Search Results for trial notebook

iPad App doubles as a Trial Notebook

I was looking for a program that could emulate the structure of my file system I use for jury trials. I looked at several programs that were touted as the answer for use on my new iPad 2 I received for my birthday. I looked at all the Apple App World had to offer to no avail. I download one such program and found it to be slow and cumbersome to navigate through. I needed something with multiple tabs that could take advantage of the iPad touch-screen to navigate quickly to pull up needed information. This has always been one of the limitations of a laptop… its hard to navigate and pull up information as fast as you can with a well organized physical file. After giving up hope, I came acrossimage such app called simply “Outline” for the iPad. It will import notebooks from from the Microsoft program One-Note for ready use on the iPad. It works quite well and best of all it’s free. The materials are all organized just like my files and you can link documents such as depositions, medical journals and pleadings are linked for full review.

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The Trial Notebook: Being Prepared for “Unexpected” Legal Issues During Trial

During the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.

20111004-081849.jpg What is a trial notebook you may ask? Well my trial notebook represents twenty plus years of knowledge I have gained from my research, review of advance sheets, jury selection issues, trial procedure and evidentiary issues. I keep a three-ring binder with lettered tabs from A to Z. I use re-enforced three-ring paper and make notes on matters I come across which might arise during a trial and then file them under the right heading and index it under the proper lettered tab. Below is an example of such a note I have listed alphabetically under “P” in my trial notebook:

Privilege – Work Product – I.D. of Witness Statements

An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.

I especially concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.
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How to Use Your iPad and OneNote as a Secret Weapon for Use in Trial

I was looking for a program that could emulate the structure of my paper file system that I use for jury trials. I looked at several programs that were touted as the answer for use on my iPad. I looked at all the Apple App World had to offer to no avail. I download one such program and found it to be slow and cumbersome to navigate through. I needed something with multiple tabs that could take advantage of the iPad touch-screen to navigate quickly to pull up needed information. This has always been one of the limitations of a laptop… its hard to navigate and pull up information as fast as you can with a well-organized physical paper file. After giving up hope, I came across such app called simply “Outline” for the iPad. It will import “notebooks” from the Microsoft program One-Note for ready use on the iPad. Microsoft’s OneNote works well and is affordable. It costs about $15.00 and the OneNote is likewise affordable and is typically included as part of the Microsoft Suite of Windows Business Programs. The OneNote program was designed by Microsoft as a program that could be used by students to organize their class notes and research projects. It is similar to EverNote.

I usually set up and organize my case file in the OneNote program on my desktop at work and then transfer the file to my iPad using one of several applications or programs. The iPad app can be synced with your laptop or desktop computer by a number of means, including Drop Box and iTunes. The materials are all organized just like the hard copy of my files and you can paste either links to or an electronic copy of documents such as depositions, medical journals articles and pleadings for full review.

So such as, I have major categories of documents such as pleadings, correspondence, opening, closing, instructions, pretrial motions, jury selection, evidence research, law research, medical research, settlement demands, medical records, witnesses, defense expert, exhibits, investigation, etc. These categories are listed across the top and can be scrolled through side by side. Individual documents in each major group are shown as tabs on the side of the screen and can be scrolled through up and down with a touch of your finger. I organize the tabs on top and on the side alphabetically or numerically as the case may be for ready access. If you tap the page with your finger, the program will open that page.

On each page you can paste objects or links. These can consist of Word Documents, text files, PDF, audio recordings, photographs, and deposition transcripts. These can be tapped and viewed with other applications or through “quick view” which is compatible with most of your documents. Audio files can be played with other compatible applications you have installed on your iPad. You can also electronically “print” a copy of the file onto the page as well and scroll up and down the page and read it.

It not only gives you the capability of carrying your entire file up to the podium, it will allow you to take multiple files home with you in your brief case. I can take home what amounts to twenty or thirty banker boxes home with me on my iPad. The “Outline” program accommodates multiple “notebooks” which can be search for text individually or collectively. I even have a separate notebook set up with tabs for procedural and evidentiary research notes for ready reference at Court. Below is an example of how a notebook appears:

I hope you will try this system. It is quite amazing once you get the hang of it. It is a cost-effective solution that you can easily tailor to the way that you organize your trial and case files.

