Monthly Archives: March 2012

Running The Back Door Play – Rule 104(a) and Preliminary Questions of Fact

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In basketball, a backdoor play is when a player without the ball gets behind the defense and receives a pass for an easy score. This can be executed if the defenders are unaware of the open space behind them. There is such a play available in the courtroom the defense may be unaware of as well. Federal Rule of Evidence 104 provides an attorney with backdoor means of satisfying preliminary questions of fact needed to introduce a particular items of evidence. For example, let’s say there is a document you wish to introduced into evidence that contains an expert opinion of a witness who will not be called at the time of trial to testify. Under Rule 104(a) of the Rules of Evidence you can establish the witness’s qualifications without actually calling the witness to testify at the time of trial. This portion of the Rule provides:

“(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”

This means the court is free to suspend the Rules of Evidence in making this determination and could theoretically rely on a copy of the doctor’s curriculum vita or an affidavit of the doctors qualifications in allowing a copy of a hospital business record into evidence as this deals with whether a witness is qualified to testify.

A court could look at the substance of an alleged statement of a co-conspirator to determine if it was in furtherance of the conspiracy and would not be limited to solely independent evidence as this a preliminary question of fact the court is responsible for deciding.

A witness may be unavailable and you can only establish this through hearsay. Remember the Federal Rules of Evidence are suspend on preliminary questions of fact (i.e. foundational prerequisites)! Once you grasp this nuance in the Rules of Evidence there are a lot of preliminary issues and problems you can use this rule to solve. It can really save your bacon at trial.

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Coaching the Witness: How to Handle the Speaking Objection.

imageYou are in a deposition and you are hammering an opposing witness. The witness has backed off of her speed estimate and is just about to concede she has no real basis to estimate her speed when the opposing attorney interrupts and launches into a speech:

Q. So, you would have to guess or speculate as to how fast you were traveling at the time of the collision?

Counsel: Well, that’s not what the witness said at all. What she said was that she thought she was going 35 m.p.h. She was not guessing when she said that…

Or perhaps you have not even got a chance to ask a question on a topic when this happens:

Q. Did you consider the walkway to be unsafe?

Counsel: Well, you can answer it if you know!

Or perhaps the other attorney just gets mad and tries to bully you out of a line of questioning by threatening to end the deposition. This is a pretty common occurrence in both civil and criminal depositions. So what do you do? How do you handle such behavior? Well, such interference is improper and is prohibited under the Federal Rules of Procedure. It is usually improper under the state rules of procedure or the court’s local rules as well. Federal Rule of Civil Procedure, Rule 32 provides that:

(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.

* * *

(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). [Emphasis Added]

In other words, coaching a witness while testifying is strictly prohibited. In addition, the power of a party and their counsel to end a deposition is very limited. Rule 30 of the Federal Rules of Civil Procedure provides:

(d) Duration; Sanction; Motion to Terminate or Limit.

(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(2) Sanction. The court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.

(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.[Emphasis Added]

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.

A witness should answer any question posed unless it calls for privileged information. Redwood v. Dobson, 476 F.3d 462, 468 (7th Cir. 2007)(held instructing a witness not to answer a question is improper absent a claim of privilege). Likewise, a party has no power to unilaterally stop a deposition; that power rests solely with the court. In order to get a protective order terminating deposition, a moving party must show that examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress a witness or party. If an attorney is engaging in harassing and abusive questioning, then a party has the power to halt the deposition and promptly seek an order terminating the deposition. However, this must be done immediately. Such a measure should only be used in extraordinary circumstances since the losing party risks incurring sanctions. Smith v. Logansport Community School Corp., 139 F.R.D. 637, 640 – 641 (N.D. Ind. 1991)(held a party had no right to halt a deposition just because a question may have been asked and answered earlier in the deposition since an attorney had a right to challenge the consistency of the recollection of the witness).

Normally, I will call out opposing counsel if they make a speaking objection and state: “Speaking objections are prohibited. You are not allowed to give a speech. What is your legal objection and the Rule of Evidence you are relying upon?”

After, opposing counsel states his legal objection; I then have the court reporter read back the question to the witness so that there is not a need to restate the objection: “If the Court Reporter would please read back the question to the witness so that there is no need to repeat the objection.” This usually results in the witness forgetting the advice, and answering my question. If the interference continues, I advise opposing counsel of the law and the provisions of Rule 30 one more time and have the question read back.

If opposing counsel continues to interfere, I call the court for help or file a motion for sanctions under Rule 37. There are a number of cases out there to support such a motion. See Woods v. Ramsey, 199 F.3d 437 (5th Cir. 1999). Have your legal authority ready and cite it into the record of your deposition. This should put an end to such antics.

