Category Archives: Trial Advocacy

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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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.

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.

Motion in Limine: An Effective Pretrial Tool and Weapon – Wrongful Death & Remarriage (Part 6)

Skunk

The defense oftentimes wants to muddy the waters and misdirect or sway the jury away from a person’s cause with information that is irrelevant or unfairly prejudicial. Wrongful death cases are no exception and remarriage is one of those topics.  Fortunately, Indiana court’s have joined the majority of jurisdictions which have prohibited such tactics by the defense as irrelevant and unfairly prejudicial.

The general rule in Indiana is that in a wrongful death action a right of action or an amount of recovery is not affected by the fact that the surviving spouse has remarried or contemplates remarriage. Wabash R. Co. v. Gretzinger (1914), 182 Ind. 155, 104 N.E. 69; Consolidated Stone Co. v. Morgan (1903), 160 Ind. 241, 66 N.E. 696; Gilmer v. Carney, 608 N.E.2d 709 (Ind. Ct. App. 1993); City of Bloomington v. Holt (1977) 172 Ind. App. 650, 711, 361 N.E.2d 1211(held motion in limine prohibiting mention of the fact, probability or possibility of remarriage of the plaintiff including with whom he is residing was proper).  This restriction applies and restricts proof that a spouse is living with another person and applies regardless of gender. City of Bloomington v. Holt, supra.

The enactment of IC 34-4-36-1,2 concerning payments from collateral sources should not be read or interpreted as changing Indiana’s traditional common law view. The collateral source statute clearly addresses only evidence of monetary payments. Gilmer v. Carney, supra. Since statutes in derogation of the common law are to be strictly construed and should not be extended beyond their express terms or what they unmistakably imply, Indianapolis Power Light v. Brad Snodgrass, Inc. (1991) Ind., 578 N.E.2d 669, IC 34-4-36-2 should not be extended to embrace nonmonetary items such as remarriage. Id.

So be ready for this issue and address it in your pretrial motion in limine so that the defense is prohibited from throwing a skunk into the jury box.

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.

*   *   *   *   *
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.

Outlining Your Questions… Is There a Better Way?

20120209-183103.jpgExactly how do you want to format your questions? There are several schools of thought on this matter. I know successful attorneys that literally script out every question and every answer to the question. In this way, the attorney can visualize exactly what will take place in the courtroom. Such a format also allows someone else, such as a paralegal or another attorney, to go through the outline with the witness even if you were not available to prepare them. The downside of such an outline is that usually ends up being extremely long like a deposition transcript. Also, when you work through the testimony in that fashion you can become a little too pat and maybe even a little stale, reversed and staged.

​I will typically prepare an outline starting with the witness’s qualifications and background and then work through the evidence I wish to get from the witness. Instead of questions, like the game show Jeopardy I write out only the answers. Instead of 80 page outlines, my outlines typically run 5 to 12 pages. The advantage of such a system is that you can check your outline quickly. You focus on the answer you need to get instead of the questions. I form the questions on the fly as I come to each new fact I must elicit from the witness. Your questions come across more naturally and do not seem staged or scripted since they are slightly different each time. This keeps your witness alert as well.

​Initially, this will take a little extra effort. However, you will be rewarded by developing this skill of being able to formulate questions on the spot. If an objection is sustained to a question you ask, instead of staring blankly at your outline, you will rapidly formulate a new question which will hopefully obviate the objection raised.

​On the top of each witness outline, I like to write the elements of my claim that the witness will help support and any evidentiary foundations that might be required of the witness and legal authority supporting the same. Another way of accomplishing the same end is to place the foundational prerequisites on a Post-it and affixed to the back of the exhibit.

​You want to look organized and prepared for the jury. Your mastery of your own exhibits will go a long way in impressing the jury of your command of the case and your competency and professionalism. Need a system to keep all your witnesses and exhibits organized? Sometimes the best system is the simplest one.

​I use a separate folder for each witness and each exhibit. I make sure all the folder tabs line up in a single row for the witnesses and label each witness folder with their last name, first name or, if it’s a record keeper, I use the name of the organization. By using a single row of tabs you can quickly thumb through the files without having to scan side to side. I then alphabetize the folders from A to Z.

​In each witness folder, I keep a copy of the witness’s outline and a copy of any exhibits needed for the witness. This way if I need to run out and meet with a witness, I just pull their folder and run. Because of my preparation, I know I have everything in hand I need to deal with that witness.

​Each exhibit is also kept in a separate tabbed folder or tabbed binder and is sequentially pre-numbered or pre-marked with a letter. The folders or tabs are then sequentially ordered just as was done with the witnesses.

​I also prepare two lists, one for witnesses and one for exhibits. Witnesses are listed alphabetically with the number or letter for each exhibit to be shown to that witness listed in the adjacent column.

​I create a second list with exhibits sequentially listed and all witnesses crossed reference for each exhibit. On this list I also have columns to note if an exhibit was tendered into evidence and whether it was admitted or excluded. This way you or your assistant can know exactly which exhibits need to be pulled, shown to and covered with each witness. You also can track if you need to make an offer of proof for exhibits excluded.

​I outline each element of proof for my claim(s) and list the witness and exhibit which supports each separate element of the claim(s). This way you can easily respond to a motion for a directed verdict by outlining the proof which was entered through the testimony of specific witnesses and the exhibits on your shorthand list of proof.

​I have successfully used this system for trials involving dozens of witnesses and hundreds of exhibits. It is simple and it works. It also keeps your table organized and uncluttered which conveys to the jury you know what you are doing.