Fireside Reading for the Trial Lawyer

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The next best thing to being in court is reading about it. The following is a list of books I believe will help you become a better trial attorney:

1.Polarizing the Case: Exposing and Defeating the Malingering Myth by Rick Friedman ;- this book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position ;that your client is “a liar, a cheat and a fraud” or completely abandon this position. The book provides a comprehensive approach to simplify your case and deal with a single coherent theme… Is my client telling truth about her injuries?

2. Rick Friedman on Becoming a Trial Lawyer by Rick Friedman – a great book for young lawyers about what it takes to become a real “trial attorney”.

3. David Ball on Damages by David Ball– an excellent book on strategies and methods to help jurors better appreciate the scope of damages and why it is necessary to compensate those who have been damage or injured.

4. The Art of Cross-Examination by Francis Wellman ;- classic legal literature which still rings true today on various techniques for cross-examination.

5. Closing Argument: The Last Battle ;- This book is a well-organized ;collection of miscellaneous arguments and analogies which can be ;used to explain and illustrate various legal issues and address common defense attorney arguments and tactics which are used ;to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case. The book has ;a number of very effective arguments which address topics such as calculating money damages for pain and suffering, adverse witnesses, the burden of proof/ reasonable man standard, subtle appeals to prejudice, and other often ;encountered issues in civil cases. A review of the table of contents will give you a good idea of this book’s value.

6. Win Your Case: How to Present, Persuade, and Prevail by Gerry Spence – this book will help you fine your own voice and become a more effective advocate for you clients.

7. Exposing Deceptive Defense Doctors by Dorothy Clay Sims ;- this book provides in-depth check lists and strategies for dealing with defense medical examinations of all sorts.

8. Theater Tips and Strategies for Jury Trials by David Ball ;- this book analyzes all aspects of your presentation to juries to become a more effective communicator in the courtroom.

9. The Best Defense by Alan M. Dershowitz– a practical eye-opening guide to what criminal defense attorneys face in terms of bias and corruption in our criminal justice system based upon cases where Professor Dershowitz of Harvard has acted as defense counsel.

10. ;Letters to a Young Lawyer by Alan M. Dershowitz – advice to young lawyers on ethics, professionalism and pitfalls to avoid in the practice of law.

11. I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know By Jim M. Perdue – a wonderful compendium of stories that bring to life how legal protections arose such as trial by citizen jurors and the separation and exclusion of witnesses from the courtroom.

12. In the Interest of Justice: Great Opening & Closing Statements by Joel Seidemann ;- this is ;a collection of notable of opening and closing statements in famous cases.

13. THE ELEMENTS OF STYLE by William Strunk – a short guide on how write clearly and concisely.

14. The Devil’s Advocates by Michael S. Lief – ;this ;is ;a collection of notable of opening and closing statements in famous criminal cases.

15. A Rulebook for Arguments (Fourth Edition) by Anthony Weston – it is a concise guide on argument structure and use.

16. Lawyers’ Poker: 52 Lessons that Lawyers Can Learn from Card Players by Steven Lubet – the book uses poker as an analogical means illustrating various points of law.

17. Ladies and Gentlemen Of The Jury by Michael S. Lief ;- this ;book contains transcripts notable ; opening and closing statements in famous cases.

18.And the Walls Came Tumbling Down by Michael S Lief ;- ; ;this ;book contains transcripts notable ;closing statements ; made in famous civil rights cases.

19. The Trial Lawyers: The Nation’s Top Litigators Tell How They Win by Emily Couric ;- a behind the scenes disclosure of methods used by experts in litigation to prepare and try cases.

20. The Trial Lawyer: What It Takes to Win by David Berg – this book provides a comprehensive overview of what it takes to win at trial.

21.McElhaney’s Trial Notebook by James W. McElhaney ;- A collection of ;essays on trial advocacy by Professor McElhaney ;covers a number of ;areas involved in modern-day litigation. ;

22. ; To Kill a Mockingbird by Harper Lee – The classic novel of a courageous lawyer taking on the unpopular cause of a black man charged with raping a white woman. ; This book displays the best and worse of our justice system and has inspired a number of people to become lawyers.

