Evidence Refresher: New & Overlooked Rules Every Litigator Should Know

CLE, Reuben Guttman Articles, Whistleblower Resources

Program Summary

Think you know the rules of evidence? Think again! This engaging CLE will cover recent changes, commonly misunderstood provisions, and overlooked evidentiary rules that could make or break your case. Whether you’re in the courtroom every day or just brushing up, this session will help you confidently navigate key evidentiary challenges. This program will be packed with what you need to gain stronger command of these critical evidence rules. Join us for this must-attend CLE and make sure your evidence game is courtroom-ready!

Key topics to be discussed:

Rule 106 – The Rule of completeness: When can you force the opposing party to introduce the rest of the story?

Rule 107 – Illustrative aids (a new rule!): How and when can you use visuals to support your case?

Rule 201 – Judicial notice: What facts can the court accept without traditional methods of proof, and how do you use this to your advantage?

Rule 615 – Sequestration: Who can you exclude from the courtroom and why might you want to?

Rule 807 – Residual exception to the hearsay rule: When can hearsay still come in, even when it doesn’t fit a Rule 803 or Rule 804 exception?

Rule 1002 – The best evidence rule: What’s really required when proving the contents of a document?

Rule 401- Relevance: What is really relevant and when is the rule being used to be backdoor in evidence for other purposes?

Rule 403- Probative value and unfair prejudice: What are some examples of unfair prejudice, confusion, or waste of time that might succeed in getting evidence excluded?

Rules 801 and 803- Hearsay: What are the common misconceptions about hearsay and exceptions everyone should consider using?

Rules 901 and 902- Authentication: How do issues relating to Artificial Intelligence play into the authentication of evidence?

Rule 1006- Summaries: When can you avoid dealing with the hassle of documents?

Agenda

I. Rule 106 – The Rule of completeness: When can you force the opposing party to introduce the rest of the story? | 2:00pm – 2:10pm

II. Rule 107 – Illustrative aids (a new rule!): How and when can you use visuals to support your case? | 2:10pm – 2:20pm

III. Rule 201 – Judicial notice: What facts can the court accept without traditional methods of proof, and how do you use this to your advantage? | 2:20pm – 2:30pm

IV. Rule 615 – Sequestration: Who can you exclude from the courtroom and why might you want to? | 2:30pm – 2:40pm

V. Rule 807 – Residual exception to the hearsay rule: When can hearsay still come in, even when it doesn’t fit a Rule 803 or Rule 804 exception? | 2:40pm – 2:50pm

VI. Rule 1002 – The best evidence rule: What’s really required when proving the contents of a document? | 2:50pm – 3:00pm

Break | 3:00pm – 3:10pm

VII. Rule 401- Relevance: What is really relevant and when is the rule being used to be backdoor in evidence for other purposes? | 3:10pm – 3:22pm

VIII. Rule 403- Probative value and unfair prejudice: What are some examples of unfair prejudice, confusion, or waste of time that might succeed in getting evidence excluded? | 3:22pm – 3:34pm

IX. Rules 801 and 803- Hearsay: What are the common misconceptions about hearsay and exceptions everyone should consider using? | 3:34pm – 3:46pm

X. Rules 901 and 902- Authentication: How do issues relating to Artificial Intelligence play into the authentication of evidence? | 3:46pm – 3:58pm

XI. Rule 1006- Summaries: When can you avoid dealing with the hassle of documents? | 3:58pm – 4:10pm

Speakers

Veronica J. Finkelstein | Wilmington University School of Law

Veronica J. Finkelstein combines the best of practice and teaching, devoting herself to developing the next generation of top advocates. She is both an experienced litigator and a skilled educator with diverse scholarly interests. Finkelstein spent a majority of her career as an Assistant U.S. Attorney with the U.S. Department of Justice in Philadelphia before transitioning to a fulltime teaching role at the Wilmington University School of Law.