Plotting Your Strategy: Does Your Trial Have a Theme?

PaintingA theme acts as the unifying thread of your case. It is a thing that motivates the jurors to take action. Your theme needs to be integrated into your jury void dire, opening statement, direct and cross-examination, closing argument and jury instructions.

There are number of potential themes. Watch movies and see how things are developed and see what are the best and emotive ones. I have a book that has nothing but quotes from various movies which I try to interject into my closings to highlight the theme and make them more interesting and compelling. For example, a closing argument may dealt with the themes “profits over safety” and “accepting responsibility“. Here is an introduction from one of my closing arguments:

This is an important case. It’s important for a lot of reasons –  as I said at the beginning of this trial, it’s a case about accepting responsibility and in this case Mr. Smith did not accept responsibility. Mr. Smith ignored facts. Mr. Smith ignored laws. Mr. Smith was concerned about one thing and one thing only and that was himself. One of the things that I discussed with you at the very start of voir dire was this idea that we do not allow profits to take priority over safety. There are a lot of good reasons why we have our safety laws, but as I discussed, you have to have laws and you have to make people accept responsibility for the harms and the losses that they have caused, because if you fail to do that there’s absolutely no incentive for someone to be responsible.

​Below is a short list of some themes:

​a.​ Safety – We do not allow profits to take priority over safety.

​b.​ Keeping Promises – A man’s word is bond.

​c.​ Preciousness of Life – As Will Munny put it in the western Unforgiven, “It’s a hell of a thing, killing a man. Take away all he’s got and all he’s ever gonna have.” That is what happened here.

​d.​ David & Goliath – Everyone loves to see the little guy prevail over the big bully whether it be the government or a large corporation.

​e.​ Theft of Innocence – When a child is injured or emotional traumatized by an event or act, their life is never the same and the joy of childhood is ripped away.

​f.​ Right vs. Wrong – You may be able to paint the case in simple terms which we are all taught as children; you do what is right because that is your duty.

​g.​ Failure to Accept Reality – Don’t Confuse me with the facts, my mind is made up.

​h.​ Greed/Selfishness – Such things often lead people to take short cuts and ignore their responsibilities to others.

​i.​ Struggling to Overcome Impossible Odds/Courage– Everyone cheers for a person who bravely soldiers on against difficult circumstances. Perhaps your client was seriously injured and has struggled to regain some semblance of his life. His efforts are heroic and worthy of the jury’s admiration.

​Themes in cases are virtually endless and only confined by your imagination. All great literature, including the bible, strike various themes that describe why we and what we should do. Tap into these themes and use them to unify your opening statement and closing argument.

Find those descriptive words and themes that best etch a picture in the jury’s mind about which your case is all about. Return to the themes raised in your opening statement and hammer them home in your examinations and closing. You may do this with topically leading questions such as, “I want to talk to you about the day where everything changed for Mary, do you understand?” Or it might take the form of, “I want you to tell the jury, about how this incident changed your life,” and then delve into the topic as if the witness were your client. Whatever powerful words you’ve created to draw the jury into your client’s story should be used to tie the evidence together for them with your questioning.

Hammer home your themes on cross-examination through the use of rhetorical questions and deductive logic.

Lights, Camera, Action: Directing and Producing Your Trial

imageYou are the “director” and “producer” of your trial and the witness’s testimony. We can’t change the facts, but you do have the power of when and how to present them subject to the limits of the Rules of Evidence. Indiana Rule of Evidence 611 controls the manner and mode of interrogation of witnesses. This Rule provides as follows:

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence

(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

​There will be times when you will have to call either the opposing party or a hostile witness to make your case. Do not forget that you are allowed to treat that witness or party as if they are on cross-examination. In all other instances, any witness called in your case in chief must not be asked leading questions. The court also has the power to limit your examination if it delves into matters which are irrelevant, repetitious, confusing, misleading, or unfairly prejudicial. Almost all evidence is prejudicial, otherwise she wouldn’t present it. It’s only when the evidence is unfairly prejudicial and the prejudice substantially outweighs its probative value that it may be excluded. (IRE 403) With these thoughts in mind let’s delve into the organization of your questioning.

​A witness’s testimony has to have a clear beginning, middle and end. The beginning typically involves laying out the witness’s personal background and their opportunity to observe. Usually at the beginning of the examination you are establishing for the jury why they should find your witness a reliable source of information.

​The middle part of the testimony is typically the meat of the matter you need to address with the jury. Remember, you might know the case like the back of your hand but the jury doesn’t. As a result, it’s important to address issues in a chronological fashion and to avoid the use of pronouns. This is true not only for your questions, but the witness’s answers as well. A jury will easily get lost if you do not use the names of the persons involved. When it comes to your client, never use the word “plaintiff” or “defendant”. That sounds like your client is not a human. You want the jury to connect with your client on a personal level. Once you’ve established in a clear fashion as part of a witness’s testimony that the opposing party identity  (for example “the plaintiff, John Smith”) you might want to resort to using the term “plaintiff” or “defendant” in referring to the other party.

​Finally, always end the witness’s testimony on a high note. Try to structure your examination so that you leave your strongest point with the jury as you sit down. Remember the power of primacy and recency effect. People tend to remember that which they hear first or which they have heard most recently. The first item in a list is initially distinguished from earlier activities as important (primacy effect) and may be transferred to long-term memory by the time of recall. Items at the end of the list are still in short-term memory (recency effect) at the time of recall.

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