Author Archives: Richard A. Cook

Impeccable Impeachment and the Use of Prior Convictions

img_0925“Trust is not simply a matter of truthfulness, or even constancy. It is also a matter of amity and goodwill. We trust those who have our best interests at heart, and mistrust those who seem deaf to our concerns.”   Gary Hamel

What are the limitations on the use of prior convictions in challenging a witness’s credibility? When are you allowed to use them? What are you allowed to reveal?  This blawg note will explore these issues.  Let’s first start with the rule:

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a)      General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must  be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.

(b)      Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (10) years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1)       its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2)      the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c)       Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1)       the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or

(2)      the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d)      Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1)       it is offered in a criminal case;

(2)      the adjudication was of a witness other than the defendant;

(3)      an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4)      admitting the evidence is necessary to fairly determine guilt or innocence.

(e)      Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

                Juvenile Convictions:  Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).

Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied. 

When Does the 10 Year Period Begin and End:  There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998).   “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.

Guilty Pleas:  The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)).  McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.

Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect:   Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996).  Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993).  To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect.  This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.

Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:

(1) the impeachment value of the prior crime;

(2) the point in time of the conviction and the witness’ subsequent history;

(3) the similarity between the past crime and the charged crimes;

(4) the importance of the defendant’s testimony; and

(5) the centrality of the credibility issue.

Castor, 937 F.2d at 299 n. 8; see Miller, at 171.

Impeaching Your Own Witness:  Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).

Revelations Concerning the Facts Surrounding the Conviction:  When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001).  A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction.  Id.   However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible.  Id.

Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.

 

What are the limitations on the use of prior convictions? When are you allowed to use them? What are you allowed to reveal?  This note will explore these issues.  Let’s first start with the rule:

Rule 609. Impeachment by Evidence of a Criminal Conviction

(a)      General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime or an attempt of a crime must  be admitted but only if the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving dishonesty or false statement, including perjury.

(b)      Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than ten (10) years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1)       its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2)      the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

(c)       Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if:

(1)       the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one (1) year; or

(2)      the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d)      Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1)       it is offered in a criminal case;

(2)      the adjudication was of a witness other than the defendant;

(3)      an adult’s conviction for that offense would be admissible to attack the adult’s credibility; and

(4)      admitting the evidence is necessary to fairly determine guilt or innocence.

(e)      Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.

Below are some thoughts on some of the issues concerning the use and admissibility of prior convictions:

                Juvenile Convictions:  Generally, evidence relating to juvenile delinquency proceedings cannot be used as evidence for purposes of impeachment. Ind. Evidence Rule 609(d) (1996). See also Goolsby v. State, 517 N.E.2d 54, 61 (Ind.1987) (juvenile delinquency proceedings are considered civil in nature and consequently may not be used to impeach a defendant in a criminal proceeding); Perkins v. State, 483 N.E.2d 1379, 1384 (Ind.1985) (holding that juvenile adjudications may not be used for impeachment purposes because the disposition of a juvenile does not constitute a criminal conviction).

Opening the Door: Where a party opens the door to inquiries about his criminal past, evidence of a prior conviction are admissible even though no notice was given pursuant to Evidence Rule 609(b). See Wales v. State, 768 N.E.2d 513, 520-21 (Ind.Ct.App.2002), aff’d on reh’g, 774 N.E.2d 116 (Ind.Ct.App. 2002), trans. denied. 

