evidence rule refresher

EVIDENCE RULE REFRESHER

Part of the Newbie Litigator School 2015 Series

Premier Date: September 3, 2015


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MEET THE FACULTY

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PANELISTSPatrick Boyle VenableMatthew Hertko Jones DayElizabeth Vandesteeg Levenfeld Pearlstein


MODERATORHugh Totten,

Totten Law Firm

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Practical and entertaining education for business owners and executives, Accredited Investors, and their

legal and financial advisors.

For more information, visit www.financialpoisewebinars.com

DISCLAIMER:

THE MATERIAL IN THIS PRESENTATION IS FOR INFORMATIONAL PURPOSES ONLY. IT SHOULD NOT BE CONSIDERED LEGAL ADVICE. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE WHAT

MAY BE BEST FOR YOUR INDIVIDUAL NEEDS

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ABOUT THIS SERIES

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This series is targeted to attorneys who are just starting to get involved in civil litigation, or who could use a refresher on some litigation fundamentals. The purpose is to provide an introduction to various different components and parts of litigation – from the basic rules of civil procedure and evidence, to dispositive motions, through trial, and on to appeal and post-judgment collection work. The series is best viewed as a whole, building from one session to the next.

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ABOUT THIS EPISODE

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You have the evidence that you need to prove your case. Now, how do you get it admitted? Our panel will explore evidentiary foundations related to authentication of records, competency and credibility of witnesses, hearsay rules and exceptions, privilege issues, and opinion evidence. We’ll also discuss how motions in limine can help to keep evidence in or out and streamline your trial.

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EPISODES IN THIS SERIESEPISODE #1 Federal Civil Procedure Rule Refresher 8/18/15

EPISODE #2 Discovery Practice 8/26/15

EPISODE #3 Evidence Rule Refresher 9/3/15

EPISODE #4 Mediation Basics 9/10/15

EPISODE #5 Working with Experts 9/22/15

EPISODE #6 Motion Practice I- TROs and Preliminary Injunctions 10/6/15

EPISODE #7 Motion Practice II - Motions to Dismiss and Summary Judgement 10/20/15

EPISODE #8 Anatomy of a Trial 10/27/15

EPISODE #9 Appellate Practice – 101 11/3/15

EPISODE #10 Post-Judgment Proceedings & Collections 11/11/15


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(Dates below are premier dates; all webinars also available on demand)

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History of the FREsEfforts to make evidence rules uniform began in

1961Submitted to Congress in 1972Watergate delayed passage (and required

changes) until 1975


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FREs By The NumbersEleven – number of articlesSixty-seven – number of rulesTwenty-five – number of amendments since

1975Priceless – understanding the exceptions to the

hearsay rule


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Newbie Overview Relevance and undue

prejudice Using documents at trial Hearsay Experts Demonstrative evidence Motions in limine


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FREs 401-403: RelevanceEvidence is relevant if “it has any tendeny to

make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”

Evidence need only have a tendency to prove a fact in issue

Fluid definition


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403: Relevancy and Undue PrejudiceSomething of unquestioned relevance can still

be excluded if its probative value is substantially outweighed by a danger of one of the following:Unfair prejudiceConfuses the issuesMisleading the juryTime waste“Needless,” cumulative evidence


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403: Undue prejudiceAn undue tendency to suggest a decision on an

improper basisEmotional decisions

Does unfair surprise count?Wigmore (no) versus McCormick (yes)Probably if coupled with something else, such as

prejudice or confusion of issues


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Hearsay As Applied to DocumentsRecall Rule 801: Opposing party statements not

hearsayRule 801 applies to statements made by the

party, agent and employee So you do not need an exception to introduce

the opposing party’s documents


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Considerations About Using Documents at Trial

Witness must first identify the document unless it is already admitted into evidence

Court will not permit lawyer to identify the document and summarize it in the question until witness evidences a connection to the document

Marked for identification is not the same as admitted into evidence


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Considerations About Using Documents at Trial

Consider whether you want to offer the document in evidence

Was testimony caused by document better than the document really is

Consider the timing of decision to admitDo you need the jury to be seeing the document

during testimonyDo you want them to be reading the document

or listening to the testimony


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Hearsay Hearsay is a statement that the declarant does

not make while testifying at the current trial or hearing and that a party offers in evidence to prove the truth of the matter asserted in the statement

Considered carefully, the rule does not apply to most testimony provided at trial

Typically applied only when witness is up to the essence of his testimony


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Not Hearsay By Rule 801Prior inconsistent statementPrior consistent statement offered to rebut

charge of recent fabricationPrior consistent statement offered to rehabilitate

declarant’s credibilityWitness Identifications Statements made by party and offered against

the opposing party (formerly called admissions)


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Important Hearsay Exceptions

Medical RecordsRecorded Recollection – witness once knew

about but cannot recall well enough to testify competently

Records kept in the course of regularly conducted activity (business records)

