Offering Objectionable Evidence

Does an Adversary's Failure to Object Make the Practice Right?

In Trial Advocacy classes in American law schools, students are taught that in preparation for trial, the proponents of evidence should determine whether or not the evidence they plan to offer at trial is probably admissible under state statutes, rules of court, and rules of ethics. Further, students are taught that clearly inadmissible evidence should not be offered at trial, and that an attorney, who has a good faith, reasonable belief that evidence may only "possibly" be admissible, should address the question of admissibility to the trial judge at a pretrial conference, by motion in limine before trial, or at a jury-out hearing during trial, before a witness testifies on direct or cross. Most leading legal commentators on trial advocacy have opined that the intentional violation of rules of evidence is ethically improper.[1] The American College of Trial Lawyers has concurred by stating: "A lawyer should not attempt to get before the jury evidence which is improper. In all cases in which a lawyer has any doubt about the propriety of any disclosures to the jury, a request should be made for leave to approach the bench and obtain a ruling out of the jury's hearing, either by propounding the question and obtaining a ruling or by making an offer of proof."[2]

But not so, say a substantial number of attorneys and judges, and a few academics who opine that ethical rules and principles are subordinate to rules of evidence and that rules of evidence are merely adversarial tools that may be used by lawyers as they see fit to best present their cases.[3] Thus, many trial attorneys and trial and appellate courts, in furtherance of the American "adversarial system of justice," have endorsed, as a "rule of evidence," the "raise or waive rule" under which evidentiary rules excluding inadmissible irrelevant and hearsay evidence do not become applicable until a timely and specific objection is raised by adversary counsel and sustained by the trial judge.[4]

In reliance on this rule, attorneys for plaintiffs in personal injury cases where the plaintiff resides in a distant state have successfully offered into evidence, because of the absence of an objection, unsworn written statements of the plaintiff or its witnesses, affidavits of the plaintiff or its witnesses, and letters from experts, all of which are generally inadmissible as hearsay,[5] in the absence of a hearsay exception.[6] Attorneys for plaintiffs have also offered as evidence in support of their case in chief interrogatories that have been signed by the plaintiff, not the opposing party, even though this practice is contrary to the Tennessee Rules of Civil Procedure.[7] While actions on sworn account are authorized in contract actions under the Tenn. Code Ann.,[8] some plaintiffs' attorneys offer "sworn statements of account" in tort actions that assert factual allegations of fault of the defendant and state that the defendant owes the plaintiff specified damages on account. These practices are most egregious when used in cases that involve parties that are not represented by counsel.

This article addresses the scope of "the rule" that inadmissible evidence becomes admissible when a timely specific objection has not been raised by an adversary party (the "raise or waive rule"). The author contends that evidentiary, procedural, practical and ethical limitations, which have been developed in furtherance of the administration of justice, caution against an attorney's reliance on admitting evidence through the "raise or waive" rule, and suggests that an attorney is required or should voluntarily self-police his or her conduct and refrain from offering evidence that he or she does not reasonably believe is admissible absent the use of "the rule," particularly when the adversary party is not represented by counsel.

Overview of the Rules of Evidence

The purposes of the Tennessee Rules of Evidence, and counterpart federal and state rules of evidence, include the securing of fairness in administration, elimination of unjustifiable expense, and delay, and promotion of the growth and development of the law of evidence to the end that truth may be ascertained and proceedings justly determined.[9] Most importantly, the rules provide that: "The court shall exercise appropriate control over the presentation of evidence and conduct of the trial when necessary to avoid abuse by counsel."[10] The rules further provide that all relevant evidence is admissible, except as otherwise provided by rules of exclusion contained within the Constitution, legislative acts, or rules of evidence and other rules prescribed by the supreme court pursuant to statutory authority,[11] and that "[e]vidence which is not relevant is not admissible."[12] Similarly, hearsay is not admissible except as provided by these rules of evidence or otherwise by law.[13] While many courts have applied a "raise or waive" rule, as discussed in Part III, infra, there is no express provision in the Tennessee Rules of Evidence that provides that absent a timely specific objection, evidence is automatically admissible.