Motion in Limine: An Effective Pretrial Tool and Weapon (Part 4)

Why do you need a motion in limine you may ask? Because the other side will try to unfairly muddy the water.  The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S.  However, all you have to do is just move straight ahead through the ink and you can see the truth once again.  Most octopi squirt thick clouds of black ink to confuse predators. However,  a type of Tremoctopus, or blanket octopus (murasakidako in Japanese), employs a different technique. When threatened, the octopus unfurls a giant sheet of webbing that trails behind like a cape. The webbing breaks apart rather easily when attacked — much like a lizard’s tail — and it gets wrapped around the predator’s face, giving the octopus a chance to flee. The motion in limine is an effective tool to avoid such tactics in the court room. I hope you have found the series helpful. Here is the final post on the topic of motions in limine:

      Undisclosed Expert Opinions

Rule of Procedure 26(E)(1) explicitly requires a party to seasonably supplement their responses (regardless of any request to do so) concerning the opinions, conclusions and findings of any expert witness.  This duty is absolute and is not predicated on either a Court order or repetitive discovery requests.  Lucas v. Dorsey, Corp., 609 N.E.2d 1192 (Ind. App. 1993). A party is entitled to know the subject matter of the experts testimony, the substance of the facts to which the experts will testify, their opinions, and a summary of the grounds for each opinion. In Ferrara v. Balistreri and DiMaio, Inc. (1985), D.Mass., 105 F.R.D. 147, a Defendant requested that the Plaintiff state for each expert the name, address, subject matter of their testimony, substance of facts to which the experts would testify, his opinions, and a summary of the grounds for each opinion. In response the Plaintiff noted for several of expert witnesses that he had not yet obtained a report setting forth the facts and opinions of the expert but would provide a copy of the same upon receipt. The Trial Court decided that such a response was inadequate under the Federal Rules of Civil Procedure and stated that:

The duty to supplement is a duty to supplement seasonably (original emphasis). Counsel must not postpone supplementation indefinitely by delaying the retaining of experts and expecting that when he will be able to supplement at the last possible moment before trial is to start. Similarly, counsel may not postpone supplementation by not obtaining from the experts which had been retained the information which is to be supplied in answer to expert interrogatories. In the instance case, counsel for the Plaintiffs did both.

Id. at 150.  The Court specifically ruled that it was improper to answer this interrogatory concerning experts on the basis that the witnesses= opinions would be disclosed when counsel for the Plaintiff “obtains” a report. Id. at 150. The Court determined that the Plaintiff’s counsel was under an affirmative obligation to procure such information so that he could file full and complete answers to the expert interrogatories, and was not entitled to delay in doing so. Id. at 150. The Court specifically rejected the Plaintiff’s position that he was under no duty to supplement if the experts had not given him the information. Id. at 150-151. Because of the Plaintiff’s failure to provide such information, the Court excluded the testimony of certain expert witnesses at trial. Id.           This Rule has also been applied even to rebuttal experts. McCullough v. Archbold Ladder Co., 605 N.E.2d 175 (Ind. 1993).

       Junk Science

Where the issue in a case relates to a specific area of expertise, an expert “must have sufficient skill in the particular area of expert testimony before an opinion may be offered in that area.”  Lytle v. Ford Motor Co., 814 N.E.2d at 308, (citing Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 365 (Ind. Ct. App. 2002), trans. denied.)(emphasis added).  Important to this case, “an expert in one field of expertise cannot offer opinions in other fields absent a requisite showing of competency in that other field.” Hegerfeld v. Hegerfeld, 555N.E.2d 853, 855-56 (Ind. Ct. App. 1990)(emphasis added).  A party proposing that an individual is a qualified expert bears the burden of establishing the foundation and reliability of the offered experts testimony.  Hannan v. Pest Control Services, Inc., 734 N.E.2d at 679.

The trial court is considered the gatekeeper for expert opinion evidence.   See Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind.Ct.App.1999), trans. denied, cert. denied by 529 U.S. 1021, 120 S.Ct. 1424, 146 L.Ed.2d 315 (2000). (citation omitted).   The trial court must weed out unreliable “junk science” from reliable scientific evidence.  Id.   To fulfill this function, it is entrusted with the discretion to rule on the admissibility of expert opinion evidence.  Id.

“Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.”  West v. State, 755 N.E.2d 173, 180 (Ind.2001) (quoting Evid. R. 702(b));  Ford Motor Co. v. Ammerman, 705 N.E.2d 539, 550 (Ind.Ct.App.1999), trans. denied, cert. denied by 529 U.S. 1021, 120 S.Ct. 1424, 146 L.Ed.2d 315 (2000).  A trial court’s decision to exclude evidence will be reversed only if that decision is clearly against the logic and effect of the facts and circumstances before this court, or the reasonable, probable and actual deductions to be drawn from the evidence.  Wallace v. Meadow Acres Manufactured Housing, Inc., 730 N.E.2d 809, 812 (Ind.Ct.App.2000), trans. denied.   If the other side has hired a “whore” to testify make sure you review the scientific literature and consult your own expert to make sure such testimony is admissible.