There are many more books out there worthy of consideration. This is simply a short list of books I would recommend you read.

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Closing Argument – Shelving Some Good Ideas

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What are some other resources I should consult?  Here is a list of books dealing directly with closing arguments that should offer both guidance and inspiration:

  1. Polarizing the Case: Exposing and Defeating the Malingering Myth by Rick Friedman: This book provides an innovative approach to trying cases. Too often we allow the defense in personal-injury cases to hide behind ambiguities and insinuate that client is not being truthful. This book provides you with concrete examples to force your opponent to either embrace fully embrace the position; that your client is “a liar, a cheat and a fraud” or completely abandon this position. The book provides a comprehensive approach to simplify your case and deal with a single coherent theme… Is my client telling truth about her injuries?
  2. David Ball on Damages by David Ball: An excellent book on strategies and methods to help jurors better appreciate the scope of damages and why it is necessary to compensate those who have been damage or injured.
  3. Closing Argument: The Last Battle by Mike Papantonio: This book is a well-organized collection of miscellaneous arguments and analogies which can be used to explain and illustrate various legal issues and address common defense attorney arguments and tactics which are used to undercut, confuse, distract or sidetrack juries from the central issues in a personal injury case. The book has a number of very effective arguments which address topics such as calculating money damages for pain and suffering, adverse witnesses, the burden of proof/ reasonable man standard, subtle appeals to prejudice, and other often encountered issues in civil cases. A review of the table of contents will give you a good idea of this book’s value.
  4. Win Your Case: How to Present, Persuade, and Prevail by Gerry Spence: This book will help you find your own voice and become a more effective advocate for you clients.
  5. Theater Tips and Strategies for Jury Trials by David Ball: This book analyzes all aspects of your presentation to juries to become a more effective communicator in the courtroom.
  6. I Remember Atticus: Inspiring Stories Every Trial Lawyer Should Know by Jim M. Perdue: A wonderful compendium of stories that bring to life how legal protections arose such as trial by citizen jurors and the separation and exclusion of witnesses from the courtroom.
  7. In the Interest of Justice: Great Opening & Closing Statements by Joel Seidemann: This is a collection of notable of opening and closing statements in famous cases.
  8. The Devil’s Advocates by Michael S. Lief: This is a collection of notable of opening and closing statements in famous criminal cases.
  9. A Rulebook for Arguments (Fourth Edition) by Anthony Weston: A concise guide on argument structure and use.
  10. Ladies and Gentlemen Of The Jury by Michael S. Lief: This book contains transcripts of notable opening and closing statements in famous cases.
  11. And the Walls Came Tumbling Down by Michael S Lief: This book contains transcripts notable closing statements made in famous civil rights cases.
  12. The Trial Lawyer: What It Takes to Win by David Berg: This book provides a comprehensive overview of what it takes to win at trial.
  13. McElhaney’s Trial Notebook by James W. McElhaney: A collection of essays on trial advocacy by Professor McElhaney which covers a number of areas involved in modern-day litigation.
  14. Moe Levine on Advocacy by Moe Levine: A treasure trove of effective arguments for the plaintiff’s attorney.
  15. The Art of Summation edited by Melvin Block: A collection of fine arguments from the New York Bar published during the 1960s. This book stands the test of time.
  16. The Lost Art: An Advocate’s Guide to Effective Closing Argumen by Judge Joseph F. Anderson, Jr.: This book is a treasure trove of great ideas, quotations, analogies and the law governing closing argument.  It is probably my favorite of those listed above.

There are many more books out there worthy of consideration. This is simply a short list of books I would recommend you read.

