Category Archives: Rules of Evidence

Why Sorry is the Badest Word…

An expression of regret or an apology by a Defendant is nothing new when a case doesn’t settle and finally makes it to trial.  However, should this be allowed?  Why no! 

Defendants should be prohibited from expressing any apologies or statements of regret to the jury in connection with a civil case not seeking punitive damages. Whether one is sorry or not for injuring a person constitutes neither a defense, nor is it relevant to any issue concerning whether or not to grant compensatory damages. The sole purpose of making such a statement to a jury is to encourage them to return a reduced verdict because the Defendant is sorry about what happened and is really a good guy. General appeals to sympathy or prejudice on the part of a jury are inappropriate and should be prohibited by a trial court. The jury’s obligation is to render a verdict for just compensation, not to hear confessions or grant absolution.    Their function is not to forgive, it is to fairly compensate one for their injuries. Only God can forgive.

​Any references made to this effect should not be permitted as they are calculated to mislead and confuse the jury and would clearly be immaterial and irrelevant to any issue involving either liability or damages. See Rules of Evidence 402 and 403. See generally, King’s Indiana Billiard Co. v. Winters, 123 Ind. App. 110, 127, 106 N.E.2d 713, 721 (1952).  So cut this tactic off with a pretrial motion in limine. Otherwise you may be sorry you didn’t.

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Does an Oath Inoculate a Medical Witness from Being Biased in Favor of Other Healthcare Providers?

Oath

“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore 

The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike.  Indiana law is clear that the income of an expert derives from his/her work as an expert is highly relevant and goes directly to bias and prejudice. See Ind.R.Evid. 411, 616; Ind. Pattern Jury Instruction No. 1.09; Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548, 551-52 (Ind. App. 2009), trans. denied; Pickett v. Kolb, 237 N.E.2d 105 (Ind. 1968); Yates v. Grider, (1969) Ind. App. 251 N.E. 2d 846; Kleinrichert v. State, 530 N.E.2d 321 (Ind. App. 1980). As the Indiana Supreme Court stated in Pickett, supra:

It has long been the law in all jurisdictions of which we are aware that a witness may be properly cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and a contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him.

[P]roof of liability insurance in and of itself is not admissible, but such a principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. We do not think that a trial court may arbitrarily exclude otherwise competent and relevant evidence merely on the ground that it will reveal an insurance carrier is involved.

In this case, as previously stated, if a party sees fit to present a witness on his behalf, the opposing party has a right to cross-examine that witness with reference to all his interests in the litigation, including who is compensating him or giving him anything of value which resulted in his being a witness or participating actively in the litigation.

237 N.E.2d at 107-08. The Indiana Supreme Court’s rules trump any statute when the provisions conflict.  In re Termination of the Parent-Child Relationship of B.H., 2013 Ind. App. LEXIS 256 (Ind. Ct. App. May 30, 2013).  The principle that this rule of law survived the adoption of the Indiana Rules of Evidence was confirmed in Brown-Day, 915 N.E.2d at 551-52.  Indiana Rule of Evidence 411 explicitly excepts evidence of bias from the restriction on presenting evidence of insurance.  This Rule provides:

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.  [Emphasis Added].

Indiana Rule of Evidence 616 recognizes that witnesses are subject to cross examination on topics addressing bias. This Rule provides:

Rule 616. Witness’s Bias

Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. [Emphasis Added].

Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness.  The fact that embraces the topic of the Patient Compensation Fund should not prevent such inquiries.  By analogy inquiries regarding a juror’s interest in an insurance company is a valid line of inquiry. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the court stated:

[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.

Id. at 621.

