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Closing Arguments: Strict Liability, Dangerous Instrumentalities, Vicarious Liability and Use of the Lion Analogy
It always helps to use an analogy to explain an obtuse or complex legal principle. Strict liability for the actions of others or for events where no real negligence or lack of care has occurred is a difficult concept to convey to a jury. Strict liability can arise in a product liability setting, from vicarious… →
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Success is Measured by Hard Work and Effort
One important key to success is self-confidence. An important key to self-confidence is preparation. – Arthur Ashe Let’s face it, preparation breeds confidence. Only a fool would enter an endeavor with confidence in absence of preparation. If you want to succeed as a trial attorney you need to be prepared. What does success entail? Scholarship,… →
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Making “Good” on “Breaking Bad”
Well one of my favorite shows is no longer around. The final episode of “Breaking Bad” aired last night. The show delivered the goods and brought the saga of Walter White to its tragic and fitting conclusion. What more could someone want out of great story-telling than a journey that showed that “ends” don’t justify the “means” no matter… →
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There is No Shame in Stealing from the Best
You don’t have to reinvent the wheel every time you confront a new or unfamiliar situation. It is important to your progress as an attorney to learn from other’s mistakes and successes. I remember taking my son into a local music store called “B.J.’s Guitar Island” here in Indy, so my son could take guitar… →
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X-Rays: How to Get Them into Evidence.
X-ray are essentially a type of photograph and are admissible if: 1.The x-rays are authenticated, and 2.The x-ray technician’s competence is shown. The sponsoring witness must establish that the x-ray is a “true and accurate representation of the evidence portrayed.” Lewis v. State, 730 N.E.2d 686, 690-691 (Ind. 2000), citing to, Labelle v. State, 550 N.E.2d 752,… →
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Medical Records: Potential Problems You May Encounter in Entering Them Into Evidence
Medical Records and Charts: In most personal injury cases an attorney will be required to present medical records in order to prove their client’s claims. Careful attention needs to be paid to satisfying the requirements of the Rules of Evidence or key evidence could be excluded at the time of trial. If a stipulation of admissibility cannot be… →
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Sexual-Assault, Child Molestation and Sex-Offense Cases
Indiana Rule of Evidence 412 provides: Rule 412. Evidence of Past Sexual Conduct (a) In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or witness may not be admitted, except: (1) Evidence of the victim’s or of a witness’s past sexual conduct with the defendant; (2) … →
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Evidence of Subsequent Remedial Measures
Indiana Evidence Rule 407 provides: When after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. The rule does not require the exclusion of evidence of subsequent… →
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Motion in Limine: An Effective Pretrial Tool and Weapon (Part 5)
Here are a few additional topics to cover in your motion in limine to keep red herrings from finding their way into your case: EXPRESSION OF REGRET OR APOLOGY BY DEFENDANTS Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with the above-referenced matter, as whether one… →
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Habit Forming Evidence
Evidence of habit can be quite useful since it can help fill-in details forgotten by a witness in dealing with routine matters or procedures. This rule of evidence provides: Rule 406. Habit; Routine Practice Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless… →
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Why Character Matters
Such evidence is generally not admissible unless “character” is at issue. Ind. R. Evid. 404(a). Indiana Rules of Evidence 404, 405, 607, 608 and 609 deal with this area of law. Reputation of a person’s character among associates or in the community is a noted exception to the hearsay rule. Ind. R. Evid. 803(21). These… →
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Collecting Evidence Through Discovery: Evidence Considerations
Understanding the foundational requirements for the admission of documentary evidence helps you collect evidence in a format that will assist you and your staff in satisfying the evidentiary hurtles raised by objections based upon authenticity and hearsay. When collecting evidence, you have a number of discovery tools available to you that can eliminate the need… →
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Admissibility Checklist
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… →
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When Things Just Don’t Figure…
We are often confronted with confusing and conflicting technical data and statistics in confronting experts of all sorts. A few well chosen quotes or analogies can often be used with juries to debunk or blunt the impact of such testimony. Here are a few suggestions to add to your trial tactics bag of tricks: 1.… →
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“A Tail Isn’t a Leg” Analogy – Saying its So, Doesn’t Make It So
Ever have an attorney argue a question of law or fact which just was not so. Some people believe if they say something loud and frequently enough, it makes it so. Abraham Lincoln had a pretty clever way of dealing with such tactics. On one occasion, Abraham Lincoln, as a young trial lawyer in Illinois,… →
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Deposition Preparation Short List
Here is a short list of items to cover with your client the next time you have a discovery deposition: 1. Listen and make sure you understand the question. 2. Stop for five seconds and think. 3. Answer the question. 4. Is there more than one answer that is correct? 5. If there is, then… →
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Preparing for Mediation- It’s All in the Details
Thorough preparation for a mediation session increases the odds that you will be able to effectively and efficiently move your case towards settlement. Below is a checklist of items to address prior to your mediation: 1. Selection of a Mediator: This task is done in cooperation with the opposing party. If the case involves particularly complex issues and… →
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Trial Post-Mortem
If you try cases long enough, you are going to eventually lose a few. You need to look at losses as an opportunity to improve. Quite honestly you should learn more from your loses, than your victories. If your are allowed, you should speak with the jurors and see what they thought was important.… →
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Litigation Against an Organization: Why you need to do a Rule 30(B)(6) deposition.
If you are suing an organization, it is important that you familiarize yourself with the provisions of Rule 30(b)(6). Rule of Procedure 30(b)(6) provides in pertinent part: Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or… →
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