Why It Doesn’t Always Pay to be the Smartest Guy in the Room

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Ego… All good trial attorneys have it.  Without a little ego it would be difficult to stand up and try to persuade a bunch of strangers you just met to acquit your client or award your client a significant sum of money.  It takes not hard work and preparation, but a fair amount of moxie and courage to be an effective trial attorney.  However, it does not always pay to be the smartest guy in the room.  I learned this early on as a trial attorney while prosecuting  cases.  I would always work hard to anticipate evidentiary issues that might arise, look up cases, copy and highlight them so I was ready if a question of admissibility were to arise.  As my experience grew, I incorporated this research into my trial notebook which I have covered in an earlier post.  Sometimes in my zeal to win and impress the judge, I would jump the gun before it was really necessary and start quoting case-law and the rules of evidence or procedure to the judge.  Most judges have a fair amount of ego too and want to believe that they are the smartest guy in the room.   Even if they aren’t, most juries will think that they are. Some judges even have what is commonly called “black-robe-it is” and feel that they are infallible and will demean attorneys who dare to disagree with them.  Now, if I see that the judge is likely to take up my position on a legal point, I don’t interrupt, interject authority or case-law until I am asked to so by the Court.  It better for the judge to think your position is the judge’s own idea and take ownership of your position.  I am careful to let the judge shine as the smartest guy in the room as long as things are moving in my client’s favor.  So next time a legal issue arise, pause and see how the Court is approaching the topic before speaking.  Then you will be the smartest guy in the room, even if you are the only who knows it.

Admissibility Checklist

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QUESTION #1: Is it Authentic? (If Not, How do I Authenticate/Identify the Evidence?)
Is the item the “Real McCoy”? Is it what you say it is? To establish that an item is “authentic,” think about the problem from the standpoint of how you determine whether anything you come in contact is “real” versus being a “fake,” or if it has somehow been “altered” or “changed.” The more “generic” an item of evidence is, the greater the level of care and proof required to establish it is “real.” The more unique or one-of-a-kind an item of evidence is, the easier it will be to prove that it is what you say it is. Legal cases typically discuss whether an item of evidence is “fungible” versus “non-fungible.” A “fungible” item of evidence is something that is generic in character, such as a white powdery substance.
For fungible items, such as blood and drugs, an adequate foundation requires that the whereabouts of the item be shown from the time it came into the possession of the party (or state) until it is admitted into evidence at trial. Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993). 
A proper foundation requires that a witness identify the item, and the item is relevant to the disposition of the case. Id. The party presenting the evidence must lay an adequate foundation by providing reasonable assurances that the evidence was undisturbed as it passed from the custody of one person to the next (the chain of custody). Id. If the party presenting the item presents evidence that strongly suggests the exact whereabouts of the evidence at all times, that is sufficient. Id.; Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992)(positive identification is not required). A reasonable probability that it is what you say it is will normally be sufficient to have the item admitted into evidence. Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994). Once a reasonable probability is shown, any other factual issues only impact the exhibit’s evidentiary weight, not it’s admissibility. Malone v. State, 700 N.E.2d 780, 782 (Ind. 1998).
On the other hand, for non-fungible items, like guns and vehicles (which typically have unique serial numbers or VINs), the party presenting the evidence need only show that the item is what it is purported to be, and that it is in a substantially unchanged state from the time it was first collected. Trotter v. State, 559 N.E.2d 585, 591 (Ind.1990).
A similar problem arises with documentary evidence such as letters, notes or wills. Who authored the document? Has the document been changed or altered? The degree of proof required to establish authenticity is only slight. Once established, the document may be presented to the finder of fact. Pate v. First Nat. Bank of Aurora, 63 Ind. 254 (1878). Once this initial threshold is met by the proponent of the evidence, any disputes go to the weight the evidence is to be accorded by the jury, as opposed to its admissibility.
Authenticity typically is established by the person who first found the item. You must establish that it is the same item that originally came into that person’s possession, and that it is unchanged and has not been altered. With a generic/fungible item of evidence, care must be taken to seal it up in a tamper-proof container that has a unique means of identification (evidence number assigned and dated by the person who originally secured the evidence); and a secure storage/retrieval method must be used to hold it. (e.g., evidence clerk or custodian who has held the item of evidence in a restricted area). If anyone removed the item of evidence for purposes of testing, that person may be required to provide testimony as well to explain what if any changes in the item occurred as part of the testing process.
Indiana Rules of Evidence 901(Requirement of Authentication or Identification), 902 (Self-authentication) and 903 (Subscribing Witness’ Testimony Unnecessary) directly address issues of authenticity and provide examples of how to authenticate various items of evidence this with or without a sponsoring witness. Examples of authenticity under Indiana Rule of Evidence 901 include: 1) testimony of witness with knowledge; 2) non-expert opinion on handwriting; 3) comparison by trier of fact or expert witness; 4) distinctive characteristics; 5) distinctive characteristics taken in conjunction with circumstances; 6) voice identification; 7) telephone conversations; 8) public records or reports; 9) process or system, and 10) methods provided by statute or rule.
Indiana Rule of Evidence 902 provides a list of various classes of documents that are self-authenticating, which include: 1) domestic public documents under seal; 2) domestic public documents not under seal; 3) foreign public documents; 4) certified copies of public records; 5) official publications by a public authority; 6) newspapers and periodicals; 7) trade inscriptions, signs, tags, or labels; 8) acknowledged documents; 9) commercial paper and related documents; 10) presumptions under Acts of Congress; 11) certified domestic records of regularly conducted activity, and 12) certified foreign records of regularly conducted activity.
Indiana Evidence Rule 903 provides the means by which notarized or acknowledged documents may be admitted without calling the witness who notarized the document. This Rule provides:
“SUBSCRIBING WITNESS’ TESTIMONY UNNECESSARY. The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.”
A notarized document with an appropriate acknowledgment and seal is prima facie evidence of authenticity. Indiana Code 34-37-1-5. Under I. C. 34-37-1-5, when a document is under seal and signature of an out-of-state notary public, it shall be received as presumptive evidence of the document’s authenticity. Usually authentication of an official record requires the officer having custody of the record to attest, by either testimony or through a certification, that it is a true and accurate copy of an official original record. Liberty Nat. Bank and Trust Co. v. Payton, 602 N.E.2d 530, (Ind. Ct. App. 1992).
Contracts or other documents upon which an action is based and attached to the party’s complaint or cross/counterclaim are considered authentic unless the document’s authenticity is challenged in a verified response to the claim or complaint. See Ind. Rule of Trial Procedure 9.2. This rule provides “[w]hen any pleading … is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading… and “shall be taken as part of the record.” When such a document is included in or filed with the pleading, execution of such instrument, endorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit. I encourage all to thoroughly review this rule anytime such a claim is based upon a written instrument.
Remember, agreeing or stipulating that a document is authentic does not necessarily mean the item is admissible. You need to address all of the issues that affect a document’s admissibility, so please read on.

