Category Archives: Evidence

Proper Objections at Your Expert’s Deposition

 
Palais de justice historique de Lyon, France

Objections should be kept to a minimum. The Rules contemplate that
objections should be concise and afford the examiner the opportunity to cure the objection. See Fed. R. Civ. P. 30(c)(2) (noting that “objection[s] must be stated concisely”); id., Advisory
Committee Notes (1993 Amendments) (noting that “[d]epositions frequently have been unduly  prolonged . . . By lengthy objections and colloquy” and that objections “ordinarily should be  limited to those . . . grounds that might be immediately obviated, removed, or cured, such as to
the form of a question”). Rule 30(c)(2) provides:  

Objections. An objection at the time of the examination—whether
to evidence, to a party’s conduct, to the officer’s qualifications, to  the manner of taking the deposition, or to any other aspect of the  deposition—must be noted on the record, but the examination still  proceeds; the testimony is taken subject to any objection. An  objection must be stated concisely in a nonargumentative and  nonsuggestive manner. A person may instruct a deponent not to  answer only when necessary to preserve a privilege, to enforce a  limitation ordered by the court, or to present a motion under Rule  30(d)(3).  

The Notes to the Advisory Committee for the Amendments of 1993 state that “[w]hile objections
may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on
grounds that might be immediately obviated, removed, or cured, such as to the form of a  question or the responsiveness of an answer.” Rule 32(d)(3)(A) & (B) state specifically which  objections must be made or waived:  

(A) Objection to Competence, Relevance, or Materiality. An
objection to a deponent’s competence—or to the competence,  relevance, or materiality of testimony—is not waived by a failure  to make the objection before or during the deposition, unless the  ground for it might have been corrected at that time. 

(B) Objection to an Error or Irregularity. An objection to an error
or irregularity at an oral examination is waived if:  

(i) it relates to the manner of taking the deposition, the form of a
question or answer, the oath or affirmation, a party’s conduct, or  other matters that might have been corrected at that time; and  

(ii) it is not timely made during the deposition. [Emphasis Added].

The Rules should be abided by during the course of the deposition.

Form objections. While unspecified “form” objections are certainly concise, they
do nothing to alert the examiner to a question’s alleged defect. Because they lack specificity, “
form” objections do not allow the examiner to immediately cure the objection.  

Permissible objections. If an objection could have been obviated at the time of
the deposition and it is not made, it is deemed waived. The only objection you should make are “insufficient foundation”, “compound”, “argumentative”, “asked and answered,” and “work
product privilege” or “attorney client privilege.” All other objections are available and can be
raised at a later time.
Below is a list of potentially impermissible objections (check your jurisdiction):  

1. Speaking Objections. Speaking objections are not allowed and can draw
sanctions. Your objection needs to be short and concise.  

2. No right to consultation. A witness has no constitutional right to consultation
while testifying. Perry v Leake, 488 US 272 (1989).  

 3. Recesses. It has been held a deponent has no right to consultation during
depositions and during recesses. Hall v Clifton Precision, 150 F.D.R. 525 (E.D. Penn. 1993).  

 
4. Communications during recesses. There is no attorney client or work product
privilege for discussion between attorney and deponent during recesses. You can ask what they
talked about. Id.  

 
5. Questions by Defending Counsel. An attorney cannot state on the record their
interpretation of a question asked. Hallsupra.  

 
6. If you know or if you understand is a speaking objection (coaching). Suggestions such as
“if you know” or “if you understand” are raw unmitigated coaching and never appropriate.
Serrano v Cincinnati Ins. Co., 2012 WL 20871 *4. (Kansas)  

 
7. Calls for speculation. Objections to “speculation” are not form. It’s also
coaching. Serrano, supra.  

 8. Vague Objection. Saying a question is “vague” is improper speaking objection.
Serrano, supra. Likewise, a lawyer cannot object saying he/she didn’t understand the question.
Hall, supra.

 
9. Multiple objections. Rambo-like multiple objections prohibited. In Re
Stratosphere
, 182 F.R.D. 614 (D. Nev. 1998).  

10. Excessive number of objections. Excessive number of objections is
sanctionable. Fed. R. Civ. P. 30(d), Committee Notes 1993.