Panel members should be able to be questioned regarding their financial interest in the outcome of a medical malpractice case since each of them our participants in the patient compensation fund and are financially impacted by any monies awarded from the fund.  The collective impact of favorable plaintiff’s verdicts is not trivial and has a financial impact on panel members.  The prohibition on mentioning insurance is not absolute.  Under Rule of Evidence 411, evidence that a witness was insured against liability is admissible to prove their “bias” or “prejudice”.    While recognizing all of these arguments exist, the Court of Appeals here in Indiana has refused to overturn a trial court’s discretionary decision to exclude such evidence pursuant to Indiana Rule of Evidence 403.  This rule leans in favor of admitting such evidence (unlike Rule 608 which deals with evidence of criminal convictions).  The attendant prejudice must substantially outweigh the probative value.   A trial court’s decision on this issue may only be reversed for an abuse of that discretion to n deciding this issue. In Tucker v. Harrison, 973 N.E.2d 46 (Ind. App. 2012) upheld the trial court’s decision to exclude such evidence noting:

Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias … of the witness for or against any party to the case is admissible.”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. (citations omitted). Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. [Emphasis Added].

Id. at 55.  Alas, if an oath guaranteed truth there would be no need for cross-examination or even a trial for that matter.  Bias can occur on an unconscious level and is not cured by being placed under oath.  If not, why is it so difficult to get local doctors to assist and go on the record in medical malpractice case against another doctor?      The Court of Appeals went on to observe:

[The Plaintiff’s] proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana—all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, [the Plaintiff] has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). (Emphasis Added).

Id. at 55.  The Court of Appeals then held that:

When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. ***The trial court did not clearly err in excluding the proffered bias testimony.

Id.   Ultimately the issue remains one for the trial court to resolve in its discretion.  In order to succeed in present such evidence of bias, quantifying the amount of this contribution to the patient compensation fund by each doctor may be necessary to overcome a claim of unfair prejudice by the defense.   The size of this contribution by a panel member may well vary depending upon the area of practice, the doctor’s risk history and the true number of practitioner’s that participate in the Fund.  See the Schedule below and the dollar amounts of the Compensation Fund surcharge by classification of specialties found in Indiana’s Administrative Code:

Surcharge Rates - Patient Compensation Fund

These classes breakdown as follows in terms of areas of practice per 760 IAC 1-60-3 (Rule 60):

