sections] 90.404, is understood by considering the origin of the term in case law.

F.S. [sections] 90.404(2) is a rule of evidence entitled "Other Crimes, Wrongs, or Acts" and is based on Federal Rule of Evidence 404(b). The term "similar fact evidence," as used in [sections] 90.404(b)(2), predates the creation of [sections] 90.404, having been derived from language used in Williams v. State, 110 So. 2d 654, 663 (Fla. 1939), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86. Williams set the standard for determining the admissibility of similar fact evidence in Florida courts, a standard which became known as the Williams Rule. The meaning of the term similar fact evidence is best understood by considering its use in Williams.

Williams involved a rape prosecution in which the victim testified she had been attacked by the defendant, who had been hiding inside her car. 110 So. 2d at 656. After his arrest, the defendant claimed he had crawled into the back seat of the victim's car to take a nap under the mistaken belief that the car belonged to his brother. The state produced evidence that six weeks before the alleged rape, a different girl found the defendant on the floor in the back of her car parked in the same parking area; she screamed; and the defendant fled. The defendant was caught by police, and claimed he had crawled into the back seat of the victim's car to take a nap under the mistaken belief that the car belonged to his brother.

The court held that evidence of the previous incident was properly admitted to establish a plan, scheme, or design, to meet the defendant's anticipated defense of consent, to identify the defendant, and to demonstrate a plan or pattern followed by the defendant in committing the type of offense charged. 110 So. 2d at 663. The court stated:" [E]vidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion. This rule we hold applies to relevant similar fact evidence ... even though it points to the commission of another crime." Id. (emphasis added) Contrary to Mr. Sanders' conclusion, Williams makes it clear that "similar fact evidence" is not admitted as a form of propensity evidence.

Additionally, evidence of "other crimes" is not limited to other crimes with similar facts. "So-called similar fact crimes are merely a special application of the general rule that all relevant evidence is admissible unless specifically excluded by a rule of evidence." Bryan v. State, 533 So. 2d 744 (Fla. 1988). The requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy. This does not bar the introduction of evidence of other crimes which are factually dissimilar to the charged crime if the evidence of other crimes is relevant.

Since Williams and the enactment of [sections] 90.404, Florida courts have struggled ,on a case-by-case basis to determine the degree of similarity required of other crimes, wrongs, or acts in order to be relevant to proving the defendant has committed a separate crime. The struggle is not the result of flawed logic, but reflects a difference of opinion regarding the degree of similarity required in light of the possible unfair prejudice the defendant may suffer when the jury is informed of the uncharged act(s). In Heuring v. State, 513 So. 2d 122 (1987), the court set a high standard for the admissibility of similar fact evidence in a prosecution involving sexual molestation in a familial context. This high standard contradicts Mr. Sanders' position that there is "pressure on courts to find theories for admitting such evidence." Applying the logic of the Heuring decision to "hypotheticals" and other decisions in the context of other types of crimes is misleading--a matter of comparing apples to oysters.

I share Mr. Sanders' conclusion that the results of cases which have admitted similar fact evidence are defensible, but I disagree with his legal analysis and conclusion that the logical basis for admitting this evidence is flawed.

FRANK WILLIAMS

Gainesville

Author's Response

First, Mr. Williams makes a valid point regarding the statement "`similar fact evidence' is a form of propensity evidence," although I think this is mostly a question of semantics and definition. I would agree that properly admitted "similar fact evidence" should not be considered "propensity evidence." However, I define "propensity evidence" in this context as being evidence that is admitted solely to prove bad character or propensity, which is clearly improper under [sections] 90.404. I said "`similar fact evidence' is a form of propensity evidence" in the article because space constraints on such articles did not allow me to lay out fully my thoughts on the subject. There is no question that "similar fact evidence" proves propensity; but, when properly admitted, it also proves something more, a "something more" that does not require a propensity link to be relevant.

This point will become clearer by examining the four numbered statements from Mr. Williams' letter. I start with further definitions. "Similar fact evidence" should be defined as evidence of an uncharged crime that is unrelated to the charged offense in any way, other than the defendant's alleged involvement in both. "Other crimes evidence" should be defined as evidence of an uncharged crime that is related to the charged offense in some way. Williams is a classic example of similar fact evidence. Such evidence is most often used in the "identity through modus operandi" theory of admissibility. As I noted in the article, such evidence is properly admissible if the charged and uncharged acts are factually so similar and unique that they give rise to a reasonable inference that the defendant, and no one else, committed both. This is why courts often use such expressions as "fingerprint similarity" and "signature similarity" when describing such evidence. This is also why "striking similarity" is required for such evidence: It is that striking similarity that replaces the propensity inference and allows us to directly compare the acts themselves to find relevancy. Without that striking similarity, the only way the uncharged acts could prove the charged acts is through a propensity inference.

"Other crimes evidence" requires no similarity because its relevance is based on something other than propensity already, i.e, the "link" between the charged and uncharged crimes.

Thus, I agree that "evidence of `other crimes' is not limited to other crimes with similar facts," and that "[t]he requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy [and t]his does not bar ... evidence of other crimes which are factually dissimilar ... if the evidence ... is relevant." But none of this responds to, or refutes, the argument in the article. The type of evidence I was addressing in the article is classic similar fact evidence. It is with this type of evidence that striking similarity is generally required.

But, as Huering itself recognizes, striking similarity alone does not authorize the use of such evidence; rather, the evidence must still be relevant to proving a material issue other than by proving propensity. In the classic "identity through modus operandi" theory of admissibility, identity is that material issue. The problem in molestation cases--the problem Huering correctly identified--is that identity is generally not the issue, at least in the classic sense. In a classic identity defense, the defendant does not contest the commission of the crime; rather, he asserts someone else did it. In the types of molestation cases Huering addressed, the defense is generally "fabrication," i.e., the charged act never occurred. Thus, in such cases, the "identity through modus operandi" theory is inapplicable. This in turn means that the similarity requirement must be reexamined, to determine what, if any, role it should play in the question of admissibility.

I believe my article correctly analyzes this question. I agree generally with Mr. Williams that "Florida courts have long struggled on a case-by-case basis to determine the degree of similarity required of other crimes ... in order to be relevant." However, I believe that struggle has led us down the wrong road in the cases I addressed.

The problem I see is the potential expansion of Huering into other types of cases, as the "corroboration" theory of admissibility becomes added to the similar fact laundry list and applied, with little or no analysis, to other cases.

I stand by my assertion that there has long been "pressure on the courts to find theories for admitting such evidence." This pressure is quite understandable. Molestation cases are difficult to prosecute, and the existence of similar fact evidence in a particular case creates pressure to find some way to admit it. I believe this pressure results from the combination of the facts that 1) such cases are hard to prove; 2) such cases generate a high degree of emotion and revulsion; and 3) both courts and the public tend to believe that the propensity to engage is this type of conduct is qualitatively different from the propensity to engage in other types of criminal behavior. I should note that I am not the only one who believes this. See the authorities cited in footnotes 6, 7, and 40 of the article.

RICHARD J. SANDERS

Palm Harbor