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Lights, Camera, Action: Directing and Producing Your Trial
You are the “director” and “producer” of your trial and the witness’s testimony. We can’t change the facts, but you do have the power of when and how to present them subject to the limits of the Rules of Evidence. Indiana Rule of Evidence 611 controls the manner and mode of interrogation of witnesses. This →
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There is a Difference Between “I Don’t Know” and “I Don’t Remember”
A client or witness needs to be thoroughly familiarized with what it means to forget as opposed to not knowing something. If one says, “I don’t know,” something, it means it was never in their brain. “I don’t remember,” on the other hand, means that the information was once in their brain, but cannot be →
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Trials, Lies & Videotapes
“One Picture is Worth a Thousand Words” – 1918 Newspaper Advertisement for the San Antonio Light. Often I look to my own law practice and find inspiration for a topic on trial advocacy. In preparation for an upcoming trial and mediation, I decided that a sprawling case involving boxes of documents, video interviews, audio recordings, →
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Why Figures may not Figure..
In my last post, I discussed readings that could help improve your knowledge and analytical skills in addressing statistical data. Below is a check list of items to consider summarized from the Manual on Scientific Evidence Third Edition, Reference Guide on Epidemiology. Here is the list: CHECKLIST OF PROBLEMS WITH THE USE OF STATISTICAL DATA →
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Statistics: Why Figures Don’t Lie, But Liars Figure…
More and more, figures and statistical information finds it way into litigation, both criminal and civil. At some point in your career as an attorney you will need to understand what can and cannot be accomplished in utilizing statistics. Most laypersons and attorneys are ill-equipped to handle such information. Oftentimes experts can find refuge in →
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Why a Picture is Worth a Thousand Words
A picture is worth a thousand words. Napoleon Bonaparte One picture is worth 1,000 denials. Ronald Reagan Let’s face it, in the context of a trial pictures and other demonstrative evidence can have a very powerful impact on a jury. Back in the late 1800s and early 1900s, attorneys could give closing arguments that could →
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Non-Hearsay: Greetings, Insults, Commands and Questions With No Real Answers
Hearsay or non-hearsay? That is the question. But how do you identify statements that are potentially hearsay? On a local list serve experienced trial attorneys debated whether a “command” from a doctor to a patient was hearsay or not. Surprisingly, the opinions on this issue were pretty evenly split even though the answer was clear →
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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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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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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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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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When is an Exhibit Sticker More Than an Exhibit Sticker?
An exhibit sticker can do much more than identify an exhibit for the record. It can actually be used as an organizational tool to aid the jury in understanding what the exhibits are being used to prove, as well as, better understand your case and how it is being put together. When I was a →
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Running The Back Door Play – Rule 104(a) and Preliminary Questions of Fact
In basketball, a backdoor play is when a player without the ball gets behind the defense and receives a pass for an easy score. This can be executed if the defenders are unaware of the open space behind them. There is such a play available in the courtroom the defense may be unaware of as →
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Coaching the Witness: How to Handle the Speaking Objection.
You are in a deposition and you are hammering an opposing witness. The witness has backed off of her speed estimate and is just about to concede she has no real basis to estimate her speed when the opposing attorney interrupts and launches into a speech: Q. So, you would have to guess or speculate →
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Motion in Limine: An Effective Pretrial Tool and Weapon (Part 4)
Why do you need a motion in limine you may ask? Because the other side will try to unfairly muddy the water. The defense is just like an octopus hiding behind a cloud of black ink, they try to obscure your view with their arguments and B.S. However, all you have to do is just move →
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The Barrister's Toolbox 