When Does the 10 Year Period Begin and End:  There is disagreement among jurisdictions as to the termination point of the ten-year period. See 4 J. WEINSTEIN, WEINSTEIN’S FEDERAL EVIDENCE § 609.06[2] (2d ed. 2003) (“There has also been some uncertainty about what event concludes the running of the 10-year period.”). Three different termination points have been identified by various jurisdictions. Some jurisdictions identify the termination point as the date trial begins. See United States v. Thompson, 806 F.2d 1332, 1339 (7th Cir.1986); United States v. Cathey, 591 F.2d 268, 274 n. 13 (5th Cir.1979); Sinegal v. State, 789 S.W.2d 383, 388 (Tex.App.1990). Other jurisdictions identify the termination date as the date the witness testifies or the evidence is offered. See Pepe v. Jayne, 761 F.Supp. 338, 342-43 (D.N.J.1991), aff’d, 947 F.2d 936 (3d Cir.1991); Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 881 (E.D.Pa.1988). The termination of the ten-year limit has also been identified as the date of the charged offense. See United States v. Foley, 683 F.2d 273, 277 (8th Cir.1982), cert. denied; State v. Ihnot, 575 N.W.2d 581, 585 (Minn.1998).   “Because it is the jury which must evaluate the witness’ credibility, the most appropriate time to conclude the ten year period is the date the jury actually hears the witness testify that he had been convicted of a crime.” Trindle v. Sonat Marine, Inc., 697 F.Supp. 879, 882 (E.D.Pa.1988), cited with approval by, Whiteside v. State, 853 N.E.2d 1021, 1027 (Ind. App. 2006). Judge Weinstein opines that the date the witness testifies is the appropriate termination point of the ten-year period. As he notes in his treatise, “The time of testimony appears most appropriate, since the jury must determine credibility at that moment.” 4 WEINSTEIN § 609.06[2] at 609-49; Trindle v. Sonat Marine, supra.

Guilty Pleas:  The issue of whether a guilty plea, not yet reduced to judgment, constitutes a conviction for impeachment purposes has been resolved here as well. Specht v. State, 734 N.E.2d 239 (Ind. 2000). Prior to the adoption of the Indiana Rules of Evidence, Indiana courts held that a guilty plea did, stating, “when there has been a plea of guilty it is a conviction of crime and the presumption of innocence no longer follows the defendant…. The fact that final judgment was not rendered does not alter the fact that he stands convicted of the crime to which he has entered a plea.” McDaniel v. State, 268 Ind. 380, 383, 375 N.E.2d 228, 230 (1978) (citing State v. Redman, 183 Ind. 332, 109 N.E. 184 (1915)).  McDaniel is still good law under the Indiana Rules of Evidence. Specht v. State, 734 N.E.2d at 240.

Probative Value of Conviction Must Substantially Outweigh Its Prejudicial Effect:   Cases that have discussed Rule 609(b) and the ten-year limitation have dealt with situations where the defendant wanted to impeach a State witness with prior convictions that were more than ten years old. See Stephenson v. State, 742 N.E.2d 463, 485 (Ind.2001);Schwestak v. State, 674 N.E.2d 962, 963 (Ind.1996).  Rule 609(b), unlike Rule 403, presumes the exclusion of convictions more than ten years old. See Robert Lowell Miller, Jr., Indiana Practice, Vol. 13, § 609.202, 170 (1991). As such, the party seeking to admit such convictions “must support the argument for probative value with specific facts and circumstances upon which the trial court may base a finding of admissibility.” Id. In addition, the trial court must balance the probative value against the prejudicial effect of the old convictions on the record under Rule 609(b) for an abuse of discretion. Stephenson, 742 N.E.2d at 485, Schwestak, 674 N.E.2d at 965; see United States v. Reed, 2 F.3d 1441, 1448 (7th Cir.1993).  To be admissible, the probative value, supported by specific facts and circumstances, must substantially outweigh its prejudicial effect.  This is the reverse of the test under Rule 403 which errors on the side of admitting evidence unless its prejudicial impact substantially outweighs its probative value.

Under Rule 608(b), our courts use the five-part test first enunciated in United States v. Mahone, 537 F.2d 922, 929 (7th Cir.) cert denied, 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 627 (1976), and reaffirmed in United States v. Castor, 937 F.2d 293 (7th Cir.1991), is instructive and has been adopted by Indiana courts. Under this test, the trial court is to consider the following five factors, but this list is not exclusive:

(1) the impeachment value of the prior crime;

(2) the point in time of the conviction and the witness’ subsequent history;

(3) the similarity between the past crime and the charged crimes;

(4) the importance of the defendant’s testimony; and

(5) the centrality of the credibility issue.