760 IAC 1-60-3 List of physician specialty classes
Authority: IC 34-18-5-2
Affected: IC 34-18-5-2
Sec. 3. The list of physician specialty classes required by IC 34-18-5-2 is as follows:
Indiana Department of Insurance
Patient’s Compensation Fund
Physician Class Plan
Class 0
ISO Code Specialty
80001 Resident Nonmoonlighting
80221 Resident Moonlighting (No ER)
80230 Aerospace Medicine
80231 General Preventive Medicine – No Surgery
80234 Pharmacology – Clinical
80236 Public Health
80240 Legal Medicine and Forensic Medicine
80248 Nutrition
80249 Psychiatry (Including Child)
80250 Psychoanalysis
80251 Psychosomatic Medicine
80254 Allergy
80256 Dermatology – No Surgery
80263 Ophthalmology – No Surgery
80266 Pathology – No Surgery
Class 1
ISO Code Specialty
80233 Occupational Medicine
80235 Physical Medicine and Rehabilitation
80237 Diabetes – No Surgery
80238 Endocrinology – No Surgery
80239 Family Practice – No Surgery
80241 Gastroenterology – No Surgery
80242 General Practice – No Surgery
80243 Geriatrics – No Surgery
80244 Gynecology – No Surgery
80245 Hematology – No Surgery
80246 Infectious Disease – No Surgery
80247 Rhinology – No Surgery
80252 Rheumatology – No Surgery
80255 Cardiovascular Disease – No Surgery
80257 Internal Medicine – No Surgery
80258 Laryngology – No Surgery
80259 Neoplastic Disease – No Surgery
80260 Nephrology – No Surgery
80261 Neurology (Including Child) – No Surgery
80262 Nuclear Medicine
80264 Otology – No Surgery
80265 Otorhinolaryngology – No Surgery
80267 Pediatrics – No Surgery
80268 Physicians (Not Otherwise Classified) – No Surgery
80269 Pulmonary Disease – No Surgery
80420 Family Physicians – No Surgery
Class 2
ISO Code Specialty
80223 Resident Moonlighting (with ER)
80253 Radiology – No Surgery
80280 Radiology – Minor Surgery
80282 Dermatology – Minor Surgery
80289 Ophthalmology – Minor Surgery
80292 Pathology – Minor Surgery
80425 Radiation Therapy – Not Otherwise Classified
80431 Shock Therapy
Class 3
ISO Code Specialty
80109 Physicians – No Major Surgery
80114 Surgery – Ophthalmology
80132 Physicians (Not Otherwise Classified) – Minor Surgery
80172 Physician (Not Otherwise Classified) – No Major Surgery
80270 Rhinology – Minor Surgery
80271 Diabetes – Minor Surgery
80272 Endocrinology – Minor Surgery
80273 Family Practice – Minor Surgery
80274 Gastroenterology – Minor Surgery
80275 General Practice – Minor Surgery
80276 Geriatrics – Minor Surgery
80277 Gynecology – Minor Surgery
80278 Hematology – Minor Surgery
80279 Infectious Diseases – Minor Surgery
80281 Cardiovascular Disease – Minor Surgery
80283 Intensive Care Medicine – Minor Surgery
80284 Internal Medicine – Minor Surgery
80285 Laryngology – Minor Surgery
80286 Neoplastic Diseases – Minor Surgery
80287 Nephrology – Minor Surgery
80288 Neurology (Including Child) – Minor Surgery
80290 Otology – Minor Surgery
80291 Otorhinolaryngology – Minor Surgery
80293 Pediatrics – Minor Surgery
80294 Physicians (Not Otherwise Classified) – Minor Surgery
80421 Family Physicians (GP) – Minor Surgery – No OB
80422 Catheterization, Not Otherwise Classified
80424 Emergency Medicine – No Surgery
Class 4
ISO Code Specialty
80000 Family Practice – with OB
80101 Broncho-Esophagology
80115 Surgery – Colon and Rectal
80117 Surgery – GP (Not Primarily Engaged in Surgery)
80145 Surgery – Urological
80151 Surgery – Anesthesiology
80163 Radiation Therapy – Employed Physicians or Surgeons with Major Surgery
80428 Physicians – Minor Invasive Procedures – Myelography
80434 Physicians – Minor Invasive Procedures – Lymphangiography
80437 Physicians – Minor Invasive Procedures – Acupuncture
80440 Physicians – Minor Invasive Procedures – Laparoscopy
80443 Physicians – Minor Invasive Procedures – Colonoscopy
80446 Physicians – Minor Invasive Procedures – Needle Biopsy
80449 Radiopaque Dye Injection
Class 5
ISO Code Specialty
80102 Emergency Medicine – No Major Surgery
80103 Physicians – Surgery – Endocrinology
80104 Physicians – Surgery – Gastroenterology
80105 Physicians – Surgery – Geriatrics
80106 Surgery – Laryngology
80107 Physicians – Surgery – Neoplastic
80108 Physicians – Surgery – Nephrology
80158 Surgery – Otology
80159 Surgery – Otorhinolaryngology
80160 Physicians – Surgery – Rhinology
80419 Family or General Practice – Major Surgery
Class 6
ISO Code Specialty
80141 Surgery – Cardiac
80143 Surgery – General Not Otherwise Classified
80155 Surgery – Plastic – Otorhinolaryngology
80156 Surgery – Plastic Not Otherwise Classified
80157 Surgery – Emergency Medicine
80166 Surgery – Abdominal
80167 Surgery – Gynecology
80169 Surgery – Hand
80170 Surgery – Head and Neck
Class 7
ISO Code Specialty
80144 Surgery – Thoracic
80146 Surgery – Vascular
80150 Surgery – Cardiovascular Disease
80154 Surgery – Orthopedic
80171 Surgery – Traumatic
Class 8
ISO Code Specialty
80152 Surgery – Neurology (Including Child)
80153 Surgery – Obstetrics/Gynecology
80168 Surgery – Obstetrics

The facts the Indiana Court of Appeals had to assume  given the underdeveloped record before the trial court, substantially underestimated the amount of money contributed by doctors and other healthcare providers on a yearly basis.  While by statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e).  This is not the reality. Depending on the area of practice, the actual dollar amounts contributed by healthcare providers are from 2,222% to 25,186% higher than the $100 annual fee assumed by the Court of Appeals!  The actual potential for bias when viewing the real numbers is neither remote nor trivial.   Such evidence of financial bias on the part of Panel Members should be admissible and evaluated by the finder of fact. The probative value of such evidence is high and is not substantially outweighed by the risk of unfair prejudice. 