At the U.S. Attorney’s Office, she served as the civil division training officer and paralegal supervisor before being selected as senior litigation counsel. Finkelstein handled various civil affirmative and defensive matters and criminal child exploitation cases. She tried numerous civil defensive cases to winning verdicts, including tort, employment law, and medical malpractice cases. She also successfully litigated cases on appeal.

In addition to this defensive work, Finkelstein investigated and prosecuted affirmative fraud claims, including qui tam actions. In 2014 she was awarded the Executive Office of United States Attorneys Director’s Award for Superior Performance as a Civil Assistant U.S. Attorney.

Before joining the Department of Justice, Finkelstein clerked for the Honorable Jane Cutler Greenspan on the Pennsylvania Supreme Court. She also previously worked as a construction litigator at Duane Morris, LLP and Cohen Seglias Pallas Greenhall & Furman, PC.

A gifted teacher who regularly works with both lawyers and law students, Finkelstein has taught at the U.S. Department of Justice’s National Advocacy Center on ethics, appellate advocacy, legal writing, and trial practice. She frequently serves as a program director for the National Institute for Trial Advocacy, where she teaches depositions, motion practice, trial advocacy, and legal writing programs. In 2024 she was awarded NITA’s Jo Ann Harris Public Service Award.

Prior to entering academia full time, Finkelstein served as adjunct faculty of law at Drexel Law, Emory Law, and Rutgers Law. She was awarded the Carl “Tobey” Oxholm III Outstanding Contribution to the Thomas R. Kline School of Law Community Award in 2021 and was named Rutgers Law School Adjunct Professor of the Year every year she taught at Rutgers Law.

Finkelstein’s scholarship is as diverse as her litigation and teaching experience. Her scholarship has addressed various topics, from evidence, to civil procedure, to constitutional law. Her essay “The Quest to Normalize Questments” was selected as the 2024 winner of Temple Law Review’s Edward D. Ohlbaum Paper in Advocacy.

She is also the co-author of the Professional Responsibility textbook “Ethical Lawyering: A Guide for the Well-Intentioned,” which contextualizes the rules of professional conduct in realistic litigation settings. The textbook is now in its second edition.

Finkelstein graduated, with honors, from the Emory University School of Law. She was a highly competitive member of Emory Law’s moot court society and was selected for the Order of the Barristers. She received her undergraduate degrees, with honors, from the Pennsylvania State University.

Reuben Guttman | Guttman, Buschner & Brooks, PLLC

Reuben Guttman is a founding member of Guttman, Buschner & Brooks, PLLC where his practice involves civil rights, whistleblowers, class actions and complex litigation. The International Business Times has referred to him as “one of the world’s most prominent whistleblower attorneys.” Citing “wins recouping billions of dollars for the federal and state governments,” Boston Globe’s STAT News referred to him as the “The Lawyer Pharma Loves to Hate.”

Guttman has represented workers, unions, and pension funds in complex litigation. For over a decade, he has served as the chief outside counsel to the Oil, Chemical & Atomic Workers International Union, AFL-CIO/CLC, in a series of labor and environmental cases that enhanced safety and environmental conditions at Manhattan Project nuclear weapons sites while driving dread disease compensation legislation for nuclear weapons workers across the nation.

In 2020, he served as lead counsel in a federal class action lawsuit against the South Carolina Department of Corrections and secured a consent order mandating Hepatitis C testing and treatment for 17,000 inmates.

Guttman is currently a faculty member of the American University School of Public Affairs where he teaches Equal Protection/Civil Rights, and he has been an Adjunct Professor at Emory Law School and a Senior Fellow at Emory Law’s Center for Advocacy and Dispute Resolution. He is a Founder and Senior Advisor to the Emory Corporate Governance and Accountability Review (ECGAR). He is the 2015 recipient of the Emory Law Alumni Service Award.

He has taught trial advocacy and complex case investigations in the United States, China, and Mexico, and he has co-authored three case files – two published by Emory Law and one published by the National Institute of Trial Advocacy where he is a faculty member.