Locating the Right Expert… Is It Like Looking for a Needle in a Haystack?

The right expert can educate and enlighten a jury and help prove your case. Below are some suggestions on how to locate an expert.  

(a) Classes of expert witnesses in academia, working professionals, and
full time professional experts. These are the three primary areas from which you are  likely to obtain experts in anticipation of litigation. Each has its advantages and  disadvantages as discussed below.  

(b) Referrals from other attorneys. This is my preferred method. It’s like
buying a used car that someone else has already checked out and driven over rough  terrain. They will often have past depositions or trial testimony you can read. They can  effectively sum up the witness’s strengths and weaknesses so you know what to expect.  

 
(c) Expert witness locating services. Not my favorite, but they can be very  helpful in locating persons with obscure areas of expertise or in litigation local experts  dare not become involved due to peer pressure such as in professional negligence cases. The fees charged by the experts are substantially higher because the service tacks on
substantial hourly surcharges. However, such services typically vet the experts and can
provide you with sample reports or depositions.  

 
(d) Local universities and colleges. This is a great source for top-notch  professors. Local professors are knowledgeable, well read and well versed on the latest
developments in their fields. They are usually skilled at teaching and have experience in
educating and helping others understand difficult and technical topics. Often they have
written in your field of study at issue. The most common drawback is the fact that they
sometimes lack the practical background and work experience. Also, because they have
published, opposing counsel can use your expert’s own material to impeach them and  exploit their beliefs and positions against your client’s claim.  

 
(e) Authors of authoritative textbooks. The principles outlined above are
equally applicable here. Such experts are conservative. They value their position and  reputation as an expert in their field. They can make excellent consultants and assist you
in locating testimonial experts given their knowledge and connections.  

 
(f) Authors of journal articles. The principles outlined above are equally  applicable here. When dealing with more obscure topics they can be very helpful  assuming they have written on the topic at issue. However, they may never have testified
before. Are they quick on their feet? Are they good under pressure? Will they stay  poised? Do they lack practical experience needed to give them credibility? Screening  and preparing such witnesses can be critical if they lack experience testifying in court or
in a deposition.  

(g) Leaders in business or industry. Such persons are natural leaders and
may have personality and charisma which may be lacking in some academic type. They
may be well known locally and respected. They have practical experience that may trump
the theoretical musings of those in academia. These aforementioned weaknesses in some
instances are the business leaders’ strengths. Will they come across more as an advocate
than as an impartial expert? Will they fall into the trap of sparring with opposing counsel
and lose their composure? Are they venerable to attacks because they are not as well
versed or updated in the area or field at issue? Again, screening and preparing such  witnesses can be critical if they lack experience testifying in court or in a deposition.  

 
(h) Skilled witnesses. These are persons already involved in the case. They
should not be overlooked. They have practical experience in your case. They may also
fall within some of the other categories outlined above which further weighs in their  favor. Fate chose them, not you. They thereby avoid the stigma of being considered a “
hired gun.” 

(g) Expert Witness Firms. Such persons are full-time “expert witnesses”
and are hired guns. That being said, if they have a good reputation for being honest  brokers they can be excellent choices. They are battle tested and know how to handle the
pressure of a deposition or testifying at trial. They will be more skilled at dealing with trial tactics and better capable of maintaining their composure even if something goes
awry during their testimony. You want to avoid such experts if they are known as “
whores.” They will have a wealth of prior testimony that can be used against them
which could render them impudent as a credible expert. Screening is critical.

I hope this information helps you locate the best expert witness for your case.

Expert Witness Retainer Agreements – Striking the Right Deal.

Here are points to consider:

1. Cannot be a contingent fee arrangement. This is unethical and would be
disastrous regardless… enough said.

2. Cost of initial consultation. This should be free or nominal, but make sure this
is clear.

3. Definition of scope of work. This should be set out in the initial engagement
letter in a straightforward, succinct manner.