Castor, 937 F.2d at 299 n. 8; see Miller, at 171.

Impeaching Your Own Witness:  Even though Evidence Rule 607 authorizes a party to impeach the credibility of his own witness, a party is forbidden from placing a witness on the stand if his sole purpose in doing so is to present otherwise inadmissible evidence cloaked as impeachment. Appleton v. State, 740 N.E.2d 122, 125 (Ind. 2001).

Revelations Concerning the Facts Surrounding the Conviction:  When a prior conviction is introduced for impeachment purposes, the details of the conviction may bot be explored. Oliver v. State, 755 N.E>2d 582, 586 (Ind. 2001).  A person can only be questioned about having been convicted of a particular crime, and not the circumstances surrounding the conviction.  Id.   However, if a party elicits information that leaves the jury with a false or misleading impression of the facts involved, such conduct may open the door to additional questions to explore the matter more fully even though such an inquiry would have initially been impermissible.  Id.

Hopefully, the information here will allow you to make use of a prior criminal conviction for purposes of impeachment and prevent such evidence from being misused against your client should the tables be turned upon you.

 

Do it for the love…

Today I learned Magistrate LaRue died after leaving legacy of doing justice on the bench as fine and fair jurist.  As a private attorney she advocated for civil rights for the everyday man.  She did it for the love.  

A friend of my son Al, John Overton, released a rap/hip hop Album “While I Was Away” which contains a song my son collaborated with him on  called “Do It for the Love” which carries this theme through it lyrics.  They are pursuing their love making music.

I have always told my children all I want is “the love”.  Life is short and uncertain. No matter what your goals in life are “do it for the love”, not the money.  Your greatest chance for personal fulfillment is to do what you love.  As the line goes “if you do a job you love, you’ll never work a day in your life”.

I am lucky because I am doing what I love… advocating for the everyday man sometimes against long odds and literally at times fighting City Hall.  To those, such as myself, who are fortunate enough to have the privilege to practice law,  pursue justice and strive for excellence, but above all else do it for the love. God bless…

Limiting the Damage

So you lose an evidentiary argument and the court allows some potentially prejudicial evidence to be presented for some narrow purpose such as bias, impeachment or to show intent, similar plan, motive or scheme.  So what should you do?  

Indiana follows “the rule of multiple admissibility” endorsed by the evidence treatises of both Whitmore and McCormick. Under this rule, evidence that is admissible for one purpose is admissible, even though it might be excluded from consideration by the jury if it was offered for another improper purpose.  The opponent of the evidence is protected, not by exclusion of the evidence, but instead by the use of a limiting instruction. Indiana Evidence Rule 105 provides:

 “If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”

The party seeking to limit the evidence has the duty to request the instruction. Small v. State, 736 N.E.2d 742, 746 (Ind. 2000) (observing “a trial court has no affirmative duty to admonish a jury sua sponte as to such evidentiary matters”).  As a result you should ask the court to specifically define the area of use and address inappropriate inferences or uses which are prohibited.  Indiana Pattern Instruction No. 527 Evidence Admitted for a Limited Purposes states:

During the trial, I instructed you to consider certain evidence only for specific, limited purposes. You must consider that evidence only for those limited purposes.

Evidence relevant for some legitimate purpose,  can only be excluded if it violates the precepts of Indiana Rule of Evidence 403.  Under this rule, the danger of unfair prejudice has to substantially outweigh the evidence’s probative value in order to exclude it, thereby tipping the scales in favor of admissibility.

Keep these thoughts in mind the next time you need to limit the damage…

Admissibility and the Burden of Proof are as Different as Apples and Oranges…

In a recent case, the Indiana Court of Appeals held that a nurse practitioner can provide expert medical testimony in areas previously reserved to only medical doctors.  In the decision from the Indiana Court of Appeals it allowed a Nurse Practitioner to testify as an expert witnesses in a soft-tissue case. See the link below:

http://publicaccess.courts.in.gov/Appellate/Document?id=186f4912-5b99-4061-8760-648e61c69cb5

In the decision,the Indiana Court of Appeals held that a nurse practitioner may testify that an injury was consistent with being injured in a particular way, but could go no further unless they witnesses the injury occur.