The 'Rule' that Inadmissible Evidence Becomes Admissible When a Timely, Specific Objection Is not Raised
The American legal system is often referred to as an "adversary system," wherein "partisan attorneys representing the opposing parties exercise primary control over the course of pretrial discovery and evidentiary presentation."[14] The adversary system presupposes that when every party to an action is represented by efficient, competent, diligent, and zealous counsel, the interests of the parties will be best served, and that judicial intervention in the process regarding the admissibility of evidence, particularly in jury trials, should be minimal.

The Tennessee Supreme Court in State v. Smith,[15] has held that a trial court generally has no duty to exclude evidence or to provide a limiting instruction when a case is tried to a jury, in the absence of a timely objection, and a party may consent to the admissibility of evidence that is otherwise prohibited by the Tennessee Rules of Evidence, so long as the proceedings are not rendered so fundamentally unfair as to violate due process of law. In that case, the Supreme Court noted that this same principle is reflected today in Tenn. R. Evid. 103(1), which requires that a timely objection be made to preserve an error, and in Tenn. R. App. P. 36(a), which requires that a party take any action reasonably available so as to prevent an error or to mitigate its harm. In another Tennessee state case, State v. Robertson,[16] the court stated that when a party does not object to the admissibility of the evidence, the evidence becomes admissible notwithstanding any other Rule of Evidence to the contrary, and the jury may consider the evidence for its "natural probative effects as if it were in law admissible." Other state and federal courts generally are in agreement that in truly adversarial cases where all parties are represented by competent counsel, the practice of offering probably irrelevant and/or inadmissible evidence " even though such evidence is subject to exclusion upon objection " is proper.[17] An important factual predicate to application of the "raise or waive" rule in excluding evidence absent an objection is whether the nonobjecting party has in fact "waived" the objection by its silence. Where a party is represented by an attorney, a principal/agent relationship exists and an agent, if authorized, may waive the principal's rights. Further, a trial court may interpret and treat an attorney's failure to object as an implied waiver, provided the attorney is in a position and has sufficient knowledge that its inaction may be treated as an intentional voluntary waiver of its principal's rights.[18] A"waiver" is generally defined as an intentional, voluntary relinquishment of a known right."[19] Tennessee courts have held that, in order for a party to waive a legal right, there must be a clear, unequivocal, and decisive act of the party showing such a purpose.[20] Further, the law will not presume a waiver, and the party claiming the waiver has the burden of proving it by a preponderance of the evidence.[21] Waiver may be proved by "express declaration; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage; or by a course of acts and conduct, or by so neglecting and failing to act, as to induce a belief that it was the party's intention and purpose to waive.[22] Inaction in the absence of knowledge and intent should not bear the consequences of a waiver of rights as may be justified when a party has counsel.

The "raise or waive" rule is also inapplicable where a trial judge, in his or her discretion to control the propriety, scope, manner, order and presentation of evidence at trial, chooses to exclude evidence as irrelevant or otherwise improper for admission at trial.[23] Some courts have even gone so far as to state: "It is not only the trial court's right but its duty to see that only proper and relevant evidence [is] admitted."[24] Further, a trial court has a duty to limit and control attorney misconduct,[25] a rational limitation on the wide latitude generally given by the trial court to counsel.[26]

In Mercer v. Vanderbilt University Inc.,[27] the Tennessee Supreme Court recognized that a trial judge's decision to admit or exclude evidence will be overturned on appeal only when there is an abuse of discretion, i.e., "Only when [the trial] court applies an incorrect legal standard, or reaches a decision which is against logic or reasoning that causes an injustice to the party complaining." Further, in State v. Saylor,[28] the Supreme Court held that trial courts in their determinations of whether to admit or exclude evidence are generally accorded a wide range of latitude and will only be overruled on appeal when there is a showing of abuse of discretion.