       Surveillance Tapes

In Corrigan v. Methodist Hospital, 158 F.R.D. 54, 58-59 (S.D. Ind. 1994), a patient sued a physician for medical malpractice and sought to compel responses to discovery requests concerning any surveillance materials. The defense objected to these requests on the grounds that they seek impeachment and rebuttal evidence as well as attorney work product. The District Court held that the Plaintiff was permitted to obtain discovery of impeachment and rebuttal evidence and found the defense’s argument was not persuasive. The District Court specifically discussed Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145 (S.D.Ind.1993), which was cited by the defense as support for the proposition that surveillance evidence is privileged attorney work product. (An objection was never raised here.)  The District Court analyzed Fisher and noted that this case “actually held that ‘[a]lmost uniformly, [ ] courts have held that evidentiary films or videotapes must be provided to the opposing party prior to trial.” 152 F.R.D. at 150 (citing cases)(Emphasis Supplied). The District Court went on to observe that Fisher went on to explore the issue of materials that would not be used at trial. It held that when tapes or other materials would not be used at trial, then they did constitute attorney work product, and were therefore privileged. The District Court noted that the defense argued that any surveillance materials, if they exist might be used at trial for impeachment or rebuttal purposes. Therefore, the defense contended that their case was different from Fisher, in that Fisher involved materials that would not be used at trial under any circumstances, and this case involves surveillance materials that may be used at trial.  The District Court rejected this argument holding that the general rule applies, and any surveillance materials are discoverable within the context of the attorney work product doctrine. Citing Snead v. American Export-Isbrandtsen Lines, 59 F.R.D. 148, 150-51 (E.D.Pa.1973) (surveillance materials discoverable because unavailable by other means and substantial need shown); Blyther v. Northern Lines, Inc., 61 F.R.D. 610 (E.D.Pa.1973).  The District Court held that defense must be given an opportunity to depose the plaintiff fully as to her injuries, their effects and her present disabilities. Accordingly, The District granted the Plaintiff’s Motion to Compel.

Indiana likewise utilizes the same rule.  See Pioneer Lumber, Inc. v. Bartels, 673 N.E.2d 12 (Ind.Ct.App.1996).  As the Indiana Court of Appeals noted in Pioneer Lumber, Inc., the purposes of discovery are best achieved by requiring the defense to disclose the existence of surveillance films or be prohibited from presenting them at trial and required that, before disclosure, the defense be given an opportunity to depose the plaintiff fully as to his injuries, their effects, and his present disabilities. The Court found that disclosure prior to trial preserves the impeachment value of the videotape and allowed the defense to obtain the information necessary for effective cross-examination and to secure rebuttal testimony relying upon Snead v. American Export-Isbrandtsen Lines, supra.  However, the Court of Appeals also allowed the Plaintiff an opportunity to inspect the tape and address the discrepancy that would result from misleading photography; the necessary background information should be made available to the plaintiffs’ attorney so the fraud can be exposed.

When the defense has had an opportunity to depose the Plaintiff, and never took any depositions or conducted any discovery beyond preliminary written requests, it should be required to disclose such evidence prior to trial or have it.

    Failure to file Income Tax Returns

This is a common issue, but there is surprisingly little authority to address the problem.  However, the authority that does exist is favorable.  Robert & Co. Assoc. v. Tgner, 351 S.E.2d 82, 89 (Ga. App. 1986) and Bohan v. Ritzo, 679 A.2d 597, 603 ( N.H. 1996).  In these cases, the Courts recognized the prejudicial effect and misleading character such evidence would have in the minds of the jury. See Rules of Evidence 402 and 403.

    Evidence of Insurance Coverage

Traditionally, courts have recognized that evidence concerning the availability of insurance coverage for a defendant or plaintiff injects prejudicial elements into the case.  See Rule of Evidence 411.

    Evidence of Prior or Subsequent Acts by a Party

Evidence of prior bad acts is inadmissible unless a proper foundation is laid showing that one of the noted exceptions is applicable.  Rule of Evidence 404(B).    Absent such a foundation, the only purpose, and result, of alluding to prior or subsequent negligent acts by the Defendant would be to prejudice the jury.  Rule of Evidence 403.

    Character Evidence

Evidence concerning a witness’s character for truthfulness (or lack thereof) or previous conviction is often the subject of pretrial motion. It goes without saying that this is an area where a court will not want to be surprised with examination about items which may be inadmissible and could result in a mistrial.  Rule 608 refers generally to the admissibility of character evidence that tends to bolster or undermine a witness’s credibility and it includes evidence in the form of opinion or reputation for truthfulness. Fed. R. Evid. 608(a). It also includes evidence of specific instances of conduct of a witness for purposes of attacking or supporting the witness’s character for truthfulness. Rule 609 refers to impeachment of a witness by admission of a prior conviction. In criminal trials, issues about the admissibility of prior convictions, particularly prior convictions of a cooperating witness, are some of the toughest trial issues that can arise.  You want to also be alert to exclude evidence of stale or old convictions (over ten years ago) and crimes which do no impact the character for truthfulness.  You should also take a look at Evidence Rules 404 and 405 which govern the use of character type evidence as well.