He is co-author (with J.C. Lore III of Rutgers Law) of the textbook, Pretrial Advocacy (Wolters Kluwer Spring, 2021). He is a chapter co author (with Traci Buschner) and wrote the introduction for Remote Advocacy: A Guide to Survive and Thrive (Wolters Kluwer and National Institute of Trial Advocacy, 2020).

Guttman has written or co-authored more than 100 articles or opinion pieces and multiple book chapters and law review pieces. He is a monthly columnist for Law360 where he writes on litigation and politics. His article, Pharmaceutical Regulation in the United States; a Confluence of Influences, wastranslated and published in Mandarin in the Peking University Public Interest Law Journal, Vol 1, Page 187 (2010).

Guttman is a Fellow of the American Bar Foundation; he is past member of the Board of Directors of the American Constitution Society (ACS) where he is currently a member of the ACS Board of Advisors. Guttman received his JD from Emory University and his BA in American History from the University of Rochester. He is the founder of www.whistleblowerlaws.com. He began his legal career as a Washington, DC counsel for the Service Employees International Union, AFL-CIO, where he served for five years.

To register, to learn about CLE and more visit https://mylawcle.com/products/evidence-refresher-new-overlooked-rules-every-litigator-should-know/

Courts Affirm Constitutionality of FCA Qui Tam Provision

Justin Brooks Articles, Legal Developments, Whistleblower News

On September 30, 2024, Judge Kathryn Mizelle in the Middle District of Florida granted a defense motion for judgment on the pleadings and dismissed an FCA case after concluding that the FCA’s qui tam provision is unconstitutional.   U.S. ex rel. Zafirov v. Fla. Medical Assoc. LLC, No. 19-cv-1236, Dkt. No. 346 (M.D. Fla. Sept. 30, 2024).

Judge Mizelle first concluded that FCA relators are “officer[s] of the United States,” because they 1) “exercise significant authority pursuant to the laws of the United States,” in the form of possessing civil enforcement authority on behalf of the United States, and 2) “occupy a ‘continuing’ position established by law,” because “the position of relator does not depend on the identity of the person initiating the action, as any ‘person’ can be the relator if she satisfies the statutory prerequisites.”  Based on the foregoing, she determined that qui tam relators must be appointment in a manner consistent with the Appointments Clause, which is not satisfied by a relator’s “self-appointment.” The opinion was predicated almost entirely on dicta by Justice Thomas in a dissent in the case of United States ex rel. Polansky v. Exec. Health Res., 599 U.S. 419 (2023). The dicta questioned but did not answer whether the qui tam device violates Article II’s appointments clause because this determination was unnecessary to rule on the matter before the Court. Justices Kavanaugh and Barrett concurred in the query.

At odds with longstanding appellate precedent, the Zafirov opinion ignores the oversight mechanisms and safeguards built into the FCA to ensure the Government can maintain control of declined cases as the real party in interest. It has gotten little traction in the ensuing weeks. In early November, a federal court in the Eastern District of Tennessee criticized it as an “outlier” that relies “chiefly on selections of dissents, concurrences, and law review articles” while “whistl[ing] past precedent.” United States ex rel. Adams v.Chattanooga Hamilton Cty. Hosp. Auth., 2024 U.S. Dist. LEXIS 209546, at *7-9 (E.D. Tenn. Nov. 7, 2024). Other district courts in the Eleventh Circuit have reached the same conclusion. E.g. United States ex rel. Butler v. Shikara, 2024 U.S. Dist. LEXIS 181390, at*40-41 (S.D. Fla. Sep. 6, 2024) (rejecting Thomas dicta as basis to find qui tam unconstitutional).

