National Business Institute

Evidence and Expert Testimony Best Practices: Supporting Your Case

Strategies for Working with Evidence at Trial
Gerry Schulze BAKER & SCHULZE 501-537-1016 gerrysch@yahoo.com

How to Maximize Use of Evidence Rules 
 

700 series. Major advantage: the kind of opinion testimony an expert can give. Lay witness: 


Federal Rule 

(a) rationally based on the perception of the witness (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Expert Testimony   

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 , if

Federal clarifications     (But the same rule really applies everywhere) (1) the testimony is based upon sufficient facts or data (2) the testimony is the product of reliable principles and methods and (3) the witness has applied the principles and methods reliably to the facts of the case .

Basis of opinion testimony  Rule 703  Information provided at the (trial or) hearing  Hypothetical questions  If of a type reasonably relied on by experts in the field it needs not be admissible in evidence:  We re mostly talking about hearsay .

.Experts can rely on evidence not otherwise admissible   That doesn t mean they can be a conduit for that evidence. You can t get hearsay into evidence by asking an expert if she s run across it in investigating the case.

The Federal Rule makes that clear sort of.  Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect .

Ultimate Issue  Except as provided in subdivision (b). . testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Federal Addition  (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. . Such ultimate issues are matters for the trier of fact alone.

Rule 705   Rule 705. . Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data. The expert may in any event be required to disclose the underlying facts or data on crossexamination. unless the court requires otherwise.

.Rule 706  The court can appoint an expert.

 An expert is an individual who was not present when the incident occurred. Murphy. Soper. Effective Expert Witnessing Taylor & Francis (2007) .  Justin P. quoted in Jeffrey G. but for a healthy fee will happily imagine what it was like and how it happened.

Value of Experts   Add information Add understanding .

require expertise  Medical evidence   Injury cases Medical malpractice Products Liability   Defective Product Case  Manufactured in a defective condition that rendered it unreasonably dangerous . .What do you have to prove?  Does your proof. . . by its nature.

Mental Capacity  Probate/Guardianship   Questions of mental capacity Do legal definitions of competence fit well with what scientists believe about menta  Diminished Capacity in criminal cases .

 Do they?  I suspect. . I can t help seeing it. as an outsider looking in.  Handwriting identification. that this is an area in which underfunded scientific evidence creates serious risks of error. but I read about it.   My wife watches Bones on television. Somehow I doubt they have a computer that generates floating three-dimensional models at the Arkansas Crime Lab.Criminal cases   CSI! Bones! I don t do criminal law. My mother-in-law watches CSI.

Investigation   Fire investigation Accident reconstruction .

  This jumble of words only means something because judges and lawyers says it does.Standards written into the law  Reasonable Degree of Medical Certainty or Probability. then? . What does it mean.

the court is entitled to admit the opinion and leave its weight to the jury. Washington General Hospital. Regardless of which term he may have used. Norland v. 1972). 697 (8th Cir. if his testimony is such in nature and basis of hypothesis as to judicially impress that the opinion expressed represents his professional judgment as to the most likely one among the possible causes of the physical condition involved. . The courts have come to recognize that the competency of a doctor's testimony cannot soundly be permitted to turn on a mechanical rule of law as to which of the two terms he has employed. 461 F.2d 694.Reasonable Degree of Medical Certainty or Probability   The use of the terms "probable" and "possible" as a basis for test of qualification or lack of qualification in respect to a medical opinion has frequently converted this aspect of a trial into a mere semantic ritual or hassle.

To the contrary. if two or more causes work together to produce damage. . This does not mean that the law recognizes only one proximate cause of damage. produces damage and without which the damage would not have occurred. When I use the expression proximate cause. in a natural and continuous sequence. with which you may not be familiar.Proximate Cause   The law frequently uses the expression proximate cause. I mean a cause which. then you may find that each of them was a proximate cause.

com  "a. especially relating to or being a proximate cause.  e." "next.Proximate the medical definition  Medical dictionaries define the term "proximate" as "immediate.stedmans. next.g. preceding. b.  www.  Merriam Webster Online Medical Dictionary. Stedman's Online Medical Dictionary s. "proximate.com/medical/proximate ." and "proximal. or following.v. very near.  www.merriam-webster.

State Farm Mut.W. 808 S. . 305 Ark 459.Arkansas Law The proximate cause need not be the last or nearest one. v.2d 759 (1991). Co. Auto Ins. Pharr.

last or nearest. .Medical Usage:  Proxmate means exactly.

Example .

proximate .Merriam Webster Unabridged Dictionary s.v.

The Language of the Law (Little Brown & Co. 1964) .David Mellinkoff..

Statistics   We don t think in a statistically logical fashion. Lion gives you a cash discount if you buy your gasoline there. . What bothers you more:   Esso charges you a surcharge to use your credit card.

and a two-thirds probability that no people will be saved" . Two alternative programs to combat the disease have been proposed. Assume the exact scientific estimate of the consequences of the programs are as follows. which is expected to kill 600 people."   Program A: "200 people will be saved" Program B: There is a one-third probability that 600 people will be saved.Hypothetical  Imagine that the United States is preparing for the outbreak of a disease from abroad.

Which should we try show of hands  There s no right answer here PROGRAM A __________ PROGRAM B __________ .