QUESTION #2: Is it Hearsay?
When I took evidence in class over 30 years ago, my professor cautioned that the “Hearsay Rule” and the “Rule against Perpetuities” in real property class were two of the most difficult concepts to master. My daughter, who is in law school now, advises that the “Rule against Perpetuities” is not even taught in law school anymore. On the other hand, if you are going to try cases you need to understand and quickly recognize what hearsay is. The way I break it down is as follows:
a. Was the statement (oral or written) first made outside of the courtroom? 
If the statement is being made for the very first time in the courtroom, then it is not hearsay. If the witness is repeating something that was said outside of the courtroom, or the document being tendered as an exhibit was drafted outside of the courtroom, then you need to ask the next question.
b.Is there a statement of fact being conveyed? If the statement is a question or a command, then it is not hearsay. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ind. R. of Evid. 801(c). Only declarative statements of fact can be hearsay (i.e. the car is red). A “question” or a “command” is neither true or false.
c.Does the statement only have evidentiary value at trial if it is true? For example, a false statement made to a victim by a con man in a fraud case is not being offered because it is true. In fact, it is being offered because it is false to show the “effect of the hearer”. Therefore, it is not hearsay.
d.Does the statement fall outside of the definition for non-hearsay as a prior statement by a witness subject to cross-examination? For example, if the statement is not considered an admission by party-opponent offered against them (i.e. their own statement; a statement of another adopted by the party; a statement by an authorized spokesperson, employee or agent; or that of a co-conspirator in furtherance of the joint scheme) then it is non-hearsay by definition. Indiana Rule of Evidence 801(d).
If you answered “yes” to each of these questions, then you have hearsay and need to look for an exception to the hearsay rule under Indiana Rules of Evidence 803 (hearsay exceptions; availability of declarant immaterial), 804 (hearsay exceptions; declarant unavailable), 806 (attacking and supporting credibility of declarant) or 807 (residual or catchall exception).
Another rule that can impact the admissibility of a hearsay statement, that is often overlooked, is Indiana Rule of Evidence 1007 which deals with testimony or written admissions of a party. Rule 1007 provides:
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.
This rule can be very powerful in situations where you take a Trial Rule 30(B)(6) deposition of a party or a corporate representative. If they summarize written policies or the content of documents, recordings or photos, then you can dispense with using the original.