What is admissible and the admissibility standard applied are different than the quantum of evidence required to meet the necessary burden of proof and avoid a directed verdict. For example under our evidentiary rules relevance is determined by:

Rule 401. Test for Relevant Evidence

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Admissibility for evidentiary purposes requires you to meet a very low threshold as seen above under IRE 401.  As a result, I would stick with a “reasonable degree of medical probability” in formulating medical/legal questions needed to establish an essential element of your claim. A particular medical finding could be consistent with multiple diagnoses. A mere possibility makes a finding consistent, but not necessarily probable.  So exercise discretion.  

The Corrosive Effects of Greed on Credibility 

“Don’t take a good case, try to make it a great case, and turn it into a bad case.”    Richard Cook 

I never take on a new client without sharing the quote above with them.  The most valuable component of any personal injury case is the client’s credibility… period, end of case. If you exaggerate or stretch your claim beyond the bounds of your evidence, then your client will lose credibility, devalue your client’s claim and lose their case.

The number one tactic most defense attorneys use to undermine a personal injury case, is to encourage the injured client to overstate or exaggerate their claim while under oath in a deposition or to omit their history of a past injury to the same portion of the body or to hide a prior collision or claim. The client thinks, “Why tell them, they may never find out.”  However, they almost always do. The defense argues, “Why did your client do these things (they said they couldn’t do)?  Simple… because they don’t have a legitimate claim.”

Honesty is not just the best moral policy, it is also the best economic policy when it comes to the value of a personal injury case.  

So don’t forget the quote and don’t let your client forget it either.

Readying Your Experts for Traps and Tough Questions


Depositions are dangerous time for your expert.  Dangerous traps lies just around the corner. You cannot relax.  Here are some thoughts on this important topic.

1. Tendencies of your expert: If you can obtain and read past depositions of your
expert to see not only what type of questions are asked but how he reacts. Does he ramble or
argue? Does he fail to listen to the question or dodge it? Is he argumentative or polite and
professional? You may want to run through some questions, especially problems so your expert
is ready to address them. If the expert is new to the practice, I would video tape the questioning
so the expert can see how he reacts objectively evaluate his performance.  

2. Do not hide bad evidence from your expert, deal with it. If you hide bad
evidence from your expert, you will expose your expert to potential embarrassment. He may
even be force to abandon your side of the case because he was not prepared for what was coming
and unwittingly made imprudent concessions earlier in the deposition.  

3. What does the expert consider authoritative as a learned treatise? This will
be asked. How will he answer the question? If at all possible, avoid doing the deposition in the expert’s office. It will only provide bookshelves full of ideas for authoritative materials to ask
and cross examine your expert about at trial  

4. Screen your expert. Make sure you have already screened your expert’s curriculum vita in
advance for any bluster or bull not supported by the facts. Hopefully, this was done before  you ever hired your expert.  

5. Obtain Historical Medical Records. The prior medical history of a Plaintiff can
seriously undermine a case’s value and the client’s credibility. It is important to obtain all  significant prior medical history from a client. If you don’t, the defense attorney will. Without a  full medical history, a client is prone to make misstatements and create fertile ground for  purposes of impeachment at the time of trial. Likewise, expert witnesses will be unable to  address and deal with any potential weaknesses you might have as a result of any pre-existing  medical condition or prior injury. While it is tempting to limit your pretrial production of  records to those postdating the injury, it is better to do the investigation yourself ahead of time.  

6. Prepare a Medical Chronology – A detailed medical chronology prepared ahead
of their deposition, will give you a means to identify and refresh the expert’s memory regarding  past illnesses and injuries, and avoid making misstatements at the time of the deposition, or  worse, at the time of trial. In addition, by reviewing the past medical chronology with your  expert, you can address responses to the resolution of prior symptoms and/or problems.  