 
4. Determining whether the case will be billed hourly or in stages. This should
be discussed at the front. Are you doing it by the hour or by the job to be performed? By the job
avoids runaway expenses, but can lead to experts cutting short the work that needs to be done.
5. Setting a budget. This avoids surprises for both sides and eliminates the stress of
the unknown.  

6. Regularity of billing statements. Same as above. It eliminates stresses and
surprise by not including the expert’s bill in your final statement of charges or in the
reconciliation to your client.  

7. Estimate of costs associated with forensic testing and/or scene work. Such
work can involve outside contractors or specialists. You want to budget these out as well.

8. Cost benefit analysis of economy versus completeness. If you cannot afford to
do everything necessary, cover it with your client first! Explain that the costs ultimately are
either paid directly or indirectly. Some clients will raise hell after you settle their case even  though you may have fronted the expenses and resolved the case very favorably. Keep your  client informed of the cost in advance of incurring it.  

9. Cost associated with satisfying federal court or state court disclosure
requirements. What costs in your jurisdiction are to be borne by the party, versus the opponent?
Initial disclosures or answers to interrogatories are usually the financial responsibility of the  party who hired the expert.  

10. Cost associated with responding to discovery requests. Additional requests for
information or discovery may not be had for free. Under Federal Rule of Civil Procedure
26(4)(E):  

Unless manifest injustice would result, the court must require that the party
seeking discovery:  

(i) pay the expert a reasonable fee for time spent in responding to discovery under
Rule 26(b)(4)(A) or (D); and  (ii) for discovery under (D), also pay the other party a fair portion of the fees and  expenses it reasonably incurred in obtaining the expert’s facts and opinions. 

 If you are in state court, check your jurisdiction’s law and make sure your expert is paid
in advance of doing the work.  

I hope you strike the right deal.

Should I Hire an Expert? Seeing the Light…

So you think you need to hire an expert? When should you do so? Consider the following:

1. When to Hire. It is usually advantageous to hire an expert as soon as it is clear you will require one. Oftentimes, you will be hired by a client on a moment’s notice to investigate and document the scene of an incident. If you regularly practice in a particular area,
you may already have knowledge of experts you have used in the past who can competently assist you. Valuable evidence can be lost forever if you fail to conduct a prompt investigation.  In order to ensure critical evidence is not lost or spoiled, expert investigators are essential to augment or oversee investigative work conducted by others, especially in the areas of forensics, product liability, computers, motor vehicle collisions, fires or airplane, environmental and/or
industrial disasters.

2. Expert’s Role/Witness or Consultant. From the moment you consider hiring an
expert, you need to ask a litany of questions: Is an expert needed for purposes of investigating the case or evaluating the case’s merits? Could your own expert hurt more than help your case? Could the expert better act as a sounding board, provide contrarian analysis and assist you in developing the facts? Do you need help finding a top-notch expert for your case? Is there information that you cannot risk being revealed due to its inflammatory nature, but nonetheless to get expert input in order to prepare for the worst? If so, then you may be best served by obtaining a consulting expert. Most jurisdictions recognize that consulting experts are subject to a qualified work product privilege claim. If the nature of your case raises a choice of law or forum question, be aware of the relevant case law in all applicable jurisdictions.

3. Necessity or luxury. Not every case requires an expert who is retained in
anticipation of litigation. Skilled witnesses such as treating healthcare providers or governmental investigators and experts may already be involved who can assist you in developing and establishing the issues of liability, causation, or the extent of damages. On the other hand, is an expert required by the law, complexity of the facts, or needed to assist and educate the jury? In cases of professional negligence (malpractice), expert testimony is
almost always required. Without it, you are subjected to a summary judgment motion or worse, a motion for a directed verdict. What was the standard of care? Was it breached? This is an issue
that needs to be addressed early-on before you spend vast sums of time and money litigating a case which lacks merit. Malpractice cases are the most difficult ones to win. Here in Indiana, less than 80% of the malpractice cases tried to a jury result in a plaintiff’s verdict. Early evaluations prevent you from embarking on a bad business venture that will serve neither you  nor the client. 

These are the type of questions which need to be asked and answered early in the litigation. 

Discovery, Privacy, Personal Freedom and Social Media

I don’t see myself as a hero because what I’m doing is self-interested: I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity. 