Public RecordsProperty records


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Hearsay Exceptions (cont’d)Ancient documents whose authenticity is

established (20 years) Statements in learned treatises


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Exceptions only when Declarant Unavailable

Applies when witness refuses to testify, including on ground of privilegeApplies if witness testified to not rememberingApplies if witness cannot or will not testify


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Exceptions only when Declarant Unavailable

Former TestimonyStatement under belief of imminent deathStatement against interest


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Rule 807 – Residuary Exception

Hearsay statement not excluded if statement is trustworthy, offered as evidence of material fact and more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts


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Demonstrative ExhibitsRules are very strict about admitting testimony

and documents into evidence but very loose about what other information can otherwise be communicated

Effectively no rules on content of openings, closings, rhetorical questions, demonstrative exhibits

Cannot create demonstratives that have incorrect facts, but generally can juxtapose facts in any manner


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Demonstrative ExhibitsTimelines used to further argument in opening

used during trial testimony continually reinforces arguments during trial

Demonstrative exhibits created for the trial are not admissible into evidence so courts are not on high alert for demonstrative exhibits because they will not be admitted into evidence, but what difference does that really make?


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Current Trends: Admissibility of Evidence from the Wayback

Machine• The “Wayback Machine” is a website maintained by the Internet Archive that depicts websites as they appeared at various points in the past

• Parties may seek to admit evidence – typically in the form of screen shots of old websites – for a variety of reasons:

• Information relating to a party or its products / practices / policies• Prior art in the context of a patent litigation• Party admissions

• Courts have taken different approaches in assessing the admissibility of information from the Wayback Machine

• Some courts have held such documents inadmissible under Rule 901 (authentication) or as hearsay• Other courts have deemed them authentic and admissible, when accompanied by a declaration / testimony from an employee of the Internet Archive


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Experts – Standards for Admissibility

FRE 702

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;(b) the testimony is based on sufficient facts or data;(c) the testimony is the product of reliable principles and methods; and(d) the expert has reliably applied the principles and methods to the facts of the case.”


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Experts – Standards for Admissibility (cont.)

• District court judges serve a “gatekeeper” role in determining the admissibility of expert testimony

• Daubert v. Merrell Dow Pharm., Inc., 113 S.Ct. 2786 (1993)

• “[T]he Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands.” Id. at 2799.

• Courts consider a variety of factors in assessing whether the proffered expert testimony is reliable and relevant and, accordingly, admissible


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Motions in limine• Motion seeking to exclude evidence from admission at trial – called “in limine” because such motions are filed before trial and allow the parties to obtain evidentiary rulings in advance and before any inadmissible evidence is even referenced or alluded to in front of the jury

• Typically, the case schedule will have a deadline by which motions in limine must be filed and will include a briefing schedule for such motions (i.e., motions, responses/oppositions, and replies)

• The subject of these motions can include:• Specific or categories of documents• Testimony from specific witnesses• References to certain events / topics / issues


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Impeachment of a Witness FRE Rule 607: Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness's credibility.

FRE Rule 608: A Witness’s Character for Truthfulness or Untruthfulness

(a) Reputation or Opinion Evidence. A witness's credibility may be attacked or supported by testimony about the witness's

reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.

But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

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Impeachment of a Witness cont.(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible

to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But

the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or

untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates

only to the witness's character for truthfulness.

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Methods of Impeachment

RULE: A witness may be impeached by (1) Prior Inconsistent Statements (2) Bias (3) Interest (4) Conviction of A Crime (5) Specific Instances of Misconduct (6) Opinion or Reputation Evidence for Truthfulness (7) Sensory Deficiencies (8) Contradictory Facts

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Prior Inconsistent Statement Impeachment

RULE: Party may show by cross-examination or extrinsic evidence that the witness has on another occasion made statements inconsistent with his present testimony.

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Requirements for use of Extrinsic Evidence to use Prior Inconsistent

Statements to Impeach Requirements for Extrinsic Evidence: Proper foundation

must be laid and the statement must be relevant to some issue in the case (not collateral)

Foundation for Extrinsic Evidence: Witness must be given an opportunity to explain or deny the statement.

Exception: Inconsistent statements by hearsay declarants may be used to impeach despite lack of foundation.

Exception: Under the FRE, foundation requirements may be dispensed with where justice requires.©2015


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Evidentiary Effect of PINS Hearsay-Impeachment Only: If PIC is hearsay,

then only admissible for impeachment.

Under Oath- Substantive OK: IF statement was made under oath at prior proceeding, then it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.

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Conviction of Crime Impeachment

RULE: A witness may be impeached by proof of a conviction (arrest or indictment is not sufficient) for certain crimes. A pending review or appeal does not affect the use of a conviction for impeachment.

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Impeachment by Dishonesty Crime Conviction

Any Crime involving Dishonesty: A witness may be impeached by any crime, felony, or misdemeanor, requiring an act of dishonesty or false statement and the court has NO DISCRETION to bar impeachment by these crimes.