7. Prior Lawsuits and Claims – It is important to promptly identify any prior
litigation your expert may have been involved in as either a litigant or as a witness. The prior  proceedings can create a ready resource of impeachment through the use of pleadings, discovery  responses and depositions. Failure to identify such easily verifiable information can also make it  appear as if your expert is a liar. The prior litigation also provides background information on your expert that could lead to surprises.  

 
8. Compound Questions – Compound questions are questions, which incorporate  two questions in one. They are very deceptive and dangerous because a yes or no answer can be  interpreted as an affirmative response to the underlying predicate. For example, “Do you beat  your wife only on Tuesdays and Thursdays?” is actually two questions in one. The first question  is, “Do you beat your wife?” and if yes, is it only on Tuesdays and Thursdays? Make sure your  expert can identify an undisclosed predicate to a question which makes it compound in case you  fail to object.  

9. Summary Questions – Another classic approach to the compound question is to
summarize an expert’s prior testimony, and then ask at the tail end a yes or no question. Experts  often focus only on the yes or no question, and forget that by answering the question without  objection or clarification they are affirming the entire scenario outlined in the question. While  you, as an attorney, should object to such questions, it is important to educate the expert on these problems as well, in case you fall asleep at the switch.  

10. Box Questions – Questions in Absolute Terms – Questions cast in absolute
terms can also be a problem. Opposing counsel wants to limit your expert’s basis for his opinions and show that he overlooked or ignored some important facts. If he is attempting to exhaust your
expert’s knowledge of the facts on a topic, your expert should indicate “that is all I can recall at
this time.” This leaves an opening to refresh your expert’s memory and supplement or correct  the answer through the errata sheet. Whenever an attorney uses such terms as, “Do you always” or, “Have you never,” they are attempting to lock your expert in absolute terms. There is nothing  wrong with being absolutely sure, you just want to make sure that that is, in fact, the case. If  there are exceptions, then the expert needs to avoid answering such questions in the affirmative.  On the other hand, defense attorneys will use such absolute terms as a means of unnerving an  expert and backing them off of their testimony. The point is, make sure if you answer in absolute  terms, that you’re absolutely correct.  

11. Milk-Toast Answers – The flip side of this is to water down answers with
qualifiers such as, “I think,” “I believe,” or, “In my opinion,” when you actually know the facts.  Make sure your expert avoids using such terminology. It is better to indicate that you don’t know  or recall than to guess or speculate. Once again, the primary rule is to answer truthfully and  accurately.  

12. Do not exaggerate – Don’t take a good case, try to make it a great case, and turn
it into a bad case. Do not be an advocate. Be an expert.  

13. Remember you are a professional. Don’t respond in kind to impolite or rude
comments by opposing counsel. The only thing a witness has absolute control over is their  behavior and demeanor. By emphasizing this point with your expert, you can both empower and  relax them. No matter how rude or aggressive the other attorney is, it’s important for the expert  to remain calm and composed. By doing this, the deposition will typically be shorter. When an  opposing attorney senses he has drawn blood, he will simply bore in with more of the same. An  expert can tactically overcome this by simply remaining calm. Likewise, the expert needs to be  cautioned to avoid any sarcasm or insincere solicitous comments.  

14. Identify and explain what items which are privileged – Another classic
question to unnerve a witness t that attorneys will often use is, “Have you talked too anybody  about this case?” Sometimes, a witness will think that they’ve done something wrong by  discussing their testimony in advance. The expert should be put at ease that there is nothing  wrong with preparing for their deposition or meeting with you in advance. In fact, most jurors  expect attorneys to meet with their witnesses, in order to properly prepare for trial or a  deposition. Discussions with counsel are privileged as work product because they are  communication with counsel. See Fed. R. Civ. P. 26(b)(4)(C). If the question is posed by  opposing counsel and you fall asleep at the switch, you want to make sure that your expert seeks  a clarification as to whether the attorney is, “Asking for information discussed with counsel.” If  your expert has discussed the case with other persons, you want to identify this well in advance  of the deposition. Some experts, especially teaching experts, will discuss pending cases during  their lectures. I can recall one case where this occurred and the expert was impeached at trial  with tape recordings of his lecture with devastating effect. Loose lips sink both ships and cases.  