Edward Snowden

There is an assault on our privacy.  We need look no further than headlines involving Russian hacking of our government and political institutions such as story reported by The NY Times today. The assault on our client’s privacy is also underway as part of the civil discovery process.  Attorneys now seek to rummage through a client’s social media accounts and demand usernames and passwords to accomplish this invasion of privacy without any factual basis or good cause.

Fishing expeditions are not allowed. Here is the objection I use:

Objection, this request is overly broad and unduly burdensome. See Ind. T.R. 26(B)(1). Further, this request is non-specific and calls for a general fishing expedition which is prohibited under Indiana law in violation of the reasonable particularity requirement of Ind. T.R. 34(B). See Canfield v. Sandock, 563 N.E.2d 526 at 529-531(Ind. 1991). The simple fact that a claimant has had social communications is not necessarily probative of the issues in this case.  See Rozell v Ross-Holst,2006 WL 163143 (S.D.N.Y. Jan. 20, 2006).  There is no general right to have access to an entire Facebook account and such a request is no different than requesting the right to search through a party’s entire house, office, or wherever making the request a “fishing expedition”.  See also, McCann v. Harleysville Ins. Co. of New York , 78 A.D.2d 1524 (N.Y. A.D. 2010)(Defendant “failed to establish a factual predicate and essentially sought permission to conduct a fishing expedition into plaintiff’s Facebook account based on the mere hope of finding relevant evidence which is not allowed); Tompkins v. Detroit Metro. Airport, No. 10-10413, (E.D. Mich. Jan. 18, 2012)(Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view and engage in the proverbial fishing expedition, in the hope of finding something on a Facebook account.).

Social media may be discoverable “specifically “, but certainly should not be invaded “generally”. Privacy matters to us all and must be honored even in this day of pervasive electronic communications and connections.

Don’t Let Your Adversary Spoil Your Case.


Don’t let your opponent spoil your case by destroying or obfuscating evidence relevant to your case through spoliation of evidence. “First party” spoliation refers to spoliation of evidence by a party to the principal litigation, and “third party” spoliation refers to spoliation by a non-party. Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 350 (Ind. 2005). Indiana law “does not recognize an independent cause of action for intentional or negligent ‘first party’ spoliation of evidence.” Glotzbach v. Froman, 854 N.E.2d 337, 338 (Ind. 2006). If spoliation by a party to a lawsuit is proved, rules of evidence permit the jury to infer that the missing evidence was unfavorable to that party. Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000). Other potential sanctions for spoliation include further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal. Howard Reg’l Health Sys. v. Gordon, 952 N.E.2d 182, 189 (Ind. 2011) (quotations omitted).
However, case law requires that you prove that the act is nearly intentional. In order to satisfy this high standard you need to send out preservation letters early and distribute them widely in order to create a sufficient paper record to establish circumstantial evidence of intent. 
Make sure the preservation letter reaches the opposing party, their insurer and attorney as early as possible. The relevant evidence to be preserved needs to be specially identified so there is no claim of ambiguity, mistake or accident. Early groundwork is needed to preserve evidence and make sure there are real consequences for its destruction by those who possess and control it. 

How to Exclude Self-Serving Reports by Testimonial Experts

So you’re at trial and your opponent wants to offer into evidence their expert’s written report… What do you do?  Is it admissible? The short answer is no. Expert’s reports are documents prepared in anticipation of litigation and do not have the inherent reliability of documents typically considered and admissible under exceptions to the hearsay rule such as Indiana Rules of Evidence 803 and 804.RULE 803.  Indiana Rule of Evidence 803(6) recognizes this danger.  IRE 803(6) states:

Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

(Emphasis Added).  Clearly, a report by a hired gun hardly provides circumstances indicative trustworthiness.  In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004), the Indiana Supreme Court observed:

[The] business records exception to the hearsay rule is “based on the fact that the circumstances of preparation assure the accuracy and reliability of the entries.”  Wells, 261 N.E.2d at 870.  As we have observed more recently, the reliability of business records stems in part from the fact that “the organization depends on them to operate, from the sense that they are subject to review, audit, or internal checks, [and] from the precision engendered by the repetition…”  Stahl v. State, 484 N.E.2d 89, 92 (Ind. 1997); see also Advisory Committee’s Note to Fed. R. of Evid. 803(6) (observing that business records are made reliable by “systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.”