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.

 

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…

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.”

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.

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.

Top Mistakes in Choosing Experts

Here they are…  
1. Hiring an expert too late. Experts can be helpful and sometimes essential in
properly investigating and evaluating a case. They can provide guidance in drafting discovery  requests and determining whether information has been overlooked, withheld or lost. They are  also invaluable in assisting in deposition preparation and questioning of the opposing expert.  

2. Being penny-wise and pound-foolish. Do not save pennies and shortcut what
needs to be done at the cost of your case! Go through the cost and benefits of what needs to been
done early on and decide whether it makes sense to pursue your case through trial. For example,
product liability cases and medical malpractice cases are very expensive to litigate. By getting  an expert involved early on, you can assess whether the case merits the time and money required
to be successful. If you defer expert involvement, you may well incur expenses and invest time  that was better spent on another case.  

 
3. Obtaining the wrong type of expert. Don’t bring a knife to a gunfight! Make  sure you understand the science and technical issues well enough to properly select and screen  your expert.  

 
4. Hiring an inexperienced expert. Experience in the courtroom matters. It holds  true for attorneys and experts alike. Get an expert who “has been there and done that.” This is  not the place to cut costs!  

5. Failing to check an expert’s background. You know your opponent will do so,
so why wouldn’t you check your expert’s background? It’s cheaper to check out your expert
than to have to pay for two experts or lose your case because of problems which could have been
avoided.  

6. Buying a Volkswagen when you need a Mercedes. Get the person who fits the
job, not just your budget! As a Plaintiff’s attorney you will lose your case, disappoint a client
and cost yourself money which you can never recover. As a defense attorney, you risk losing a  case and a book of business. If the insurer does want to do it right, then they better be ready to  pay, or overpay the claim.  

7. Forgetting that “Garbage in equals garbage out”. You must provide your
expert with solid evidentiary material or rock solid assumptions if he is opining on ahypotheticalquestion. If your incoming information is not reliable or ascertainable, you are lost from the
start.

8. Failing to educate yourself. You cannot hire the right expert if you don’t
understand the area of expertise involved. One excellent source to check is the Reference  

Manual on Scientific Evidence 3rd Edition published by the Federal Judicial Center, which
covers all of the common areas of forensic and scientific analysis that usually arise in civil or
criminal litigation. Here is the link:  

http://www.fjc.gov/public/pdf.nsf/lookup/SciMan3D01.pdf/$file/SciMan3D01.pdf

9. Underestimating the value of a good communicator. First and foremost, your
expert must be a good communicator and educator. No one will care how smart he is unless they
can understand and connect with him as a person. He has to be interesting and make the jury
want to lean forward and learn more – not take a nap! As Theodore Roosevelt quipped, “No one
cares how much you know, until they know how much you care.”

 

10. Lacking clarity on the issue in dispute and the theme of your case. What is your case’s theme? How does your expert move your case forward? Can you phrase the
technical issues so they meld with your broader themes in the case? Don’t forget the forest for
the trees.  

 

Screen Your Expert and Treat Your Case Right by Avoiding Any Big Tricks…

An area which is often overlooked is screening your expert. This is important. Treat it
like you would a major purchase, because it is. 

 
(a) Review and verify Curriculum Vitae. You can devastate an expert if he
lies on his CV. I have done this before with experts who had a long history of testifying.
Surprisingly, even though they had been around for years as experts no one had ever
checked out their background to see if they were legitimate. In one instance I found that
the expert not only wasn’t a professional engineer, but he had never even completed his
degree in engineering! At that time, I used a private investigator to dig up this  information. Today you check such things yourself online.  