15. Review all evidentiary foundations – You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.

16. Standard of proof or level of confidence required – this distinction has
somewhat dissipated. However, a number of judges are still requiring use of the magic words.
Typically at the beginning it make sense to asked that you expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.  

 
17. Reliance on materials outside of the court record. The facts or data in the  particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on  inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘if in reaching his  opinions and conclusions in this case, did he use only materials reasonably relied upon by  persons in his field?  

 18. The Subpoena Duces Tecum Trap – Make sure any subpoena is dealt with well
in advance of the deposition. You should personally review with your expert all items sought
and insure nothing is “lost” or destroyed which is in existence at the time the subpoena is issued.
A privilege log should be prepared for any items withheld and a motion for protective order
sought if agreement cannot be reached on how to handle the subpoena. Blanket claims of  privilege are not favored. The party seeking to avoid discovery has the burden of establishing the
essential elements of the privilege being invoked. United States v. Lawless, 709 F.2d 485,  487(7th Cir.1983). The claim of privilege must be made and sustained on a question-by-question
or document-by-document basis. Id., citing United States v. First State Bank, 691 F.2d 332,  335(7th Cir.1982); Matter of Walsh, 623 F.2d 489, 493 (7th Cir.1980), cert. denied, 449 U.S.
994, 101 S.Ct. 531, 66 L.Ed.2d 291. Spoliation of evidence by your expert in response to a  subpoena can lead to sanctions, a contempt citation and an adverse instruction to the jury.  Spesco, Inc. v. General Elec. Co., 719 F.2d 233, 239 (7th Cir. 1983); see also Adkins v. Mid- America Growers, Inc., 141 F.R.D. 466, 473 (N.D. Ill. 1992) (“In cases where evidence has been
intentionally destroyed, it may be presumed that the materials were relevant.”).  

19. Give the shortest accurate answer… Remember a deposition is not a
conversation – The purpose of a discovery deposition is to learn as much as one can about the
opposing expert. When answering a question give the shortest accurate answer. Explain only
when asked. Do not ramble. Repeat after me: A deposition is not a conversation. A deposition
is not a conversation. A deposition is not a conversation! 

Run through these points with your expert so he can avoids the “traps” of litigation and not end up stuck in the “sand.”

Guarding Your Expert from Aggressive Counsel

 
Preparation is your greatest tool to avoid problems caused by difficult or agressive
attorneys. Ultimately, once you are at the deposition there is little you can do without risking
sanctions. Harassing behavior. If an attorney engages in ongoing harassing behavior which
is truly beyond the pale, call the magistrate of court and have a discovery conference. However,
make sure it is truly exceptional. 

 As mentioned earlier, your best tool to control the deposition is to prepare your expert. If
truly extraordinary harassment or name calling occurs and persists even after you have addressed
it on the record, and the Court is not available to resolve your dispute, you can move to terminate
the deposition. Rule 30(d)(3) of the Federal Rules of Civil Procedure allows a litigant to suspend
a deposition at any point for the purpose of filing a motion to terminate or limit the deposition on  the grounds that it is “being conducted in a manner that unreasonably annoys, embarrasses or  oppresses the deponent or the litigant.” Obscenity or insults, persistent questioning that  embarrasses a witness or concerns privileged matter are sufficient grounds for suspending or  terminating a deposition. See Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007); Lewis v. United  Air Lines Transp. Corp., 32 F. Supp. 21 (W.D. Pa. 1940); Broadbent v. Moore-McCormack  Lines, 5 F.R.D. 220 (E.D. Pa. 1946); Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965).  

If a suspension is sought, the deposition remains postponed until such time as the court issues an
order. The loser is subject to fees and sanctions under Rule 37(a)(5). Smith v. Logansport Community Schools Corp., 139 F.R.D. 637 (N.D. Ind. 1991).

Getting Your Expert Ready for Court – How to Play the Course and Avoid the Rough.