Id. at 642-43.  The Court went on to explain that if a business does not rely on certain records for the performance of its functions then those records do not fall into the hearsay exception for records of regularly conducted business activity.  (See also Palmer v. Hoffman, 318 U.S. 109, 111 (1943), where the Court upheld the exclusion of a railroad engineer’s statement.  “[I]t is manifest that in this case those reports are not for the systematic conduct of the enterprise as a railroad business.  …[T]hese reports are calculated for use essentially in the court, not in the business. Their primary utility is in litigating not in railroading.“)

A retained expert’s report is not subject to review, audit, or internal checks for use in the expert’s business nor is it relied upon by the expert in the performance of business functions. In Re: Termination of Parent-Chile Relationship of E.T. and B.T., 808 N.E.2d 639 (Ind. 2004). Instead it designed and created for use in litigation. IRE 803(6) requires that the method or circumstances of the preparation not indicate a lack of trustworthiness.

A report is not trustworthy when the Defendant hires an individual to prepare it if the primary motive for preparing the report is for litigation. Certain Underwriters at Lloyd’s, London v. Sinkovich, 232 F.3d 200, 205 (4th Cir. 2000). “Litigants cannot evade the trustworthy requirement of Rule 803(6) by simply hiring an outside party to investigate an accident and then arguing that the report is a business record because the investigator regularly prepares such reports as part of his business.” Id.   See also, Echo Acceptance Corp. v. Household Retail Services, Inc., 267 F.3d 1068, 1090-91 (10th Cir. 2001); Lust v. Sealy, Inc., 383 F.3d 580, 588 (7th Cir. 2004).

These sentiments are echoed in Judge Robert Miller’s Courtroom Handbook on Indiana Evidence, in reference to Rule 803(6) he notes:

“Documents made in anticipation of litigation, including computer printouts are generally not admissible under Rule 803(6).” Certain Underwriters at Lloyds , London v. Sincovich, 232 F.3d 200, 205 (4th Cir. 2000); Bradley v. Phelps, 147 Ind. App. 349, 260 894, 898 (1970), cf. Baker v. Wagers, 472 N.E.2d 218, 222 (Ind. App. 1984).

So do not let your opponent get away with creating testimonial exhibits which will be taken back to the jury room and provide unfair emphasis on such testimony.  Reports simply aren’t admissible.

The Case Against Experts in the Courtroom

20120227-001826.jpg“If you can’t explain it to a six year old, you don’t understand it yourself.” Albert Einstein

I have always thought it is unclear whether Indiana Rule of Evidence (IRE) 615 applies to depositions. IRE 101(C) states:

Rules Inapplicable. The rules, other than those with respect to privileges, do not apply in the following situations:

(1) Preliminary questions of fact. The determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104(a).
(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing, probation, or parole; issuance of criminal summonses, or of warrants for arrest or search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and grand jury proceedings.

Interestingly enough, no mention of depositions is made in the proceedings excluded.

Ind.T.R. 30(C) states in part:

Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Rule 43(B). *** All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. When there is an objection to a question, the objection and reason therefr shall be noted, and the question shall be answered unless the attorney instructs the deponent not to answer, or the deponent refuses to answer, in which case either party may have the question certified by the Reporter, and the question with the objection thereto when so certified shall be delivered to the party requesting the certification who may then proceed under Rule 37(A).

Ind. T.R. 32(B) states:

Objections to admissibility. Subject to the provisions of Rule 28(B) and subdivision (D)(3) of this rule, objection may be made at the trial or hearing to receiving in evidence any depositions or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.
* * *

(D) Effect of errors and irregularities in depositions


(3) As to taking of deposition.