(b) Internet search of expert. Do Google, Bing, Google Scholar, Yahoo
searches of your expert using the following format: “ EXPERT NAME” AND “keywords”.  I use key words and phrases such as “ testimony”, “ppt”, “lawsuit”, “pdf”, “
lawsuit”, “deposition”, “You Tube”, “video”, “MIL”, “motion in limine”, “motion to  exclude”, “daubert”, “frye”, “conference presentation”, “author”, “dissertation”, “thesis”,
“capstone”, “expert witness” etc. You can also do a full legal name search using the case
law filter to see if you can find any lawsuits.  

 
(c) Expert databanks. Organizations, attorney associations AAJ, State Trial
Lawyers Association, professional list serves, TrialSmith, Westlaw, Lexus-Nexus, often
provide either searchable databases or bulletin boards where information can be  electronically posted for inquiry and response. Some can be used at no cost, while others
charge a fee or subscription for searches.  

 
(d) Search of reported cases. I would examine both civil and criminal court
dockets, PACER, Westlaw, Lexus-Nexus, electronic court records. Your expert may have
testified or could have been excluded as a witness. Does he have convictions? Does he
have legal or financial problems?  

 
(e) Obtain and check references. Your check should include calls to attorneys listed by your expert as well as attorneys discovered in published cases.  

(f) Verify licensing. Is your expert really licensed or certified? Check– it
should be free. Has he had any disciplinary actions taken against his professional  licensing? How will you handle this at trial? 

(g) Review website and advertising of expert. What does he say? Are
articles attached or linked to the website? Check out his CV and terms of engagement as
an expert.

(h) Review social media of expert. Does the expert have a business or
personal page on YouTube, Facebook, Twitter, LinkedIn, etc. What articles, videos, or
comments has he posted?  

(i) Eyeball test. What kind of appearance does the expert make? Is he goofy
looking? Is he sloppy or slovenly in his appearance? Is he well spoken? Does he make
good eye-contact? Does he fit the part? Does he have charisma or personality? Would
you want him as your teacher? That is what he will be doing for you: teaching the jury
about your case.

(j) Excluded. Has your expert ever been excluded or admitted to testify over the
objection of opposing counsel? He should know this answer and be able to give you
past hearing transcripts, legal briefs and rulings.

You will be surprised by how much exaggeration and unsubstantiated bragging is contained in an expert’s CV.  Find your expert’s problems before you spend your money and risk your case by placing it in the hands of the wrong “expert.”

Setting the Table for Admitting Your Expert’s Testimony.

To serve your expert’s testimony up to a jury you must consider and establish the following:

1. Qualifications. You need to know precisely what you are using your expert for,
and then determine if the expert’s scientific, technical, or other specialized knowledge will help
the trier-of-fact to understand the evidence or to determine a particular fact in issue under Rule
702 of the Federal Rules of Evidence. To do this, you need to look at your expert’s qualifications
in each of the following areas:

 (a) Education

 (b) Background

 (c) Experience

 (d) Publications

 (e) Prior Cases

 (f) Certifications/Professional Memberships

Does each of these areas satisfy the evidentiary requirements under the rules of evidence? Look
for prior cases in your jurisdiction if you think there is a question. For example, a psychologist
or chiropractor may not be able to establish medical causation as this is outside of their area of
expertise. Check your local jurisdiction’s law. You may need a Doctor of Osteopathic Medicine
or a Doctor of Psychiatry instead.  

2. Reliability & Reliance. Others will be discussing in greater depth the issues of
admissibility of experts; however, this is something that needs to be addressed before you
commit your money to any expert. Expert scientific testimony is required to establish and
explain the complex causal relationship between an event and the resulting injury or damage. It is also required for matters requiring special expertise in areas such as medicine, engineering,  accounting, psychology, economics, statistics, forensic sciences (DNA analysis, handwriting analysis, fingerprinting, tool mark examinations, ballistics, entomology, pathology, etc.).