What does an Expert Witness Needs to Know About Court Proceedings? Here are some thoughts to keep you expert out of the rough:

 
1. Review all evidentiary foundations. You should review the appropriate
foundational requirements for the admission of any records, tests, or other analysis which is not
stipulated to by the opposing party. Remember under Rule of Evidence 703, your expert can
consider matters outside the evidentiary record at trial in reaching his opinion.  

2. Standard of proof or level of confidence required. This distinction has
somewhat dissipated. However, a number of judges still require the use of the “magic words.”
Typically, at the beginning, it makes sense to ask that your expert give his opinion in the case
based upon a reasonable degree of medical or scientific probability unless instructed otherwise.
Caution your expert to avoid using the phrase “possible” since it is legally meaningless.  

 
3. Reliance on materials outside of the court record. The facts or data in the
particular case upon which an expert bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing. Experts may testify to opinions based on
inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the
field. Federal Rule of Evidence 703. Typically, I would ask the expert ‘If in reaching his  opinions and conclusions in this case, did he use only materials reasonably relied upon by  persons in his field? 

4. Role as an educator/not an advocate. KISS—Keep it simple, stupid! Avoid
technical terms. Use models or diagrams whenever possible. Above all, make it interesting!  The expert should be enlightening, not boring! In this regard, less is more. Get to the point early. The expert needs to be an educator, not an advocate. That’s your job.  

5. Professional demeanor. Make sure your expert has the knowledge and control
to avoiding taking the bait! No matter how the opposing attorney acts, your expert must stay
polite and professional. Avoid sarcasm or insults. Credibility will ultimately be lost.  

6. Review of demonstrative evidence. If you are going to use charts, models or
diagrams, make sure they are properly disclosed in advance, and if possible included with your
expert’s report. Likewise, summaries under Rule 1006 need to be produced in advance.  

7. In court demonstrations or “experiments”. Make sure you practice them and
they will definitely work. You don’t want to hear, “If it doesn’t fit, you must acquit.”

8. Review prior materials for any mistakes or errors. Look one last time for
problems. Deal with any mistakes or error on direct, and deal with any shortcomings honestly.
You will gain credibility and avoid the sting of these topics on cross-examination.  

9. Absent Subpoena Duces Tecum, limit materials brought to court. Bring only
those items which have previously been produced. Be ready to answer questions regarding
compensation paid, and hours of work spent. Remind your expert that he is paid for his time, not
his opinion.  

10. Contrast and compare expert’s qualifications with those of any opposing
expert. Show what he brings to the table that the other expert is missing, whether it is in the way
of experience, time spent, or knowledge. Show the jury why your expert is the better guide.  

11. Cover adequacy of facts included in any hypothetical questions. If you plan
or may ask a hypothetical question, make sure you review the relevant factors in advance of trial
with your expert so you are both on the same page. Write out your question so you are
consistent in the way you ask it.  

12. Likely tactics of opposing counsel. Know your opponent. In the seminal book, “
The Art of War” Sun Tzu advises:

“If you know the enemy and know yourself, you need not fear the
result of a hundred battles. If you know yourself but not the enemy,  for every victory gained you will also suffer a defeat. If you know  neither the enemy nor yourself, you will succumb in every battle.”  

Ask around and learn your opponent as well as yourself and your own case, and you, too, will
have nothing to fear.

Polling a Jury: How to Keep Yourself Out of La La Land…

So the clerk finishes reading the jury’s verdict and your client has just lost.  What do you do? Why read the jury rules:

RULE 30. JUDGE TO READ THE VERDICT

When the jury has agreed upon its verdict, the foreperson shall sign the appropriate verdict form. When returned into court, the judge shall read the verdict. The court or either party may poll the jury. If a juror dissents from the verdict, the jury shall again be sent out to deliberate.

 I always poll a jury just in case.  After seeking permission of the court, I run down the line and separately ask each juror if this is their verdict. 

It’s painful to hear the bad news again, but you owe it to your client and your case to be sure. As Yogi Berra said, “It ain’t over, until it’s over.”