   Golden Rule Appeal

A ‘Golden Rule’ appeal in which the jury is asked to put itself in a party’s position “is universally recognized as improper because it encourages the jury to depart from neutrality and to decide the case on the basis of personal interest and bias rather than on the evidence.”  United States v. Teslim, 869 F.2d 316, 328 (7th Cir.1989); Spray- Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1246 (7th Cir.1982), aff’d, 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984) (quoting Ivy v. Security Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir.1978), rev’d on other grounds, 606 F.2d 524 (5th Cir.1979) (en banc), cert. denied, 446 U.S. 956, 100 S.Ct. 2927, 64 L.Ed.2d 815 (1980)). A Court has authority under Rule of Evidence 403 to preclude such argument, evidence, or inference from being made due to the danger of confusing the issues and prejudicing the jury.

Let me know of any addition topics you typically cover.  Thanks for reading.
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Motion in Limine: An Effective Pretrial Tool and Weapon (Part 3)

A “red herring” is normally used by people to divert the attention of others from something important; from the central point that is being considered. A “herring” is a kind of fish that turns red only when it is “cured” – that is, when it is smoked and salted. Such a fish emits a very strong smell and in the past criminals made use of red herrings to help them in their bid to escape the authorities. Convicts used the herring to help them throw dogs off his scent. Since the herring had a very strong smell, the police dogs followed the scent of the herring rather than that of the escaped convict! The original expression was “drag a red herring across the trail”, but now it’s been reduced to “red herring”. Below are more “red-herrings” to consider in filing a motion in limine:

        Motor Vehicle Citations.

Any mention that a party was not arrested, cited, ticketed, or charged with a crime misdemeanor, traffic violation, or traffic infraction is normally hearsay and is the out of court opinion of a non-party on the ultimate issue.  Such opinions arguably invade the province of the jury and may also violate the provision against providing opinions as to the ultimate issue under Rule of Evidence 704. Any attempt to tell the jury that a party was not “cited” by the investigating officer would be self-serving, prejudicial and misleading to the jury. See Rules of Evidence 402 and 403.

       Lawyer Created Case.

The defense may argue or insinuate that this is a lawyer created case. All cases which are filed are necessarily lawyer created which is both proper and constitutionally protected by both state and federal constitutional law guaranteeing a remedy and due process. If you are representing a client you should be  concerned that defense counsel may show to the jury in words or substance that plaintiffs’ lawyer has created the case or artificially  increased the medical expenses.  Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue in this cause.  See Rules of Evidence 402 and 403.

       Collateral Source Benefits.

The fact that the plaintiffs have received in the past, or may be entitled to receive in the future, benefits of any kind or character from a collateral source including, but not necessarily limited to, such collateral source benefits such as Workmen’s Compensation benefits, governmental benefits such as Social Security, or Veteran’s benefits, Medicare, Medicaid, or health insurance benefits.    Also, the fact that a plaintiff may have been paid for work missed is collateral source.   If your statutory or case law allows this type of motion, then you should consider filing it.

       Verdict Not Subject to Tax.

The fact that any recovery of a plaintiff for bodily injuries is not subject to any State or Federal income tax is normally not admissible.  Such information would only serve to confuse, mislead, and prejudice the jury.  This limitation is either supported by case law or statute or is found in the pattern jury instructions of your jurisdiction.  See also Rules of Evidence 402 and 403.

       Rising Insurance Rates or Inflation in General.

Mention of rising insurance rates or of inflation in general would clearly be immaterial and irrelevant to any issue in this cause and would only be introduced in trying to prejudice the plaintiff or reduce the amount of any judgment for plaintiff.  This is a classic appeal to prejudice of the jurors to serve their own self-interests in lower insurance premiums and is clearly inadmissible under Rules of Evidence  403 and 403.

       Poverty of the Defendant.

Any suggestion by defendant, his counsel or witnesses, that a judgment or verdict in this matter would have to be paid by the defendant our of his own assets, including comments about his lack of capital or assets, cannot be set up by the defendant in mitigation of damages suffered by plaintiffs and, is inadmissible except in cases where wealth may be a relevant consideration such as in claims for punitive damages or for bad faith.  If this does happen, the defense may be opening the door to evidence of insurance coverage.

       Other Claims and Litigation by Client.

This is a common red-herring.  Any other claims and litigation by a plaintiff should not be permitted to be introduced, because they are irrelevant and such attempt would be calculated to mislead and confuse the jury and work to the extreme prejudice of the plaintiffs. See Rules of Evidence 402 and 403.

Additional areas will be discussed in my next post.
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Motion in Limine: An Effective Pretrial Tool and Weapon (Part 2)

Here are some additional topics to consider:              

Unnecessary Medical Treatment.