"   Program 1: "400 people will die" Program 2: "there is a one-third probability that nobody will die. which is expected to kill 600 people. and a two-third probability that 600 people will die" . Two alternative programs to combat the disease have been proposed.Different Hypothetical  Imagine that the United States is preparing for the outbreak of a disease from abroad. Assume the exact scientific estimate of the consequences of the programs are as follows.

.Which should we try show of hands  There s no right answer here PROGRAM 1 __________ PROGRAM 2 __________ Credit for these questions to Amos Tversky and Daniel Kahneman.

she was deeply concerned with issues of discrimination and social justice. single. and very bright. and also participated in anti-nuclear demonstrations. or (b) Linda is a bank teller and active in the feminist movement. She majored in philosophy. outspoken. Which of these two options is more probable:   (a) Linda is a bank teller. As a student. .Linda   Linda is 31 years old.

such as an inflammatory piece of evidence. until the admissibility of that matter has been shown out of the hearing of the jury. .Motions in Limine  Motions in limine are for a specific purpose: to prohibit mention of some specific matter.

. To reaffirm all the rules of evidence To prevent every bad thing that has ever happened to you at trial from happening again.Motions in Limine  What they re not for:  To require a party to try the case twice  That s what summary judgment is for.     To choke off an entire claim or defense To prohibit a party from proving a case by use of vague and sneaky language that broadly excludes virtually all evidence.

object to them. and for the most part.Multi-part motions in limine have become the norm   You need to read them. reply to them. . I never agree to a motion in limine if I can t figure out what evidence the other party wants to exclude.

. Asked the court to direct me not to tell the jury that the defendant had been sued before he hadn t.Irrelevant Motions in Limine  Boilerplate collected from previous cases. We did not intend to do so.      Asked the court to direct me not to tell the jury that the defendant was deposed twice he wasn t. Asked the court to direct me and my witnesses not to mention insurance in any way in a direct action against an insurer. Asked me to direct the court not to mention the fact that the defendant had been obstructionist in discovery. but this particular defendant had been not actually been obstructionist in discovery. Asked the court to direct me and my witnesses not to refer to any communications for which Rainey asserted a privilege. I know you won t believe this. because to our knowledge there wasn t a Rainey associated with the lawsuit.

Generic Motions in Limine    No hearsay No expert testimony without laying a foundation Etc. .

The jury case. the evidence that achieves the former should be identical to that which achieves the latter. that s not what happens. convincing the jury to find in your favor. proving enough to be allowed to go to the jury and get the instructions you need. . In the real world.Using evidence to influence the jury  The two case analysis:     The judge case. In theory.

Otherwise.Magic Words   Magic Words are almost part of the judge case The Arkansas courts continually repeat that magic words aren t required. they are. . . . as a practical matter. required. And sometimes.   But they re not forbidden either. . your expert may not judicially impress that the opinion expressed represents his professional judgment as to the most likely .

Evidence comes from witnesses     Consider the source It s a natural human tendency. The strength of your evidence is going to depend on how the factfinder evaluates your source. . We re going to talk about how to make your expert more worthy of belief.

  The best expert is somewhat of a teacher. . make you expert s testimony flow.Let the evidence come from witnesses   Rules against leading help Be aware of the role of television.  To the greatest extent possible. Models and illustrations help. Powerpoint presentations help.

.  Photographs  For accident scenes. a satellite shot is almost always available these days.Tools of Experts  Powerpoint  It can replace the old flip chart  Although you still may want to use an old flip chart in some cases.

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.Thanks to Google Earth  There are all kinds of resources out there.

but he or she might be able to produce a plausible one.  Matson. Well-thought-out graphics can allow you to break down complex processes into simple. understandable elements.Computer Graphics  Drawings/Computer Graphics. et al (in the materials)  Your expert probably could not justify the computer assisted reenactment I just produced. . Nothing sticks in jurors' minds as much as strong visualization.

Media professionals can take an important document and highlight a phrase or a portion by dulling the remainder of the page and showing a magnifying glass (or some other technique) to expand what you want the jury to see. Highlighted Critical Documents. This approach should be commingled with other multimedia to relate evidence to your opinions in a visual way.Highlight Documents  4.  Matson .

Call-outs Did this incident disrupt the witness s lifestyle? The witness missed his tee time. Not from Matson .

Always consider how your opinions can be enhanced if you have a scale model available. in which case your model will not be allowed in the courtroom. Make sure that sufficient fidelity to reality is maintained. or the other side may object and the judge may agree. Scale models can be costly but are potentially worth every penny. 5.  Matson . remember that the other side can use your model to demonstrate its own points. Also. Models.

The sky s no longer the limit. et al on this too in the materials. There is no limit except what fairly and accurately represents the truth.Video and Animation  I ve quoted from Matson. .

Any questions?   Let s review the framing questions earlier: Of the disease problems:  Programs A and B   A B 1 2  Programs 1 and 2   .

Programs B and 2 are the same. and a two-thirds probability that no people will be saved" Program 2: "there is a one-third probability that nobody will die. and a two-third probability that 600 people will die"   .   Program A: "200 people will be saved Program 1: "400 people will die Program B: There is a one-third probability that 600 people will be saved.Programs A and 1 are the same.

 It s possible she s not active in the feminist movement. .Linda  Which of these two options is more probable:   (a) Linda is a bank teller. or (b) Linda is a bank teller and active in the feminist movement. Both options assume she s a bank teller.

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