Hey, just because the Oscars never announced the wrong winner in 88 years doesn’t mean it cannot happen.  If you fail to poll the jury, you could end up in “La La Land” instead of basking in the “Moonlight.”

Expert Witness Reports – Avoiding Litigation Sand Traps – What They Should and Should Not Include

You have hired an expert and are in need of a report or findings for you expert disclosures. What do you do?  Here is a short checklist of things to consider:

 
1. Compliance with Federal Rule of Civil Procedure 26. This probably is a good
place to start. The Rule provides in pertinent part as follows for witnesses hired in anticipation
of litigation:

(2) Disclosure of Expert Testimony.

(A) In General. In addition to the disclosures required by Rule

26(a)(1), a party must disclose to the other parties the identity of

any witness it may use at trial to present evidence under Federal

Rule of Evidence 702, 703, or 705.

Regarding reports, the Rule goes on to state:

(B) Witnesses Who Must Provide a Written Report.

Unless otherwise stipulated or ordered by the court, this disclosure
must be accompanied by a written report—prepared and signed by
the witness—if the witness is one retained or specially employed to
provide expert testimony in the case or one whose duties as the party’s employee regularly involves giving expert testimony.  

The report must contain:

(i) A complete statement of all opinions the witness will
express and the basis and reasons for them;  

ii) The facts or data considered by the witness in forming
them;

(iii) Any exhibits that will be used to summarize or support
them;

(iv) The witness’s qualifications, including a list of all
publications authored in the previous 10 years;  

(v) A list of all other cases in which, during the previous 4
years, the witness testified as an expert at trial or by
deposition; and  

(vi) A statement of the compensation to be paid for the study
and testimony in the case.

As to those witnesses who are typically skilled witnesses or fact witnesses with specialized or
technical knowledge, it states:

(C) Witnesses Who Do Not Provide a Written Report. Unless
otherwise stipulated or ordered by the court, if the witness is not
required to provide a written report, this disclosure must state:  

(i) The subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703, or
705; and  

(ii) A summary of the facts and opinions to which the witness
is expected to testify.  

The timing of these disclosures is typically outlined in the Case Management Plan as noted in the
Rule:

(D) Time to Disclose Expert Testimony. A party must make these
disclosures at the times and in the sequence that the court orders.  Absent a stipulation or a court order, the disclosures must be made: 

(i) At least 90 days before the date set for trial or for the case
to be ready for trial; or  

(ii) If the evidence is intended solely to contradict or rebut
evidence on the same subject matter identified by another
party under Rule 26(a)(2)(B) or (C), within 30 days after the other  party’s disclosure.  

(E) Supplementing the Disclosure. The parties must supplement
these disclosures when required under Rule 26(e).  

Do not forget the obligation to seasonably supplement your expert responses!
This obligation is continuing and requires no additional request by the opposing party.

 2. Narrative of facts versus summary of materials reviewed.
Narrative formats are time consuming and subject your expert to attack if he misstates or
misinterprets a record. It also poses problems when there are conflicts in the evidentiary record
that have to be resolved by the jury. Providing a factual summary does require your expert to
review and analyze the record and shows that he has considered all relevant evidence. This
process also better prepares the expert to testify and draft reports may expose gaps in your
expert’s knowledge before final conclusions are reached. However, ultimately the documents are
the best evidence, and listing the items is both cheaper and avoids the pitfalls associated with
summarizing voluminous records.

3. Oral reports versus written reports. Early reports should probably be made
verbally. A summary of findings can be made by counsel in his notes which is protected under
the work product privilege. Once the record matures and the facts are clear, reports should be
considered depending on the requirements of your jurisdiction.

4. The problem with draft reports. Such reports only pose a problem if
discoverable. In federal court only the final draft is discoverable. Check your state law on this
topic to see if it differs. 

5. Communications with expert and the work product privilege.
Such communications only pose a problem if discoverable. In federal court only correspondence
containing assumptions of fact or which outline the factual basis for the expert’s opinion are
discoverable. Check your state law on this topic to see if it differs. 

Working with your expert on providing a report that is accurate, complient, clear and concise is critical.  This checklist should help.

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