Monthly Archives: May 2015

What the Post Hoc?

The Post Hoc fallacy derives its name from the Latin phrase “Post hoc, ergo propter hoc.” This has been traditionally interpreted as meaning “After this, therefore because of this.” This fallacy is committed when it is concluded that one event causes another simply because the proposed cause occurred before the proposed effect.  This is the very reason why two events being highly correlated does not mean one caused the other. There could be a third factor which causes the other two events to occur.  The two events might be related as cause-and-effect, but typically you need more than just a coincidence that the two things occurred at the same time.  A great analogy to make this point comes from one of my favorite books about teaching philosophy principles through jokes “Plato and a Platypus Walk into a Bar . . .”.  Here you go:

Ninety-year-old man  meets a beautiful young blonde  in her mid-20s and decides to marry her  against his family’s best advice.  Nine months later his young wife tells him that she is pregnant.  The old man proudly marches in  to see his doctor and announces  the “good  news”.  The doctor looking at the old man smiles  and says, “I want to tell you a story…  A man wakes up in the morning  in a hurry to go bear hunting and as he leaves his home instead of grabbing his shotgun,  he grabs his cane.   While out in the woods  he comes upon a bear,  raises his cane up, aims it at the bear and attempts to pull the trigger.  Immediately at that point, there is a loud bang and the bear drops over dead.  The doctor looks at the old man  and asks, “what do you think happened?”   The old man replies,  “why somebody else shot the bear. ”   The  doctor quickly quips, “my point exactly”.

Need I say more?

 

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Shutting Off the Defense Doctor’s Flood of Misinformation

floodgatesIn my last post, I discussed an analogy to deal with tactics used by your opponent to muddy the waters.  Well, the problem is you have to drag the hogs out of the spring waters and it takes time to clear matters up. What if you could keep them out of the water altogether?

Have you ever had a defense doctor summarize everything under the sun regarding your client’s medical history in an effort to cloud the issues or mislead the jury, knowing you cannot afford to drag every doctor into court to undo the harm?   Well a good portion of such evidence may be totally inadmissible.

Contrary to what a number of attorneys argue. The Rules of Evidence do not permit the admission of materials relied upon by expert witness for truth of matters they contain, if the materials are otherwise inadmissible. Rules of Evidence Rule 703. Faulkner v. Markkay of Indiana, Inc., 633 N.E.2d 798. (Ind. Ct. App 1996).  The Rules simply allow the expert’s opinion to be based upon matters outside the official court record, if it is the sort of information typically relied upon in the expert’s field to render an opinion.

Evidence Rule 703 states, “[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by a experts in the field.” Ind. Evid. R. 702 permits the admission of expert opinion testimony but not opinions contained in documents prepared out of court by other medical doctors.  Evidence Rule 703 permits a testifying expert to rely on such materials, including inadmissible hearsay, in forming the basis of his opinion.

However, it does not allow an expert’s reliance on hearsay or other inadmissible evidence to be used as a conduit for placing unavailable experts or physicians’ statements before a jury.  In other words, the expert witness must rely on his own expertise in reaching his opinion and may not simply repeat the opinions of others. See Miller v. State, 575 N.E.2d 272, 274-75 (Ind.1991) (physician could rely upon but not repeat what another physician told him about diagnosis of defendant’s girlfriend).

Opinions or diagnosis of doctors who are unavailable to testify and not subject to cross examination do not come in as business records under Rule of Evidence 803(6).  Where a party seeks to admit medical or hospital records that contain opinions, the proponent of the records is required to establish the expertise of the opinion giver under Rule of Evidence 702.  Cook v. Whitesell-Sherman, 796 N.E.2d 271, 278 (Ind. 2003); Wilkinson v. Swafford, 811 N.E.2d 374, 391 (Ind. Ct. App. 2004)(citing In re Matter of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004)), abrogated on other grounds by Willis v. Westerfield, 839 N.E.2d 1179 (Ind. 2006); Walker v. Cuppett, 808 N.E.2d 85, 97-98 (Ind. Ct. App. 2004).  If the proponent fails to satisfy this foundational requirement, then such records are inadmissible.  See  Also.  Schloot v. Guinevere Real Estate Corp., 697 N.E.2d 1273 (Ind.App.1998), (held that medical opinions within the certified medical records were not admissible).  Similarly, Rule of Evidence 703 permits experts to base their opinions on hearsay, but does not permit them to testify as to hearsay medical opinions.

Nor are they admissible as statements made for purposes of diagnosis or treatment under Rule of Evidence 803(4). That exception is limited to only statements made by patients, not doctors. Sibbing v. Cave, 922 N.E.2d 594, (Ind. 2010)(prohibited plaintiff from reciting hearsay testimony at trial about what doctor told her about her injuries and diagnosis).