The Tennessee Rules of Evidence both expressly and implicitly recognize a trial judge's duty to exclude inadmissible evidence on her own initiative. Of primary importance, Rule 611 provides that: "The [trial] court shall exercise appropriate control over the presentation of evidence and conduct of the trial when necessary to avoid abuse by counsel."[29] Rule 611 is bolstered by other rules requiring that the Tennessee Rules of Evidence "shall be construed to secure the just, speedy, and inexpensive determination of proceedings,"[30] and that "evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."[31] The Tennessee Rules of Evidence also expressly provide that a trial court "shall determine" preliminary questions, other than relevance conditioned on fact,[32] concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence;[33] and a trial judge may exclude expert evidence, upon a finding of unreliability in its role as "gatekeeper."[34] In addition, the Tennessee Rules of Evidence limit the applicability of the "raise or waive rule" when the impropriety of a question and/or answer offered as evidence is "apparent";[35] and when the admission of evidence involves "plain error,"[36] in either a criminal[37] or a civil case,[38] which clearly and obviously affects a substantial right of an appellant and the error has seriously affected the fairness, integrity or public reputation of judicial proceedings.[39]

The "raise or waive rule" is also inapplicable where a proponent has engaged in conduct in violation of a court order[40] or has engaged in conduct in violation of court rules of procedure, which are intended to further the just, speedy and inexpensive determination of every action.[41] Further, the rules require attorneys, in making factual and legal presentations to a trial court to certify to the best of their knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that the evidence offered is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, and that allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.[42] Other court rules require that attorneys act in good faith.[43]

It has also become the de facto practice of many trial judges not to apply the "raise or waive" rule in nonjury bench trials. This practice is based on a recognition by the judge that he or she is legally trained, and, unlike lay jurors, can hear, yet disregard or give little weight to, "inadmissible evidence" that is not relevant, reliable, or right.[44] In non-jury tried cases, the proponent who relies on such low-grade evidence to prove its substantive case, may subject itself to an order of involuntary dismissal at the end of its case in chief in a non-jury case.[45] In such cases, the judge is doing the proponent a service by holding that its evidence is inadmissible despite the silence of adversary counsel.

The Model Rules of Professional Conduct and Offering Inadmissible Evidence

The focus of the Model Rules of Professional Conduct on the furtherance of the administration of justice suggests that an attorney may not offer inadmissible evidence at trial, in reliance on the "raise or waive" rule. Alternatively, the Tennessee Model Rules of Professional Conduct, in furtherance of the administration of justice, encourage attorneys to voluntarily self-police their conduct and not offer inadmissible evidence.

In addition to proscribing attorneys from knowingly offering fraudulent,[46] false,[47] or perjured testimony,[48] and from knowingly disobeying an obligation under the rules of a tribunal,[49] the Model Rules of Professional Conduct proscribe an attorney from offering inadmissible evidence at trial by providing that a lawyer shall not, in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.[50] The rules further provide that it is professional misconduct for a lawyer to "violate or attempt to violate the Rules of Professional Conduct"[51] or "engage in conduct that is prejudicial to the administration of justice."[52] Prior to the adoption of the Tennessee Rules of Professional Conduct, the Tennessee Code of Professional Responsibility specifically provided: "In appearing in his professional capacity before a tribunal, a lawyer shall not : (1) state or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be admissible evidence ... [53] (7) intentionally or habitually violate any established rule of procedure or of evidence."[54] It has also been held that an attorney's attempt to offer inadmissible evidence and then withdrawing it if there is an objection falls within the prohibition against alluding to anything the attorney knows is irrelevant or not supported by admissible line evidence.[55]

Rule 1.1 of the Model Rules of Professional Conduct provides that a lawyer's duty of competent representation to a client requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation,[56] and Rule 1.3 provides that a lawyer shall act with reasonable diligence in representing a client.[57] These rules, when read in conjunction with Rule 3.4(c)(1), logically lead to the conclusion that a trial lawyer, in advance of presenting evidence at trial, has a duty to reasonably assure himself that evidence he offers is relevant and at least arguably admissible, and that breaching this duty is unethical.[58] As attorneys may not "knowingly disobey an obligation under the rules of a tribunal"[59] and the rules of a tribunal logically include its rules of evidence, the offering of inadmissible evidence would appear to be in knowing disobedience of court rules and, therefore improper.