QUESTION #3: Is There a Proper Foundation?
These are usually preliminary questions of fact to the admissibility of a document or statement. In a bind, the Indiana Rules of Evidence provide some assistance in establishing an item’s authenticity or other foundational prerequisites. Rule 104(a) of the Indiana Rules of Evidence allows a court to consider matters outside of the record presented to the jury. Under Rule 104(a) you can sometimes establish foundational requirements outside of the presence of the jury. 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. [Emphasis Added].

This means, theoretically speaking, that the court is free to suspend the Rules of Evidence in making foundational determinations, and could theoretically rely on otherwise inadmissible information in assessing whether an item meets the foundational requirements. Foundation is needed to establish:

1.Authenticity. Is it the “Real McCoy”? Does it have a proper chain of custody?
2.Competency, expertise or qualifications to render a lay or expert opinion or testify 
in general (i.e. a person cannot appreciate the significance of their oath to tell the truth). See Indiana Rules of Evidence 701 and 702.
3.The requirements of a hearsay exception.
4.The truth and accuracy of a depiction through the use of a copy, duplicate, photograph, x-ray, diagram, recording, video, printout, etc.
5.The validity of the procedure and results of forensic testing or examinations. (DNA, blood typing, fiber/hair analysis, fingerprints, handwriting identification, etc.).

QUESTION #4: Is it Relevant?
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ind. R. of Evid. 401. It does not have to win the case to be admissible, it just has to have a tendency to help your case or hurt the other side’s case. All relevant evidence is admissible, except as otherwise provided by the United States or Indiana constitutions, by statute not in conflict with these rules, by these rules or by other rules applicable in the courts of this State. Evidence that is not relevant is not admissible. Ind. R. of Evid. 402.

QUESTION #5: Should the Evidence be Excluded?
There are a number of reasons an item could be excluded, assuming a timely and specific objection is made. The following is a checklist of such reasons:
a.Irrelevant. See I.R.E. 401 and 402 (Relevancy).
b.Violates the Best Evidence Rule. I.R.E. 1002 (Requirement of Original).
c.Privileged Evidence. I.R.E. 501, and I.C. 34-46-3-1. (Attorney-Client, Work 
 Product, Official Information, Deliberative Process/Self-Critical Analysis, 
 Husband-Wife, Minister-Penitent, Doctor-Patient, Psychologist, Accountant, 
 Insured-Insurer, News Source, Confidential Informant, Trade Secrets, Self- 
 Incrimination, Mental Health Records, etc.).
d.Improper Conclusion or Opinion. (I.R.E. 701 and 702).
e.Hearsay. (I.R.E. 801, 802, 803, 804, 805, and 806).
f.Cumulative, Repetitive, Unfairly Prejudicial, Misleading or Confusion of the 
 Issues. (I.R.E. 403).
g.Competency or Lack of Firsthand Knowledge. (I.R.E. 601, 602, 605, 606).
h.Lack of Foundation.
i.Parole Evidence Rule/Four Corners Doctrine. (Dicen v. New Sesco, Inc., 839 
 N.E.2d 684, 688 (Ind. 2005) and I.C. 26-1-2-202.)
j.Deadman’s Statute. (Ind. Code 34-45-2-4).
k.Statute of Frauds. (I.C. 26-1-2-202, IC 32-21-1-1, Requirement of written 
 agreement).
l.Improper Impeachment. (I.R.E. 613).
m.Subsequent Remedial Measures. (I.R.E. 407).
n.Irrelevant, Settlement Discussions. (I.R.E. 408).
o.Irrelevant, Evidence of Liability Insurance. (I.R.E. 411).
p.Irrelevant, Payment of Medical Expenses. (I.R.E.409).
q.Irrelevant, Withdrawal of Pleas or Offers. (I.R.E. 410).
r.Irrelevant, Evidence of Past Sexual Conduct. (I.R.E. 412).
s.Irrelevant, Evidence of Bad Acts. (I.R.E. 404 and 608).
t.Irrelevant, Evidence of Character. (I.R.E. 405).
u.Irrelevant, Evidence of Prior Conviction. (I.R.E. 609).
v.Irrelevant, Evidence of Religious Beliefs or Opinions. (I.R.E. 610).
w.Failure to Disclose Evidence as part of Discovery or Pretrial Conference 
 Proceedings. (Ind. T.R. 16 and 26(E)).
x.Unrecorded Statements During Custodial Interrogation. (I.R.E. 617).
y.Involuntary or Coerced Statement in Violation of Due Process. Fifth and 
 Fourteenth Amendments to U.S. Constitution; Indiana Constitution, Article 1., 
 Sec. 15.
z.Violation of Miranda and Right to Counsel. Fifth, Sixth and Fourteenth 
 Amendments to U.S. Constitution; Indiana Constitution, Article 1., Sec. 13 and 14.
aa.Product of an Improper Search and Seizure. Fourth and Fourteenth Amendments 
 to U.S. Constitution; Indiana Constitution, Article 1., Sec. 11 and 15.