Finally, if such opinions or diagnosis are included in your client’s medical history, such statements represent multiple levels of hearsay based upon conversations by the client with doctors or other healthcare providers who are not subject to cross-examination and whose qualifications to render an expert opinion have not yet been established.  Each level of hearsay must separately satisfy the requirements of Evidence Rules 702, 802 and 901 (authenticity). See Rule of Evidence 805 which deals with multiple levels of hearsay.  This rule states, “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”

One caveat to note on cross-examination of the defense doctor.  Rule 703  does allow for you to inquire on cross examination at to the basis. It provides “The expert may in any event be required to disclose the underlying facts or data on cross-examination.”  However, be careful because you could open the door to inadmissible and damaging items being brought out on redirect.

Be ready for this issue and close the floodgates of misinformation through the use of timely objections or a motion in limine.

Character Assassination and the Mud Springs

 
 An ad hominem attack is a tactic whereby you attack the man instead of the validity of his argument or position. The fallacy of such an attack is that it completely ignores what is really important… Is the argument logical and accurate.  
Character assassination is an old tactic used to win battles whether they are at the ballot box or in the courtroom. If you don’t like someone, then you are less likely to side with them and more likely to forget what the case is really about and decide it on an emotional basis. In the Karen Silkwood case, Gerry Spence used the following analogy to point this out to the jury and counteract the defense’s tactics of misdirection and obfuscation leveled against Karen Silkwood who gave her life courageously exposing problems at a nuclear power plant: 
“I’ll tell you a bigger defense than that — and that’s getting drowned in mud springs. My favorite jurist has an old saying. He says if you want to clear up the water, you’ve got to get the hogs out of the spring. If you can’t get the hogs out of the spring, I guarantee you can’t clean up the water. During the course of this trial, you have observed a process by which you have been invited over and over again to get down into the mud springs where you can’t see — where you can’t understand — where things are all muddy. Getting jurors confused is not a proper part of jurisprudence — and getting people down in the mud springs is not the way to try a case.”
Don’t let your opponent drag you or client through the mud. Use this analogy to point this tactic out.

Closing Argument: How to Combat Guilt by Association

HarvestingOftentimes, we have clients who through no fault of their own grow up in difficult circumstances or are simply in the wrong place at the wrong time.   The opposing attorney may try to paint your client as less than worthy in the eyes of the law.   However, remember that lady justice holds the scales of justice blindfolded so that all are treated equally without the consideration of improper factors or prejudice about how they may look or where they find themselves stationed in life.  Below is a useful analogy that Gerry Spence made use in his criminal defense of Randy Weaver against the federal government in dealing with guilt by association:

A farmer had difficulty with a flock of crows plundering his crops. As a result, the farmer put up a large net high in the air to catch the offending crows as they flew over his fields filled with crops. At the end of the day, the farmer pulled down his net and among all the crows which had attacked his crops was a single white swan. The farmer pulled the birds off of the net one by one and wrung their necks to kill them.

When the farmer came to the swan, the swan cried out, “I’m just a swan! I’m not a crow! I was just flying by and got caught in your net.” The farmer responded, “Why you must be a crow, because I caught you in my net.”

The innocent swan died at the hands of the farmer that day because it was in the wrong place at the wrong time. The farmer assumed it was a crow even though the swan had done nothing wrong.

That’s what we call “guilt by association”. It has no place in our system of justice as it is proof of nothing. We all know that it’s wrong to jump to such a conclusion, but that’s what the other side has done here. And they are asking you now to do the same thing by finding my client “guilty by association”.

 

Another analogy that comes to mind from the bible is the following Parable of the Weeds used by Jesus in describing judgment day in Matthew 13:24-30 :

Jesus told them another parable: “The kingdom of heaven is like a man who sowed good seed in his field. 25 But while everyone was sleeping, his enemy came and sowed weeds among the wheat, and went away.  When the wheat sprouted and formed heads, then the weeds also appeared.

“The owner’s servants came to him and said, ‘Sir, didn’t you sow good seed in your field? Where then did the weeds come from?’

“‘An enemy did this,’ he replied.

“The servants asked him, ‘Do you want us to go and pull them up?’

“‘No,’ he answered, ‘because while you are pulling the weeds, you may uproot the wheat with them.  Let both grow together until the harvest. At that time, I will tell the harvesters: First collect the weeds and tie them in bundles to be burned; then gather the wheat and bring it into my barn.’”

Does not my client deserve the same consideration?  Shouldn’t he be judge based upon who he is and not who he is with or where he lives?

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