Some commentators argue, however, that intentional evidentiary violations are invited by the duty of zealous advocacy.[60] For example, it has been argued that "[i]n the absence of broader ethical principles, lawyers are drawn to the position that anything that might increase their chances of winning that is not expressly prohibited, is permitted " even required."[61] Another commentator has noted that attorney misconduct has "become a staple in American prosecutions" and "shows no sign of abating or being checked by institutional or other sanctions."[62] In contrast, one commentator has stated that although attorneys face great temptation to cross the limits of acceptable behavior in order to win a case at the expense of their ethical responsibilities, a claim that such improper behavior is merely "zealous advocacy" will not justify it."[63] Another leading commentator on trial advocacy has stated that the overreaching ethics of evidence bears upon the duty of zealous advocacy, and that under moral principles guiding members of an honorable profession, attorneys are prevented from presenting inadmissible evidence.[64]

In 2010, both the Tennessee Supreme Court and U.S. Supreme Court addressed professional responsibility in trial practice. The Tennessee Supreme Court has stated: "One truth is that lawyers are not mercenaries but rather are professional advocates and counselors. While we may have different views of the practice of law, we subscribe to Chief Justice Cardozo's view that '[m]embership in the bar is a privilege burdened with conditions. [An attorney is] received into that ancient fellowship for something more than private gain. [He or she] becomes an officer of the court, and like the court itself, an instrument or agency to advance the ends of justice."[65] The U.S. Supreme Court concurs, stating: "An attorney's ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and the standards of professional conduct."[66]

Even if one were to accept the proposition that the use of the "raise or waive rule" is not an evidentiary violation, or if it were a violation, that it was invited by the duty of zealous advocacy, an argument can be made that attorneys, in meeting their duty to further the "interests in the administration of justice" should self-police and voluntarily refrain from offering evidence that is only admissible because of the "raise or waive rule," in cases involving unrepresented parties.

It is axiomatic in the United States that all persons are entitled to equal access to justice, as guaranteed by the Tennessee Constitution,[67] and are entitled to fair and equal treatment by the courts.[68] Ideally, all persons not only will have the right to walk into the courthouse but will also have representation by competent and effective counsel, so that the American adversarial system of justice, under limited control by fair and impartial judges, will expeditiously and fairly result in truth and justice. In civil cases where indigent parties are unrepresented, not by choice but due to inadequate finances and inability to procure counsel through diligent reasonable means, while their adversaries are represented by licensed attorneys, courts usually announce that they "must not excuse unrepresented litigants from complying with the same substantive and procedural rules that represented parties are expected to observe," although several Tennessee cases, to a limited extent, have accommodated unrepresented parties by applying less stringent standards to pleadings filed by unrepresented parties than are applied to pleadings prepared by an attorney[69] and have provided unrepresented parties with extensions of time to respond to motions and discovery.[70] Absent the adoption by Tennessee courts of a special evidentiary rule applicable to cases involving self-represented litigants, as in Massachusetts[71] and has been suggested by several commentators,[72] the author suggests that in the furtherance of "the interest in the fair administration of justice," attorneys voluntarily forego the use of the "raise or waive rule" in cases involving unrepresented parties.

Conclusion

In truly adversarial proceedings where all parties are represented by competent counsel, it is unlikely that an objection to unfairly prejudicial inadmissible evidence will not be raised unless waiver is intended. There is a real danger, however, that unfairly prejudicial, otherwise inadmissible evidence may be offered by a represented party and admitted against an unrepresented party, who is not aware of its right to object, under the "raise or waive rule." While a trial judge has discretion to exclude inadmissible evidence absent an objection, the author suggests that the better trial practice, in the furtherance of the administration of justice, is for an attorney to voluntarily self-police his or her conduct and refrain from offering evidence that he or she does not reasonably believe is admissible absent the use of "the raise or waive rule," particularly in cases where the adversary party is not represented by counsel. In summary, "two wrongs should not make it right."