You should preclude or prohibit the defense counsel from alleging or arguing that plaintiff’s accident-related medical expenses are unnecessary or unreasonable.  All damages directly attributable to the wrong are recoverable by the victim.  The law also typically allows an injured plaintiff to recover reasonable costs of necessary medical treatment.  Dee v. Becker, 636 N.E. 2d 176, 178 (Ind. App. 1994).  The Indiana Supreme Court has held that the phrase “reasonable and necessary,” as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another… . The Indiana Supreme Court observed and found that a defendant may not dispute the medical judgment of the plaintiff’s medical providers in choosing to administer the questioned studies and treatment. Sibbing v. Cave, 922 N.E.2d 594, 599-600 (Ind. 2010) Rule 413 of Evidence as adopted in Indiana eliminated the confusion regarding the evidence that is required to satisfy the “reasonableness” requirement.  The very first sentence of IRE 413 asserts flatly that medical statements occasioned by an injury are admissible.  Rule 413 provides that the bills shall constitute prima facie evidence that the charges are reasonable and medical bills come into evidence without any proof of reasonableness or necessity.  In Indiana, personal injury plaintiffs no longer have to prove that they personally paid the medical bills or produce an expert as to the reasonableness of the charge, just necessity when it is contested. Normally , competent medical testimony is necessary to enable the jury to determine which of a plaintiff’s damages and medical expenses are related to a trauma and which are not.  Sikora v. Fromm, 887, N.E.2d 499 (Ind. App. 2002).  In Sikora, the Court of Appeals stated that expenditures for various medical treatments, drugs, and tests, like MRI’s, cannot be properly evaluated by the jury without a medical explanation that they were causally connected to the fall.      

Seat Belts.

Depending on the state of the law in your jurisdiction, a defense counsel may be precluded from mentioning or offering any evidence concerning the plaintiff’s seat belt use or lack of seat belt use.      

Relation of Propert Damage to Injuries.

Any argument or suggestion by defense counsel that there is a causal connection or correlation between the amount or degree of property damage to the vehicles and the severity or degree of injury to the plaintiff. Because the facts of the collision and the damage to the vehicles involved are not at issue in this case, photographs or the vehicles, property damage invoices, or other evidence regarding the extent or amount of property damage is not relevant.  Rule of Evidence 401 defines relevant evidence as that which makes the existence of any fact of consequence more or less probably to be relevant.  RE 401.  Evidence that fails to meet that definition is irrelevant and is inadmissible.  RE 402.  Defense lawyers routinely introduce property damage estimates and property damage photographs to the jury and argue that minimal damage means little or no damage to the occupants.  There is no reliable scientific basis for the argument that there is a direct and reliable correlation between the degree of property damage to a vehicle and the type/severity of injury to the occupants.  Such photographs, if used for the purpose of disproving causation, are inadmissible because they are not relevant, may confuse or be misused and invite the jury to speculate on the issue of causation.    There is a lot out there on this topic.       

Settlement Discussions and Mediation

Any mention or suggestion to the jury that the plaintiff or defendant attempted to negotiate a settlement of this case or that the case is in trial because of greed or some other improper motive by plaintiff for not accepting an offer of settlement violate Rule 408. Any mention or suggestion to the jury that the case was submitted to mediation is normally proper except in case where the cause of action arises out of the settlement itself such as a claim of bad faith settlement practices, fraud or breach of the settlement agreement.  Rule of Evidence 408 specifically states that evidence of conduct or statements made in compromise negotiations are not admissible and that compromise negotiations “encompass alternative dispute resolution”.  Alternative Dispute Resolution Rules likewise limit the use of matter discussed during a settlement conference or mediation. Additional areas will be discussed in my next post.
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Motion in Limine: An Effective Pretrial Tool and Weapon (Part 1)

I plan on writing a series of posts dealing with motions in limine and the topics you may wish to cover. A Motion in Limine is a motion made for a protective order against prejudicial questions and statements, which if heard by the finder of fact, would prevent a fair and impartial trial.  The focal issue in determining whether a motion in limine should be granted is whether the prejudice in allowing admission of the proffered evidence outweighs any relevance the evidence may have.  Thus, the test involves weighing the relevance of the evidence against the possibility that the jury will consider the evidence improperly or be inflamed or confused by such evidence.  The balancing test goes beyond mere relevancy.  As stated by Professor McCormick:

But relevance is not always enough.  There may remain the question, is its value worth what it costs?  There are several counterbalancing factors which may move the court to exclude relevant evidence if they outweigh its probative value.  In order of their importance, they are these:  First, the danger that the facts offered may unduly arouse the jury’s emotions of prejudice, hostility, or sympathy.  Second, the probability that the proof and the answering evidence that it provokes may create a side issue that will unduly distract the jury from the main issues.  Evidence 2d, (1972) 438-439.

 A motion in limine is also effective in smoking out bad evidence you are unaware of as well.  Once you file such a motion in limine, the opposing party will have to disgorge their plans in response to your motion.  Here is a list of some potential topics you should consider.

         Prior Condition of Plaintiff.