Indeed, prior to Zafirov, the Sixth Circuit, Ninth Circuit, Tenth Circuit, and Fifth Circuit (en banc) have all affirmatively upheld the constitutionality of the qui tam provisions with robust discussions as to why there is no violation of the appointments clause. See United States ex rel. Kelly v. Boeing Co., 9 F.3d 743, 751-58 (9th Cir. 1993); United States ex rel. Taxpayers Against Fraud v. Gen. Elec. Co., 41 F.3d 1032, 1040-42 (6th Cir. 1994); Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 753-58 (5th Cir. 2001) (en banc); United States ex rel. Stone v. Rockwell Int’l Corp., 282 F.3d 787, 804-07 (10th Cir. 2002). Prior to Zafirow and Justice Thomas’s dicta, these appellate courts and district courts nationwide have been near unanimous in concluding relators are not officers subject to the appointmenta cause because (1) their duties are temporary; and (2) they do not wield government power, instead being subject to significant government oversight during the pendency of a qui tam that leaves in place government ability to intervene, monitor and limit discovery, and dismiss or settle the action over relator objections. United States ex rel. Wallace v. Exactech, Inc., 703 F. Supp. 3d 1356, 1366 (N.D. Ala. 2023) (summarizing appellate cases and rejecting argument).

Zafirov acknowledged the statutory provisions that allow the Government to control qui tam litigation but took issue with the fact that judicial review remains and courts must give qui tam relators an opportunity to be heard and express their position. This ignores that the standard is highly deferential and a Court must nearly always acquiesce to the Government’s determination that dismissal or settlement is in the best interest of the United States absent evidence the Government is engaged in active malfeasance. Zafirov is on appeal with the Eleventh Circuit. It seems unlikely that the Eleventh Circuit will break rank with other appellate decisions, but if it does, the case is poised for Supreme Court review.

On-Demand CLE: Profiting from Whistleblower, Qui Tam, and False Claim Cases

CLE, Reuben Guttman Articles, Whistleblower Resources

Over $40 billion has been recovered through whistleblower, Qui Tam, and False Claims Act cases. The demand for attorneys fluent in the latest practices, procedures, and case law has never been greater as the federal government’s whistleblower program has recently issued record setting awards. The average award today in a whistleblower settlement is nearly $450k, while many cases have been settled for well into the seven and eight figure range. At the same time, the latest amendments affecting this practice area have generated a need for counsel to handle related litigation, investigations, and compliance. The Rossdale faculty for the seminar features a national authority on the topic, who will describe successful strategies for the plaintiff’s and defense bar, recent incentive programs, collecting information in a digital age, settlement incentives, post-settlement obligations, and ethical considerations. Registration includes online access to course and reference materials that serve as a helpful guide to the numerous topics and techniques discussed in the program.

Agenda:

Profiting from Whistleblower, Qui Tam, and False Claim Cases CLE:

  1. Obtaining Fees in Whistleblower, Qui Tam, and False Claim Cases
  2. Securing Government Incentives
  3. Handling Compliance & Investigations
  4. Use of “Purloined” Documents and Self-Help Discovery to Prove Retaliation Claims
  5. Increased Focus on “Gag Provisions” in Settlement Agreements
  6. Successfully Litigating False Claim Act Allegations
  7. Unearthing the Fastest Growing Area of Federal Litigation
  8. Cutting-edge Strategies in Whistleblower Cases
  9. Statutory & Decision Update
  10. Techniques in Drafting and Arguing Pleadings
  11. Hot Topics from the Plaintiff’s & Defense Bar

Recorded Question and Answer Session

Biography of Seminar Faculty:

Reuben Guttman is a founding member of Guttman, Buschner & Brooks PLLC. His practice involves complex litigation and class actions. He has represented clients in claims brought under the Federal False Claims Act, securities laws, the Price Anderson Act, Department of Energy statutes and regulations, the Worker Adjustment and Retraining Notification Act (WARN), Racketeer Influenced and Corrupt Organizations Act (RICO) and various employment discrimination, labor and environmental statutes. He has also tried and/or litigated claims involving fraud, breach of fiduciary duty, antitrust, business interference and other common law torts. The International Business Times has called Mr. Guttman “one of the world’s most prominent whistleblower attorneys.” He has served as counsel in some of the largest recoveries under the False Claims Act. Mr. Guttman served as lead counsel in a series of cases resulting in the recovery of more than $30 million under the Federal Fair Labor Standards Act. Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications and his commentary has appeared in Market Watch, American Lawyer Media, AOL Government, Accounting Today, and the Jerusalem Post. In addition to his writings, Mr. Guttman has testified before committees of the United States House of Representatives and the United States Senate on the Asbestos Hazard Emergency Response Act (AHERA). In 1992, he advised President-elect Clinton’s transition team on labor policy and worker health and safety regulation. Mr. Guttman earned his law degree at Emory University School of Law, where he has been appointed as a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for the school’s Trial Techniques Program.

To register or to learn more visit Profiting from Whistleblower, Qui Tam, and False Claim Cases CLE — 24/7 On-demand Recording and Complimentary Podcast – The Rossdale Group, LLC – A National Leader in Attorney Education (mcssl.com)

High Court False Claims Ruling Underscores Communication Is Key

Reuben Guttman Articles, Whistleblower News

Federal contractors should avoid taking unjustifiable risks when interpreting regulations—and then submitting bills to the US government— if they want to stay out of False Claims Act trouble.

That’s one of the takeaways from Justice Clarence Thomas’ June 1 opinion in United States ex rel. Schutte v. SuperValu Inc., which reinstated FCA suits alleging the SuperValu and Safeway Inc. grocery chains overcharged Medicare and Medicaid for prescription drugs.

The unanimous opinion had law firms that represent FCA defendants sending out client alerts, saying to prepare for less success in motions to dismiss. But the opinion doesn’t appear to be a pro-plaintiff game-changer beyond being a reprieve from what would have been a devastating defeat for those that try to uncover fraud, attorneys told Bloomberg Law.

This is “going to generally be a fact question that isn’t susceptible to a resolution on a motion to dismiss,” said Reuben A. Guttman of Guttman, Buschner & Brooks PLLC, a firm that represents whistleblowers.

But “I don’t think the opinion changed the rules of the game” for litigating FCA cases. “The opinion is true to the statute and consistent with the common law of fraud,” he said.

The dual cases arrived from the US Court of Appeals for the Seventh Circuit, which had rejected the two suits for lack of scienter because SuperValu Inc. and Safeway had offered a reasonable regulatory interpretation. And the companies had unsuccessfully urged the Supreme Court to find that intent must be lacking if their interpretation of an ambiguous rule was objectively reasonable.

Writing for a unanimous court, Thomas said the Seventh Circuit improperly failed to consider evidence of subjective intent—that the companies believed they were wrongly seeking payments from the government.

Read the entire article here: https://news.bloombergtax.com/financial-accounting/high-court-false-claims-ruling-underscores-communication-is-key

CLE: The Art of Drafting and Responding to Effective Demand Letters

Reuben Guttman Articles, Whistleblower News

Telephone Seminar, 6/21/2023, Noon – 1:30 | Learn the latest on The Art of Drafting and Responding to Effective Demand Letters CLE with this convenient, telephonic seminar with visual access to written materials. Register to obtain CLE and MCLE credit, receive access to complete course and reference materials, and attend this telephonic seminar.

Benefits:

The Art of Drafting and Responding to Effective Demand Letters is critical to mitigating attorneys fees and quickly resolving cases. With lengthy waits for trial and motion calendar, successfully handling demand letters is more important than ever. This seminar will discuss concrete examples on drafting an effective and powerful demand letter that results in favorable and immediate outcomes for clients. Our distinguished faculty will relate real-life scenarios to illustrate decision science, compelling framing, and key language to increase the effectiveness of your demand letters. At the same time, responding to an excellent demand letter requires learnable skills to limit liability, discount the expense of litigation, and efficiently resolve disputes. The speakers for this program include a leading trial and defense counsel and adjunct professor of litigation. Registration includes access to complete course and reference materials to outline and diagram the discussed best arguments, practices, and techniques. Register today to learn the most effective methods on Effectively Drafting and Answering Demand Letters.