Notes

  1. See J. Alexander Tanford, The Trial Process: Law, Tactics and Ethics, fourth edition (LexisNexis 2009), pages 213-14; Robert E. Keeton, Trial Tactics and Methods, second edition, Little Brown and Company (1973), page 58; Steven Lubet, Modern Trial Advocacy: Analysis and Practice, Law School Edition (3d ed. NITA 2010), pages 70 and 209-210; Jeans, Trial Advocacy, second edition (West 1993), section 2:14, pages 29-31).
  2. Am. College of Trial Lawyers, Annotated Code of Trial Conduct 18(g) (Oct. 2005).
  3. Daniel D. Blinka, "Ethics, Evidence, and Modern Adversary Trial," Georgetown Journal of Legal Ethics 1,11 (Winter, 2006). See also, A. Darby Dickerson, The Law and Ethics of Civil Dispositions, 57 Md. L. Rev. 273, 298-99 (1998) (arguing that failure to comply with procedural rules could constitute an ethics violation).
  4. Daniel D. Blinka, "Ethical Firewalls, Limited Admissibility, and Rule 703," 76 Fordham L. Rev. 1229, 1238-39 (2007).
  5. Tenn. R. Evid. 802, 802.
  6. Tenn. R. Evid. 803, 804.
  7. See Tenn. R. Civ. P. 33.01. "Any party may serve upon any other party written interrogatories ... ."
  8. Tenn. Code Ann. Section 24-5-107.
  9. Tenn. R. Evid. 101.
  10. Tenn. R. Evid. 611(a).
  11. Tenn. R. Evid. 402.
  12. Tenn. R. Evid. 402.
  13. Tenn. R. Evid. 802.
  14. Carlson, Imwinkelreid, Konka, and Strachan, Evidence: Teaching Materials for an Age of Science and Statutes, 4th ed. (Michie 1997, p. 2).
  15. State v. Smith, 24 S.W.3d 274 (Tenn. 2000).
  16. State v. Robertson, 130 S.W.3d 842 (Tenn. Crim. App. 2003).
  17. State v. York, 211 N.W.2d 314, 317-8 (Iowa 1973) quoting McCormick on Evidence, (second ed.) section 54 : "(A) failure to make a sufficient objection to evidence which is incompetent waives any ground of complaint as to the admission of the evidence." See United States v. Stavroff, 149 F.3d 478, 482 (6th Cir. 1998). "The trial judge should not assume that every failure to object is the result of a failure to recognize the possible objection that might be made." See also, Moxley v. State, 109A2d 370 (Md. 1954); People v. Viray,36 Cal.Rptr.3d 693 (Cal. App.6thDist. 2005).
  18. Freeman Management Corp. v. Shurgard Storage Centers Inc., 2007 WL 1556604 (M.D.Tenn. 2007) citing Dallas Glass of Hendersonville Inc. v. Bituminous Fire & Marine Ins. Co., 544 S.W .2d 351, 354 (Tenn.1976); Baird v. Fidelity-Phenix Fire Ins. Co., 162 S.W.2d 384, 389 (Tenn.1942).
  19. Id. citing Ky. Nat'l Ins. Co. v. Gardner, 6 S.W.3d 493, 498-99 (Tenn.Ct.App.1999).
  20. Id.
  21. Id.
  22. Freeman Management Corp. v. Shurgard Storage Centers Inc., 2007 WL 1556604 (M.D.Tenn. 2007) citing Koontz v. Fleming, 65 S.W.2d 821, 825 (Tenn. Ct. App.1933);
  23. State v. Harris, 839 S.W.2d 54, 72 (Tenn.1992); see also State v. Hutchinson, 898 S.W.2d 161, 172 (Tenn.1994).
  24. Weaver v. United States, 374 F.2d 878, 882 (5th Cir. 1967).
  25. Reetz v. Kinsman Marine Transit Co., 330 N.W.3d 638 (Mich. 1982).
  26. Sparks v. State, 563 S.W.2d 564, 569-70 (Tenn. Crim. App. 1978).
  27. Mercer v. Vanderbilt University Inc., 134 S.W.3d121, 131 (Tenn. 2004). See also, People v. Jackson, 250 Ill.App.3d 192, 620 N.E.2d 1239 (1993); Commonwealth v. Haley, 363 Mass. 513, 518 (1973).