You may want to precluded the defense from making any reference to a client’s prior physical or mental health unless such condition is causally connected or related to the injuries that plaintiff is claiming. To meet the threshold of relevance, and thus admissibility, the defendant must come forward with probative and competent medical testimony in support of the proposition that plaintiff’s pre-existing conditions or injuries are the cause of plaintiff’s symptoms and problems alleged in the lawsuit.  When the issue of a causal connection is not normally within the life experience and understanding of the jurors, then the testimony of an expert witness may be required depending on your jurisdiction’s law.  The mere existence of a pre-existing condition, without more, may be insufficient to make the evidence admissible as relevant to the “cause” of a plaintiff’s injuries.  When a defendant chooses to allege that a plaintiff’s symptoms and injuries are caused by a pre-existing condition (for the purpose of negating causation of plaintiff’s current injuries), then it is the defendant’s burden to satisfy the requirements of relevance and admissibility.  This analysis was cogently explained by the Court in Voykin v. Estate of DeBoer, 733 N.E.2d 1275 (Ill. 2000):

In Caley, the Defendant sought to question the plaintiff regarding the accidents occurring before and after the accident at issue.  The defendant’s theory was that these accidents were the cause of plaintiff’s injuries.  The defendant contended that, because the plaintiff always bears the burden of proving proximate cause, the defendant did not need to demonstrate a connection between the other accidents and the plaintiff’s injuries.  The appellate court rejected the defendant’s argument.  It explained that although the burden never shifts between parties, the “burden of going forward with the evidence may shift from party to party.”  Caley v. Manicke, 29 Ill. App. 2d 323, 327 (1961).  The court further reasoned that although the defendant bore the burden of demonstrating the connection between the other accidents and the plaintiff’s injuries, that did not mean that the burden of proof shifted to the defendant.  Caley, 29 Ill. App. 2d at 327, the court explained:

Proximate cause was part of plaintiff’s case.  It was as indispensable as the elements of defendant’s negligence, plaintiff’s freedom there from and damage.  Without it, plaintiff’s action would have failed.  But, when he has borne the burden of proof and established the material elements necessary to make out a case, it is the defendant’s right, but certainly not his duty, to put on his defense.  This is not shifting the burden of proof.  One cannot say to have a burden if one may pick it up or not as he pleases.  Obviously, if there is evidence negative of causation, a defendant would show it, but the law in according him his privilege of going forward in no way shifts to him the burden of proof as the law knows that phrase.

To evaluate testimony that sometime before a rear-end accident in question plaintiff had been bumped, bending a trunk handle, and that after the accident and before onset of a more serious lower back complaint, his front headlight was struck, to the status of contributing, intervening causes, suitable for submission to triers of fact, is to misread standards of relevancy required as preconditions of admissibility.  That this devolves on the defendant to the same extent as on the plaintiff initially in presenting his case, which it does, does not shift the burden of proof, or indeed have anything to do with it.  It is a question of relevancy, pure and simple.  Caley, Id. at 330.

The question remains, however, whether expert testimony is necessary to determine whether a prior injury is relevant to the current injury.  In a similar context, namely, medical malpractices cases, this court has recognized that expert testimony is normally necessary “because jurors are not skilled in the practice of medicine and would find it difficult without the help of medical evidence to determine any lack of necessary scientific skill on the part of the physician… [citations omitted].

We believe that similar considerations must govern here.  Without question, the human body is complex… In most cases the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson.  Because of this complexity, we do not believe that, in the normal circumstances, a lay juror can effectively or accurately assess the relationship between a prior injury and a current injury without expert assistance.  Consequently, we conclude that if the defendant wishes to introduce evidence that the Plaintiff has suffered a prior injury, whether to the “same part of the body” or not, the defendant must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence.  Voykin v. Estate of DeBoer, Id. At 56, 58-59.

The foregoing rationale for requiring expert medical testimony to support the relevance of a pre or post injury medical history was recently adopted in Muncie Indiana Transit Authority v. Smith, 743 N.E.2d 1214 (Ind. App. 2001):

According to the Arizona Court of Appeals, the “obvious reason for this rule is that lay persons are no better able to testify concerning the functioning of the human body than they are able to treat its infirmities.”  [citations omitted].  The Court further explained that although “most lay person have opinions and theories of their own as to how the human body functions, our courts have decided that, in order to recover compensation, a standard of expert evidence on the subject is required where the injury is not apparent to the layman.” [citations omitted].  When the cause of the injury is not one, which is apparent to a layperson, and multiple factors may have contributed to causation, expert evidence on the subject is required.

Absent competent and relevant evidence of a causal connection between a pre-existing condition and the injuries that plaintiff is alleging in this lawsuit, such evidence of any pre-existing condition may be inadmissible.

        Claims of Sudden Emergency.

In a defendant may lists as an affirmative defense a claim of sudden emergency. In my jurisdiction, the case law is clear that for the jury to be given the instructions defining the sudden emergency defense three factors must be shown in the evidence.

A.        The actor must not have created or brought about the emergency through her own negligence.

B.        The danger or peril confronting the actor must appear to be so imminent as to leave no time for deliberations.

C.        The actor’s apprehension of the peril must be reasonable.

Barnard v. Himes, 719 N.E. 2d at 862 (Ind. Ct. App. 1999).