In evaluating the admissibility of such evidence, the trial court must make some
preliminary determinations when called up by the parties to do so, which are controlled by the rules of evidence. This is the minimum threshold which must be met before the trial court will
allow the jury to consider the evidence. I recommend that you know the law of your jurisdiction and preferences of your trial court:  

(a) Frey Test v. Daubert Analysis. In federal court, the Daubert test is
utilized in evaluating the admissibility of evidence. See Daubert v. Merrell Dow
Pharmaceuticals
, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Daubert
court specified a non-exhaustive list of factors that may be relevant in assessing the
reliability of scientific evidence, including:  

 
1. Whether the theory or technique can be and has been tested?  

 2. Whether the theory has been subjected to peer review and publication?

 3. Whether there is a known or potential error rate? and

 4. Whether the theory has been generally accepted within the relevant field of
study?

Daubert, 509 U.S. at 593–94, 113 S.Ct. 2786; Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003).  Federal case law interpreting the Federal Rules of Evidence is not binding upon thedetermination of state evidentiary law. Regarding Daubert, the concerns driving  coincide with the requirement of Indiana Rule of Evidence 702(b) that the trial court be satisfied of the reliability of the scientific principles involved. However, while Daubert may be  instructive and helpful, it is not controlling. State Auto. Ins. Co. v. DMY Realty Co., LLP, 977 N.E.2d 411 (Ind. Ct. App. 2012) (Daubert factors may be helpful in determining whether  scientific principles are reliable, but Indiana has not mandated its application).  

 In order for a witness to qualify as an expert:

 1. The subject matter [must be] distinctly related to some scientific field, business
or profession beyond the knowledge of the average lay person; and

 2. The witness [must be] shown to have sufficient skill, knowledge or experience
in that area so that the opinion will aid the trier-of-fact.

Bacher v. State, 686 N.E.2d 791, 800 (Ind. 1997). The proponent of expert testimony bears the
burden of establishing the foundation and reliability of the scientific principles and tests upon
which the expert’s testimony is based. McGrew v. State, 682 N.E.2d 1289, 1290 (Ind. 1997). 

Once the admissibility of the expert’s opinion is established under Rule 702, “then the accuracy, consistency, and credibility of the expert’s opinions may properly be left to vigorous cross-
examination, presentation of contrary evidence, argument of counsel, and resolution by the trier-of-
fact.” Bennett v. Richmond, 960 N.E.2d 782, 786–87 (Ind. 2012) (quotation omitted).

In determining whether expert testimony is reliable, the trial court acts as a “gatekeeper” to ensure that the expert’s testimony rests on a sufficiently reliable foundation and is relevant to the
issue at hand so that it will assist the trier-of-fact. Wallace v. Meadow Acres Manufactured Hous., Inc., 730 N.E.2d 809, 812 (Ind. Ct. App. 2000), trans. denied. “When faced with a proffer of expert
scientific testimony, the court must make a preliminary assessment of whether the reasoning or  methodology underlying the testimony is scientifically valid and whether that reasoning or  methodology properly can be applied to the facts in issue.” Hannan v. Pest Control Servs., 734  N.E.2d 674, 679 (Ind. Ct. App. 2000), trans. denied.  

Here in Indiana for example, there is no specific test or set of factors which must be considered in order to satisfy Evidence Rule 702(b), but some relevant considerations include whether the theory or technique can be empirically tested, whether it has been subjected to peer review and publication, and whether it has gained widespread acceptance. Id. at 679–80.  