  28. State v. Saylor, 117 S.W.3d 239, 247 (Tenn. 2003).
  29. Tenn. R. Evid. 611(a).
  30. Tenn. R. Evid. 102..
  31. Tenn. R. Evid. 403.
  32. Tenn. R. Evid. 104(b).
  33. Tenn. R. Evid. 104(a).
  34. Tenn. R. Evid. 702 and 703. See 38. McDaniel v. CSX Transportation Inc., 955 S.W.2d 257 (Tenn. 1997); Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993).
  35. Tenn. R. Evid. 103(a)(1).
  36. Tenn. R. Evid. 103(d) and Fed. R. Evid. 103(d). See State v. Ubaldi, 462 A.2d 1001, 1009 (Conn. 1983); People v. Rodriguez, 136 P.2d 626, 629 (Cal.App. 2 Dist. 1943). In contrast, see Marshall v. United States 409 F.2d 925, 927 (9th Cir. 1969); State v. Wolery, 46 Ohio St. 2d 316, 327 (Ohio 1976).
  37. See United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993);. State v. Rodriguez, 254 S.W.3d 361 (Tenn. 2008), discussing Tenn. R.Crim. P. 52(a) and Tenn. R.App. P. 36(b).
  38. See e.g., Dixon v. Crete Medical Center, 498 F.3d 837, 849-50 (8th Cir 2007) (a medical malpractice action) and Wiser v. Wayne Farms, 411 F.3d 923, 927 (8th Cir.2005).
  39. See Turner v. State, 72 Tenn. 206 (1879). See also, State v. Ubaldi, 462 A.2d 1001, 1009 (Conn. 1983).
  40. Price v. State, 137 P. 736 (Okla. 1914); Onstad v. Wright, 54 S.W.3d 799, 807-8 (Tex. App. Texarkana 2001) U.S. v. Baresh, 790 F.2d 392, 402 (5th Cir. 1986). See State Farm and Casualty Company v. Rodriguez, 88 S.W.3d 313 (Tex. App. San Antonio 2002); Bruce v. State, 375 N.E.2d 1042, 1066 (Ind. 1978); People v. McManus, 4 Cal.Rptr. 642, 651 (Cal.App.1960) citing Weaver v. United States, 374 F.2d 878, 882 (5th Cir. 1967); Kamali v. Hawaiian Elec. Co., 504 P.2d 861, 863 (Haw. 1972); Vachon v. Pugliese, 931 P.2d 371, 380-81 (Alaska 1996); United States v. Clarke, 390 F. Supp. 2d 131, 136 (D. Conn. 2005); Heye Farms v. Nebraska, 251 Neb. 639, 558 N.W.2d 306, 326 (1997). See McCormick, Law of Evidence, Section 55 (5th ed. 1999): "The judge should exercise his discretionary power to intervene only when the evidence is irrelevant, unreliable, misleading, or prejudicial, as well as inadmissible."
  41. Tenn. R. Civ. P. 1.
  42. Tenn. R. Civ. P. 11.02.
  43. Tenn. R. Civ. P. 37 and 56.08. See also, Tenn. R. Civ. P. 17.03.
  44. Kesterson v. Varner 172 S.W.2d 556, 565-6 (Tenn. Ct. App. 2005); Vachon v. Pugliese, 931 P.2d 371, 380-81 (Alaska 1996). See also, State v. Spurlock, 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993).
  45. Tenn. R. Civ. P. 41.02(2).
  46. Tenn. Model Rules of Prof'l Conduct R. 3.3(d), 8.4 (c).
  47. Tenn. Model Rules of Prof'l Conduct R.3.3(b), ( c ), (d), 3.4(b).
  48. Tenn. Model Rules of Prof'l Conduct R.
  49. Tenn. Model Rules of Prof'l Conduct R. 3.4.
  50. Tenn. Model Rules of Prof'l Conduct R. 3.4. See William H. Fortune et al., Modern Litigation and Professional Responsibility Handbook: The Limits of Zealous Advocacy, 379-81 (1996) (noting that an attorney may not allude to inadmissible evidence by deliberately asking an improper question or commenting on the court's ruling).
  51. Tenn. Model Rules of Prof'l Conduct R. 8.4(a).