If there is no factual basis for applying the sudden emergency defense, then allowing a defendant to suggest such defense would only confuse and mislead the jury. See Rule of Evidence 403 of the Federal Rules.

        Red- Herring Claims of Other Causes of a Plaintiff’s Injuries.

Counsel may be precluded from making any argument or articulating any theories as to the cause of plaintiff’s injuries unless defense counsel’s arguments and theories are in fact supported by competent expert medical testimony.  In the case of  Kristoff v. Glasson, 778 N.E. 2d 465 (Ind. App. 2002), the Indiana Court of Appeals held that defense counsel may not argue pre-existing injuries, failure to mitigate and subsequent injuries unless and until their arguments and theories are supported by competent medical testimony. Id. at 473.  If you know there is no evidence to support a bogus theory you may be well served in filing such a motion in limine.  It could also force the defense to disclose evidence you may have overlooked or which was not produced in discovery.

        Employment of Counsel.

The time or circumstances under which plaintiff employed counsel, including, the fee arrangement between the plaintiff and counsel is irrelevant unless there is an attorney fee claim by contract or statute.  The purpose of this evidence is to prejudice the jury and to portray to the jury that plaintiff is “litigious.”  Any such evidence is immaterial to the issues that will be decided by the jury and potentially very prejudicial.

        Unnecessary Medical Treatment.

You should preclude or prohibit the defense counsel from alleging or arguing that plaintiff’s accident-related medical expenses are unnecessary or unreasonable.  All damages directly attributable to the wrong are recoverable by the victim.  The law also typically allows an injured plaintiff to recover reasonable costs of necessary medical treatment.  Dee v. Becker, 636 N.E. 2d 176, 178 (Ind. App. 1994).  The Indiana Supreme Court has held that the phrase “reasonable and necessary,” as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another… . The Indiana Supreme Court observed and found that a defendant may not dispute the medical judgment of the plaintiff’s medical providers in choosing to administer the questioned studies and treatment. Sibbing v. Cave, 922 N.E.2d 594, 599-600 (Ind. 2010)

Rule 413 of Evidence as adopted in Indiana eliminated the confusion regarding the evidence that is required to satisfy the “reasonableness” requirement.  The very first sentence of IRE 413 asserts flatly that medical statements occasioned by an injury are admissible.  Rule 413 provides that the bills shall constitute prima facie evidence that the charges are reasonable and medical bills come into evidence without any proof of reasonableness or necessity.  In Indiana, personal injury plaintiffs no longer have to prove that they personally paid the medical bills or produce an expert as to the reasonableness of the charge, just necessity when it is contested. Normally , competent medical testimony is necessary to enable the jury to determine which of a plaintiff’s damages and medical expenses are related to a trauma and which are not.  Sikora v. Fromm, 887, N.E.2d 499 (Ind. App. 2002).  In Sikora, the Court of Appeals stated that expenditures for various medical treatments, drugs, and tests, like MRI’s, cannot be properly evaluated by the jury without a medical explanation that they were causally connected to the fall.

I will address additional areas to consider for a motion in limine in later posts.

Strategies for the Cross-Examination of Experts

memoryIn my last post, I discussed what a trial attorney can do to prepare for the cross-examination of an adverse expert. Below are some strategies that can be used in successfully cross-examining an adverse expert witness:

1. Favorable Evidence: One tactic that should not be ignored is using the opposing party’s expert to concede to facts favorable to your side of the case. These could include the fact that your client was injured by a motor vehicle collision, that there is no evidence that your client is a malingerer, that your own expert is well-qualified or well regarded in the community, etc. You can use the expert to corroborate the propositions which make up your expert’s opinion or reasons. This is why it is important to make sure you have the expert’s report and/or have taken his deposition. In this way you will know in advance whether the expert will agree with the proposition you want to prove. It is best to prove these favorable points before attacking the expert as he may be less willing to concede a point once you have attacked him as being biased.

2. Narrow the Expert’s Apparent Expertise: This is where having the expert’s curriculum vita (resume) in advance is important. If the accident reconstruction expert is self-taught or never went to college you may want to prove that he does not have a degree in mechanical engineering, in fact he has no degree at all, or the expert is not a certified professional engineer or a medical doctor and could not sit for a board examination even if he wanted. You can prove the expert has never taken engineering calculus or college physics, etc. If the expert is a psychologist, you can contrast his inability to prescribe medications with that of an actual medical doctor such as a psychiatrist who may do so.