QUESTION #6: What is the Proper Way to Introduce the Item into Evidence?
Check with the court reporter or other attorneys to learn of any idiosyncrasies the presiding judge has concerning the presentation of exhibits and approaching a witness during the examination. When in doubt, ask for permission before approaching a witness. The following is a suggested procedure for admitting documentary evidence:
a.Have the exhibit marked (if not pre-marked) in advance of the trial.
b.Approach opposing counsel’s table and allow them to examine the exhibit prior to 
 approaching the witness if the exhibit was not disclosed in advance.
c.Seek permission from the court to approach the witness.
d.Show the witness the exhibit, and ask him to identify it for the record without 
disclosing its content.
e.Establish the document’s authenticity and any foundational prerequisites for purposes of satisfying objections under the hearsay rule or the rules governing opinions.
f.Tender the exhibit for admission into evidence and address any objections.
g.Obtain a ruling from the court on the item’s admissibility.
h.If the ruling is adverse, try to remedy the objection.
i.If the court continues to deny admission of the exhibit, then make an offer of 
 proof outside of the presence or hearing of the jury and have the exhibit made part 
 of the record as part of your offer to prove. (I.R.E 103).
j.If admitted, ask permission to have the exhibit shown or published to the jurors.
k.If the jurors are allowed to review the exhibit, wait until their review is finished 
 before asking any further questions so their attention is not divided.
Conclusion
You should run through these questions any time you are preparing for a trial. You should find case law or rules to support your position on admissibility and make note of them in your witness outline or exhibit list. If you are sure a matter will become contested, have extra copies of your case law, statute or rules so that they can be provided to the court and opposing counsel.
Finally, during the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.
What is a trial notebook? Well, my trial notebook represents 30+ years of knowledge I have gained through legal research, review of advance sheets and hard knocks in the courtroom. It covers jury selection issues, jury instruction, motion in limine topics, trial procedure and evidentiary issues. I focus on issues that could come up unexpectedly during a trial where it is difficult to conduct legal research. For years,I kept a three-ring binder with lettered tabs from A to Z. I used re-enforced three-ring paper and made notes on matters. When I come across an issue which might arise during a trial, I make a note and file it under the subject heading and index it under the proper lettered tab. I have been slowly transferring this information to an electronic trial note book. I use Microsoft OneNote and an iPad application called “Outline” which allows me to create various tabs and alphabetize the topics. Below is an example of a note I have listed alphabetically under “P” in my trial notebook:
Privilege – Work Product – I.D. of Witness Statements
An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.
In my trial notebook, I concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict, as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.

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