  52. Tenn. Model Rules of Prof'l Conduct R 8.4(d). See Cherry Creek Nat. Bank v. Fidelity & Casualty Co. of New York, 202 N.Y.S. 611, 614 (N.Y.A.D. 4 Dept.1924).
  53. See Tenn. Model Code of Prof'l Conduct, DR 7-106( c )(1); Restatement (Third) of Law Governing Law.  §107 (2000). See also U.S. v. Collier 68 Fed. Appx. 676, 678 (6th Cir. 2003); U.S. v. Martinez-Medina 279 F.3d 105, 118 -119 (1st Cir. 2002).
  54. ABA Model Code of Professional Responsibility, EC 7-25; DR-106(C)(7). See also A. Darby Dickerson, "The Law and Ethics of Civil Dispositions," 57 Md. L. Rev. 273, 298-99 (1998).
  55. See In re McDonald, 609 N.W.2d 418, 426 (N.D. 2000) (stating that withdrawing improper evidence after a challenge does not cure an ethical violation).
  56. Tenn. Model Rules of Prof'l Conduct R. 1.1.
  57. Tenn. Model Rules of Prof'l Conduct R. 1.3.
  58. See Tenn. Model Rules of Prof'l Conduct R. 3.1 cmt. (1983); Tenn. Model Rules of Prof'l Conduct R. 8.4( c ); Tenn. Model Rules of Prof'l Conduct R. 3.3( c ); Restatement (Third) of the Law  § 107 (2000).
  59. Tenn. Model Rules of Prof'l Conduct R.3.4(c).
  60. Daniel D. Blinka, "Ethical Firewalls, Limited Admissibility, and Rule 703," 76 Fordham L. Rev. 1229, 1238-39 (2007).
  61. Tenn. Model Code of Professional Responsibility, Canon 7: "A Lawyer Should Represent a Client Zealously within the Bounds of the Law." See Monroe H. Freedman, Understanding Lawyers' Ethics (1990) (discussing the concept of zealous advocacy).
  62. J. Alexander Tanford, "The Ethics of Evidence," 25 Am. J. Trial Advoc. 487, 491 (2002).
  63. Bennett L. Gershman, Prosecutorial Misconduct  §11:1, at 11-3 (2d ed. 2001).
  64. J. Alexander Tanford, "The Ethics of Evidence," 25 Am. J. Trial Advoc. 487, 554-555 (2002).
  65. Flowers v. Board of Professional Responsibility, 314 S.W.3d 882, 897 (Tenn. 2010).
  66. Jerman v. Carlisle, 130 S.Ct. 1605, 1622 (2010).
  67. Tenn. Const. Art. I, Section 17.
  68. U.S. Const. Amendment 14.
  69. Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003); Marceaux v. Thompson, 212 S.W.3d 262, 267 (Tenn. Ct. App. 2006 ).
  70. Hessmer v. Miranda, 138 S.W.3d 241 (Tenn. Ct. App. 2003).
  71. Commonwealth v. Sapoznik, 28 Mass. App. Ct. 236 (1990), citing Faretta v. California, 422 U.S. 806, 834-835 n.46 (1975). International Fidelity Ins. Co. v. Wilson, 387 Mass. 841 , 847 (1983); Commonwealth v. Barnes, 399 Mass. 385 , 392 (1987).
  72. Cynthia Gray, Reaching Out or Overreaching: Judicial Ethics and Self-Represented Litigants (American Judicature Society) . See also, G. Andrew Bringham and Thomas B. Norris, Jr., A Tennessee General Sessions Handbook, 77 (2009).

Lawrence A. Pivnick LAWRENCE A. PIVNICK is a professor of law at the University of Memphis Law School, where he teaches trial advocacy, Tennessee civil practice and procedure, and evidence courses. He received his law degree from the University of Florida and LL.M. from New York University. He has been a member of the Tennessee bar since 1973. He is the author Tennessee Circuit Court Practice (updated yearly since 1980) and General Sessions Practice in Tennessee: Bringing and Defending Civil Lawsuits (2009).