"A Nice Piece of Change''

Action by a real estate broker, Leon Easerly, for his brokerage commission. New York's statute of frauds excepted real estate brokers' oral agreements for commission from the normal requirement that such contracts be in writing. Easerly claims that Letwin, the defendant, orally commissioned him to negotiate the purchase of a shopping center owned by a Mr. Odessa. At trial Easerly testifies that after he persuaded Odessa to accept Letwin's offer for the property, hence earning his commission, Letwin backed out of the deal. Letwin claims that he never made any arrangement with Easerly. Moreover, Letwin's lawyer has discovered that in the last two years Easerly has brought eight very similar lawsuits against others in the New York area, all based on alleged oral contracts.

During the direct examination Easerly testifies that Letwin promised him, "Leon, don't worry. Listen, you put that deal over, and there's going to be a nice piece of change for you.''

On cross-examination Letwin's lawyer tries to bring out these eight previous lawsuits and in an offer of proof states that the trial transcripts of them show Easerly claiming that at the critical moment the prospective buyer or seller said, "There's a nice piece of change in it for you.''

Should defendant's offer of proof be accepted? What factors militate for and against receiving evidence of the eight other lawsuits?

Does the evidence relate, first, to proving an element of the acts at issue in the case (intent in Beechum; plan, preparation, or modus operandi in the brokerage case) and then, second, depending on what you conclude happened, to credibility? Or is the evidence in Problem IV-15 pure credibility evidence? This case is harder than Beechum,because Easerly's M.O. (if one concludes he is perpetrating a scam) involves false testimony in court. Exposing this is very close to exposing him as a liar--Rule 608/609 material.

Thus, this offer of evidence can be approached as either similar acts evidence or evidence of credibility. Viewed as similar acts evidence, it may be relevant under Rule 401 in a way that is roughly equivalent to Rule 404(b) evidence of a plan or modus operandi (the Brides in the Baths case). The striking similarity of Easerly's past testimony makes the evidence highly probative. The question is whether the jury can use this evidence without making any inferences about Easerly's general character, so that any propensity considerations are a by-product that can be dealt with through a Rule 105 limiting instruction. Under the two-step analysis, this evidence would also be subject to a determination under Rule 403 that its probative value was not outweighed by waste of time, confusion, or prejudice.

The evidence would, on this theory, be offered to prove what happened on the occasion of the litigated event, and not for the purpose of attacking Easerly's credibility. This would mean that Letwin would be permitted to offer proof of the prior incidents regardless of whether Easerly took the stand, and would be able to prove the prior incidents with extrinsic proof (that is, by offering transcripts of Easerly's prior testimony and by calling the other real estate men whom Easerly had allegedly bilked). Of course, whether or not the prior incidents should have been admitted on this theory involves a similar acts analysis that would be extremely time-consuming and confusing--hence the reluctance of most judges to allow it.

Suppose that the judge ruled that the evidence of the prior incidents was not admissible on this theory because proof of the prior incidents would be extraordinarily time-consuming and would tend to confuse the issues and lead the jury astray. Testimony about the prior suits could also be properly elicited on cross-examination under Rule 608 to attack the credibility of the witness, subject to the discretion of the trial judge. The theory of the doctrine of chances applies to testing the witness's credibility, and hence the form of proof would be much more efficient--simply question and answer with the witness without extrinsic proof.

Why only questions and answers on cross-examination? Rule 608(b) disallows introduction of extrinsic evidence of specific instances of conduct of a witness when attacking credibility. Thus, Easerly's prior allegations might be inquired into on cross-examination, but the transcripts of his prior testimony and the testimony of his other victims could not be introduced. This rule against extrinsic evidence is motivated by a desire to restrict the amount of time spent on issues collateral to the trial at hand. While a trial transcript makes the offer of proof less troublesome since it is unlikely that Easerly would claim he did not make the statements attributed to him, not all cases are so simple. Even in this case, however, there are many potential problems. For example, what if Easerly won some of the prior suits and lost some?