(a) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(b) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless reasonable objection thereto is made at the taking of the deposition. ***

Ind. T.R. 43(B) then reads:

Evidence on motions. When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

My take away from all of this is that if you want to use the deposition at trial or in connection with a motion for summary judgment, then the rules of evidence would apply. Also, if you do not object to the presence of the expert at the time of the deposition pursuant to IRE 615 the objection is waived because it could have been obviated by the opposing attorney by ordering the expert to leave. If the opposing attorney disagrees then you would have to hope you win the issue at trial or stop the deposition and immediately file a motion to terminate under Ind. T.R. 30(D).  As a result, I would think a court would find IRE 615 applicable to a deposition.

That being said, I think having an expert present to aid you in examining another expert would usually be “a person whose presence is shown by a party to be essential to the presentation of the party’s cause” under IRE 615(C). In Ledden v Kuzma, 858 N.E.2d 186 (Ind.Ct.App.2006), the Kuzmas sought a protective order barring Ledden’s expert from attending Ledden’s deposition of the Kuzmas’ expert witness. The Court of Appeals stated:

Under appropriate circumstances, it may be proper for a protective order to be granted barring an expert -or anyone else – from attending the deposition in question. If a party is able to meet the requirements of Trial Rule 26(c)(5), then a protective order would be warranted. But if, as here, a party is unable to provide any particular and specific demonstration of fact in support of the request for a protective order, then there is no reason – based in logic or rule – to bar the expert from attending the deposition.

Generic allegations of prejudice were made in Ledden v Kuzma.  A factual demonstration supported by evidence of real harm seems to be required given the holding in Ledden v Kuzma.

Trial is a different thing. The argument for the a separation of witnesses is weaker at the discovery stage since you may need the help of your own expert to pin someone down at the pretrial discovery stage whether investigation is needed. While IRE 615(C) does allow a party to designate a person whose presence is essential to their presentation to be present in the courtroom, this creates practical problems and raises concerns about “fairness in administration” and “the end that the truth may be ascertained and proceedings justly determined.” See IRE 102 Purpose and Construction.

When I had this occur in a trial, I successfully argued that the defense expert is not allow to watch the trial and weigh evidence as this is the sole province of the jury. IRE 702(A) states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Allowing expert to attend the trial and opine is a kin to having a shadow jury. Such a process misleads the jury as to an expert’s true role which is to aid the jury in deciding the case, not supplant them. Trial testimony by the expert could run afoul of Rule 704(B) since the expert would in essence be testifying as to whether a witness (including your expert) testified truthfully by opining after watching all the witnesses testify.  Also, Ind.T.R. 26 requires that the basis and opinion of an expert be seasonably disclosed before the trial. An expert’s opinion would change and morph as the trial progressed. The expert, not the jury, would resolve questions of fact, credibility and the weight to be given witness testimony and items of evidence. Such expert testimony could impair or deprive a party of their constitutional right to trial by jury.

So, what do you think?

When a Negative Becomes a Positive

Absence makes the.heart grow fonder and can also act as proof positive in a case of “missing” evidence or documents.  First, there are two noted exceptions to the hearsay rule for the absence of a record.  Indiana Rule of Evidence 803 has two subdivisions that deal with the admissibility:

803. Hearsay Exceptions: Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness.

*   *   *   *   *

(6)  Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public Records and Reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

(9) Records of Vital Statistics. Records or data compilations in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation in any form was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that a diligent search failed to disclose the record, report, statement, or data compilation, or entry.

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The reason behind the exception for business records and their absence is  the fact that they are regularly maintained records upon which the company relies in conducting its business which assures their trustworthiness. The rules of evidence governing the admission of business records are of common law origin and have evolved on a case-by-case basis to keep pace with the technology of current business methods of record keeping.  This logic supports the existence of an exception for public records ( and their absence) for governmental organizations who must rely on the trustworthiness of their records to carry out their duties.  

Likewise, the absence of a witness can make their prior testimony, statement against interests or dying declaration admissible. See Rule 804. Hearsay Exceptions: Declarant Unavailable.