3. Varying the Hypothetical: Inquire into the basis for or the underlying assumptions supporting an expert’s opinions and then ask the expert if the evidence showed “X” if this would change his opinion. Before asking such questions it is usually important to anchor the underlying principles and rules the expert is utilizing in analyzing the evidence and rendering his opinion. For example, I remember a neuropsychologist I cross-examined about his opinion that his patient had suffered permanent brain injury and brain atrophy as the result of a traumatic blow to the head. The Diagnostic and Statistical Manual used by the expert indicated that to make a differential diagnosis, one had to rule out other causes for these symptoms such as long-term abuse of alcohol. The expert agreed with these principles and the need for an accurate medical history to make an accurate opinion as to the cause or etiology of the patient’s symptoms. I asked him: “Would such information be important to know? Yes. Would the medical history affect the accuracy of his diagnosis and opinion? Yes. Later in his deposition, I looped back and confronted him with medical records establishing the patient’s long term abuse of alcoholism and his treatment for alcoholism. The expert agreed this evidence was important and ultimately withdrew his opinion after being presented with evidence of chronic alcoholism. Had he refused to concede this point, I would have argued to the jury that the expert did want to be confused by the facts as his mind was made up. The jury would have seen this expert as narrow-minded and dishonest.

4. Have the Witness Define Technical Terms: “Pull back the curtain” as Toto did in the Wizard of Oz and make the expert put his statements in simple plain English if a clearer understanding of the term is helpful to your side of the case. Experts love to speak in technical jargon that dresses up their testimony for very simple events. For example, if the doctor testifies that the witness had a “contusion” on his arm, then point out that this is just a fancy term for a “bruise”. This removes the mystery behind the expert’s testimony and allows the jury to make their own assessment instead of blindly relying on the expert.

5. Typos, Spelling and Math Errors: If the expert’s report has such mistakes, first show important it is for the expert to pay attention to detail and carefully review his opinions before submitting a report, then bring out these errors on cross. You can also have the opposing expert spell long complicated terms for the benefit of the court reporter. Sometimes experts will be unable to accurately spell such terms. If he stumbles you can continue to do this as the deposition precedes. If you suspect that the expert is using a computer program to do his calculations and is “math illiterate” provide him with a calculator and have him vary the input data and recalculate the speed of a vehicle or its stopping distance. Oftentimes experts are unable to do the calculations at all. You can later argue “sloppy in, sloppy out” or “garbage in, garbage out” or that the expert really is not very “expert”.

6. Use the Expert to Criticize His Own Client: Sometimes an opposing party will do something in a fashion that is not safe or wise. It could even be on a topic the expert was not hired to assess. Use the expert, to show that the procedures used by his client were unsafe, improper or ill-advised. This is especially useful if you know the expert will have to agree or look biased and/or stupid to contest such a proposition. Some experts will try to dodge the question by saying “I was not hired to make that sort of analysis”. Don’t let them side step your question and demand that answer “yes, no or I have no opinion”. If they say that they have “no opinion”, you can show that is something the other party (the expert’s client) could have asked the expert to analyze, but did not.

7. Lack of Firsthand Knowledge: Demonstrate the expert lacks firsthand knowledge. It may be a defense medical examination where the doctor saw your client only once or perhaps he is basing his opinion solely on his review of the medical records. In contrast, your client’s doctor has seen him over an extended period of time on numerous occasions. Ask the expert “It is always preferable to see a patient many times over an extended period in evaluating a person’s condition?” If you think it is unlikely he will agree with this, you can ask: “Was the plaintiff seen on this date by his own doctor and examined? Yes. Your examination of the patient was limited to single occasion. My client doctor saw him over 25 times? Yes. Over twenty-four months? Yes. You have to accept my client’s doctors observations as true because you were not there? You are limited to what is contained in the records? Yes.

8. Show the Expert’s Opinion is Based Upon Unreliable Evidence or Rests Upon the Truthfulness of a Questionable Source: If you can show that a witness relied upon by the expert is mistaken, inaccurate unreliable, or lying, then have the expert concede that this type of information is important to the accuracy of his opinion and that he is accepting this information as true, accurate and reliable. You can ask: “Unlike you, the jury will be able to evaluate the witness’s demeanor and credibility when they testify? Yes. Again you can use the “garbage in, garbage out” approach in closing to undermine the expert’s opinions if you can establish the supporting data is not reliable.

9. Lack of Thoroughness: Demonstrate that there are more tests the expert could have performed to get more accurate data to use in his analysis. This could be things such as the expert could have used a similar vehicle to figure stopping distances, that the expert failed to actually test the road’s surface to find the “actual” coefficient of friction instead of just taking some number out of a text-book or guessing.

10. Financial Bias: If the expert at issue has testified for the opposing party, attorney or insurance company before, point out how much money this relationship has generated for the expert or that the expert is a “whore” or a hired gun for the “defense” or “plaintiff”. You can use tax or business records to show this financial bias.

11. Inconsistent Positions: Find similar cases where the expert has testified on the opposite side of the issue. Use this inconsistency to show that the expert is not a scientist, but is rather an advocate for whichever side hires him. Use the expert’s own articles or writings to undermine contrary positions he has taken at trial.

12. Confront the Expert with Authoritative Materials: As mentioned in the earlier post, look for textbooks or journal articles you know the expert will have to agree are authoritative and reliable. You can read favorable points in during cross in support of your position under Rule of Evidence 803(18). This hearsay exception provides:

(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets that contradict the expert’s testimony on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

I hope these thoughts are of use to you the next time you take on an adverse expert witness. I would appreciate hearing of any strategies you may have. Good luck!
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