Ultimately, deciding whether expert testimony is admissible is a matter within the discretion of the trial court. Wallace, 730 N.E.2d at 812. A trial court’s decision to exclude evidence will be
reversed only if that decision is clearly against the logic and effect of the facts and circumstances before the Court, or the reasonable, probable and actual deductions to be drawn from the evidence. Id. There is a presumption that the trial court’s decision is correct, and the burden is on the party challenging the decision to persuade the appellate court that the trial court abused its
discretion. Bennett, 960 N.E.2d at 786.  Stated another way, a trial court’s determination regarding the admissibility of expert  testimony under Rule 702 is discretionary and will be reversed only for abuse of that discretion.
See Bennett , 960 N.E. at 786-787 (held psychologist was qualified to opine that rear-end automobile accident caused motorist to suffer traumatic brain injury); TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010). The Indiana Supreme Court has instructed trial
courts to consider the general principles and general methodology underlying the reliability of an expert’s testimony, leaving the accuracy, consistency, and credibility of the testimony to be  determined by the trier-of-fact after testimony has been subjected to the adversarial process at trial. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2000). By requiring trial  courts to be satisfied that expert opinions will assist the fact-finder and that the underlying  scientific principles are reliable, Rule 702 guides the admission of expert scientific testimony. Id.
In other words, the general principles and general methodologies underlying the expert’s  testimony are to be examined by the trial court, but not every aspect of the expert’s testimony as might occur in federal court under Daubert.  

In evaluating the admissibility of evidence under Rule 702, a distinction is sometimes made between expertise that is described as “scientific” as opposed to “technical” in nature. For example, other jurisdictions have analyzed firearms tool mark evidence as something other than
“scientific.” See United States v. Willock, 696 F.Supp.2d 536, 571 (D.Md.2010) (“While … it  may be debatable whether [firearms tool mark identification evidence] is ‘science,’ it clearly is
technical or specialized, and therefore within the scope of [Federal Evidence] Rule 702.”).United States v. Glynn, 578 F.Supp.2d 567, 571 (S.D.N.Y.2008) (recognizing Kumho Tire’s applicability to firearm identification evidence); United States v. Monteiro, 407 F.Supp.2d 351, 372 (D.Mass.2006) (“Based on the factors outlined in Daubert and Kumho Tire, the Court  concludes that the methodology of firearms identification is sufficiently reliable.”); United States v. Green, 405 F.Supp.2d 104, 118 (D.Mass.2005) (observing that firearms identification is “not traditional science” and that Kumho Tire extends the Daubert standard to the case). Firearm identification evidence straddles the line between testimony based on science and experience.  Monteiro, 407 F.Supp.2d at 365.  

Firearms tool mark comparison is similar to other observational comparisons of physical characteristics which have been found to be “on the margins of testimony governed by Rule of Evidence 702(b) as expert scientific testimony.” West v. State, 755 N.E.2d 173, 181 (Ind. 2001)(assessing shoeprint comparison and identification). See also Carter, 766 N.E.2d at 381 (describing bite mark identification as “ ‘simply a matter of comparison of items of physical evidence to determine if they are reciprocal’ ”) (quoting Niehaus v. State, 265 Ind. 655, 359 N.E.2d 513, 516 (1977)); McGrew, supra, 682 N.E.2d at 1292 (citing with approval the trial court’s evaluation of hair comparison analysis as “not the traditional scientific evaluation” but
rather “simply a person’s observations under a microscope”).  

In order to successfully get expert testimony into evidence, the following foundational
prerequisites must be satisfied:  

1. The opinion offered must be one that in fact requires expertise to render it,

2. The witness must be qualified as an expert by knowledge, skill, experience,
training, or education to render such an opinion,  

3. The expert testimony must help the trier of fact to understand the evidence or
determine a fact in issue, and  

4. The expert testimony must rest upon reliable scientific principles.

In terms of the expert’s qualifications, you need to cover:

1. His education and training that qualifies him to act as an expert,

2. Certifications and testing that he has undergone in his chosen field of expertise,


3. Work experience relevant to his analysis and opinions, and

4. Competence to perform any tests or analysis used.

In establishing the reliability of the underlying scientific principles, you should look firstfor other court decisions which have accepted the methodology as reliable. If there are none, then you will probably need to turn to your own expert and present the court with established texts, journal articles, or other accepted learned treatises in the area in order to persuade the court of its
reliability.

(b) Expert’s experience in similar cases. As mentioned earlier, your expert
may have been put through his paces in earlier cases dealing with the same or similar
topic. Experts often times retain copies of these pleadings to ensure that counsel in later
cases is able to effectively establish the admissibility of their testimony and the reliability
of their analysis. So, check with your expert regarding his past experience.  

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