Finally, if evidence goes missing, then its absence may give rise to a positive inference that the evidence would have been unfavorable had it been found and not gone missing.  In Miller v. Federal Exp. Corp., 6 N.E.3d 1006 (Ind.App.,2014) The Indiana Supreme Court recognized that:

[I]ntentional destruction of potential evidence in order to disrupt or defeat another persons’s right of recovery is highly improper and cannot be justified. The intentional or negligent destruction or spoliation of evidence cannot be condoned and threatens the very integrity of our judicial system. There can be no truth, fairness, or justice in a civil action where relevant evidence has been destroyed before trial. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both.

The spoliation rule also has applies in the cases of an absent witness. If a party has exclusive power to produce a material witness and fails to do so, it may give rise to an inference that the witness would testify unfavorably to the party who had the exclusive control. Breese v. State, 449 N.E.2d 1098 (Ind. Ct. App. 1983); Bowes v. Lambert, 114 Ind. App. 364, 51 N.E.2d 83 (1943); Public Sav. Ins. Co. v. Greenwald, 68 Ind. App. 609, 118 N.E. 556 (1918); Godwin v. De Motte, 64 Ind. App. 394, 116 N.E. 17 (1917). 

The spoliation rule also is enforced in federal court, however, exclusive control and a lack of availability to the complaining party must be shown.  Oxman v. WLS-TV, 12 F.3d 652, 661 (7th Cir. 1993); Chicago Coll. of Osteopathic Med. v. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir. 1983); see also Fey v. Walston & Co., 493 F.2d 1036, 1053 (7th Cir. 1974) (where missing witness was beyond subpoena power of defendants and there was evidence both that missing witness was available to adverse party and that missing witness’s testimony could have thrown significant light on crucial question in case, it was error to instruct that jury may infer missing witness’s testimony would be merely “of no aid” rather than “adverse” to non-producing party’s case). 

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The Problem with Problems.

memorySo do you want to know what the problem is with problems? Most people are like an ostrich with its head buried in the sand in fear of what they might see.  We all have a tendency to ignore our problems and procrastinate.  This is fatal thinking or à total lack of thinking.

Instead of waiting until the last second before the trial starts or the evening before your closing argument, look for problems as well as inspiration the first day the case comes into your office.  Continue to hunt for inspiration and problems as the case progresses. Attorneys should not wait until the last moment to prepare their opening statement or closing argument.  This is often too late and provides little time to use your creativity as an attorney and advocate for the client.

I always keep an electronic document with a list of inspirational quotes, analogies and arguments.  I also have a list of potential problems and issues that I need to address as the case progresses through litigation towards trial.  For example, if during the course of my client’s deposition unfavorable evidence arises about my client’s background or character, I make careful note of the same on my list of problems and issues so that I can deal with it at the time of trial.

So how do you deal with such problems?  You may be able to exclude the evidence with a motion limine under Rules of Evidence 403, 404, 405, 608, 609 or 610, 702 or 802.  If the problem can be addressed in jury instructions, research the law and carefully draft a proper instruction to submit to the court address the issue (such as pre-existing conditions).

If neither of these strategies has a chance of success, then I have to figure out a way to discuss the problem upfront and lessen the evidence’s  impact with the jury.  See my article: Direct Examination and Airing Your Dirty Laundry. Most evidence has a double edge to it.  If the other side is engaging in character assignation point out the tactic and explain why the jury is being misdirected from the real issues in your case.   See my article on Distraction, Misdirection and the Art of Verbal Jujitsu.

I will raise such problems during jury selection and find out which of the jurors cannot put the problem aside or deal with it fairly.  if possible, I will get juror to admit that they cannot be a fair and impartial juror and then try to have them removed for cause or use a peremptory challenge to strike the juror from the venire.

I will raise the problem on direct examination and outline any mitigating circumstances favorable to my client and explain how the transgression occurred.   I don’t wait for redirect and give my opponent the first shot at framing the issue.

Honesty, is the best policy in dealing with such problems.   Remember, everyone is human and no one is perfect.   The jury will understand if you do and you don’t run away from the problem.  Just deal with it.   Likewise,  if I receive inspiration for a good argument, analogy or quote,  I will  send myself an e-mail or text message so that I don’t forget it.

So don’t let your problems, be the problem.  Be proactive and creative.  Do not procrastinate and brood.

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