Agenda:

The Art of Drafting and Responding to Effective Demand Letters CLE:

  1. Key Language to Include in Effective Demand Letters
  2. Crafting Compelling Narratives in Demand Letters and Responses
  3. Drafting Powerful Responses to Demand Letters
  4. Winning Strategies to Demonstrate that the Law Is On Your Side
  5. Avoiding Common Demand Letter Issues
  6. Using Statistics in Demand Letters
  7. Utilizing Moral Foundations and Defenses
  8. Overlooked Responses to Demand Letters that Get Results
  9. Structuring Evidence in Demand Letters
  10. Determining How Much Information to Provide in Damage Calculations
  11. Successfully Limiting Liability in Responses

Interactive Question & Answer Session

Biography of Seminar Faculty:

Reuben Guttman is a founding member of Guttman, Buschner & Brooks PLLC. His practice involves complex litigation and class actions. He has represented clients in claims brought under the Federal False Claims Act, securities laws, the Price Anderson Act, Department of Energy statutes and regulations, the Worker Adjustment and Retraining Notification Act (WARN), Racketeer Influenced and Corrupt Organizations Act (RICO) and various employment discrimination, labor and environmental statutes. He has also tried and/or litigated claims involving fraud, breach of fiduciary duty, antitrust, business interference and other common law torts. The International Business Times has called Mr. Guttman “one of the world’s most prominent whistleblower attorneys.” He has served as counsel in some of the largest recoveries under the False Claims Act. Mr. Guttman served as lead counsel in a series of cases resulting in the recovery of more than $30 million under the Federal Fair Labor Standards Act. Mr. Guttman is the author and/or editor of numerous articles, book chapters, and technical publications and his commentary has appeared in Market Watch, American Lawyer Media, AOL Government, Accounting Today, and the Jerusalem Post. In addition to his writings, Mr. Guttman has testified before committees of the United States House of Representatives and the United States Senate on the Asbestos Hazard Emergency Response Act (AHERA). In 1992, he advised President-elect Clinton’s transition team on labor policy and worker health and safety regulation. Mr. Guttman earned his law degree at Emory University School of Law, where he has been appointed as a Senior Fellow and Adjunct Professor at the Emory University School of Law Center for Advocacy and Dispute Resolution and has been a Team Leader for the school’s Trial Techniques Program.

Adam Schwartz is a Partner at Carlton Fields, where he chairs the firm’s White Collar Crime and Government Investigations Practice. He concentrates on white collar criminal defense, False Claims Act (qui tam/whistleblower) defense, and health care fraud and abuse matters. He represents individuals and corporations in internal investigations, securities and accounting fraud, asset forfeiture, real estate and mortgage fraud, defense contractor fraud, money laundering, corporate compliance, grand jury practice and procedure, and complex civil fraud defense. Mr. Schwartz advises clients on BSA/AML and Patriot Act compliance and defends bank officers and directors in FDIC litigation. He counsels pharmaceutical wholesalers on regulatory compliance laws including the Drug Quality and Security Act and the Drug Supply Chain Security Act. Prior to joining the firm, he prosecuted money laundering and asset forfeiture matters as an Assistant U.S. Attorney with the United States Department of Justice. Mr. Schwartz is a highly sought-after speaker on health care fraud, attorney-client privilege considerations, and internal investigation. He has been co-chair of the American Bar Association White Collar Crime Subcommittee since 2007.

CLE Credit: Rossdale CLE is a national leader in attorney education and has trained thousands of attorneys, paralegals, and other legal professionals.

To register or learn more, visit https://www.mcssl.com/store/legalresourcesi

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