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Specific Instances of Misconduct To Impeach

RULE: A witness may be interrogated on cross about an act of misconduct that is probative of truthfulness but examiner may only inquire in good faith.

Extrinsic Evidence is NOT Permitted: Extrinsic Evidence of bad acts to prove misconduct is not permitted.

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Contradictory Facts Impeachment General RULE: Extrinsic evidence of facts that contradict a

witness's testimony may sometimes be admitted to suggest that witness's mistake or lie on one point indicates erroneous or false testimony as a whole.Extrinsic Evidence is PERMITTED: where:1. The witnesses testimony on a particular fact is a material issue in the case2. The testimony on a particular fact is significant on the issue of credibility; or3. The witness volunteers testimony about a subject as to which the opposing party would otherwise be precluded from offering evidenceExtrinsic Evidence NOT permitted: to prove contradictory facts that are collateral.

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Impeachment on a Collateral Matter:

RULE: Where a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter precludes his opponent from proving the statement is untrue either by extrinsic evidence or a prior inconsistent statement.

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Rehabilitation Rehabilitation: RULE: A witness who has been

impeached may be rehabilitated by:1. Explanation on Redirect.2. Good Reputation/Opinion for Truthfulness3. Prior Consistent Statements

RULE: Only where the testimony of the witness has been attacked by an express or implied charge that the witness is lying or exaggerating because of some motive, a previous consistent statement is admissible to rebut this evidence.Weight: A prior consistent statement is admissible for both rehabilitation AND substance regardless of whether it was made under oath.

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PRIVILEGEFRE RULE 501: Privilege in General

The common law--as interpreted by United States courts in the light of reason and experience--governs a claim of privilege

unless any of the following provides otherwise:

• the United States Constitution;

• a federal statute; or

• rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision.

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CHARACTERFRE RULE 405: Methods of Proving

Character(a) By Reputation or Opinion. When evidence of a person's

character or character trait is admissible, it may be proved by

testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness,

the court may allow an inquiry into relevant specific instances of the person's conduct.

(b) By Specific Instances of Conduct. When a person's character or character trait is an essential element of a charge, claim,

or defense, the character or trait may also be proved by relevant specific instances of the person's conduct.

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CHARACTERFRE Rule 406. Habit; Routine

PracticeEvidence of a person's habit or an organization's

routine practice may be admitted to prove that on a particular occasion the

person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of

whether it is corroborated or whether there was an eyewitness.

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General Character Evidence Rule General RULE: Unless character is directly in

issue (defamation) evidence of character offered by either party to prove the conduct of a person in the litigated event is generally inadmissible.

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PRIVILEGE FRE Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection,the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:

(1) the waiver is intentional;

(2) the disclosed and undisclosed communications or information concern the same subject matter; and

(3) they ought in fairness to be considered together.

(b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

(c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:

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PRIVILEGE FRE Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (cont’d)

(1) would not be a waiver under this rule if it had been made in a federal proceeding; or

(2) is not a waiver under the law of the state where the disclosure occurred.

(d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other federalor state proceeding.

(e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.

(f) Controlling Effect of This Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision.

(g) Definitions. In this rule:

(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and

(2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangibleequivalent) prepared in anticipation of litigation or for trial.

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Federal Court Recognized Privileges Recognized by federal courts:

1. Attorney-Client Privilege2. Privilege of Spousal Communication3. Psychotherapist/Client4. Social Worker/Client

The most common in federal courts are Attorney-Client and Spousal

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MORE ABOUT THE FACULTYHUGE TOTTEN

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Mr. Totten is an experienced and well-recognized business trial lawyer who has garnered many multi-million dollar judgments, awards and settlements for his clients. Over a 28-year career in two Big Law firms as well as a boutique he founded with three other lawyers, he has handled client matters all over the United States, focusing on complex business and valuation disputes. He is now in solo practice and works with a few special clients at a time, leading and assembling teams of lawyers and experts to address their most important challenges. He also is now offering his services as an arbitrator. His expertise and thought leadership have been extensively recognized in major media outlets and hundreds of associated web sites. He was recently featured in “Legal Visionaries: How To Make Their Innovations Work For You,” a best seller in its category on Amazon. He is a pioneer and entrepreneur in the use of alternative fees in legal representation. He also has published extensively and is a frequent speaker, lecturer and facilitator on various legal matters and constitutional issues. He is also a practitioner mentor in the ground-breaking international law school program “Law Without Walls,” administered through the University of Miami Law School and approximately 15 other law schools across the world.

[email protected]

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MORE ABOUT THE FACULTYPATRICK BOYLE

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[email protected]

Patrick Boyle is a partner in Venable’s New York Litigation Group. A successful New York and New Jersey trial attorney who has tried 25 cases to conclusion, Mr. Boyle maintains a high-profile commercial litigation practice with significant experience handling insurance coverage, professional liability and financial (particularly mortgage-backed securities) cases.Mr. Boyle’s clients include high-profile corporate clients and government entities in the financial, insurance, transportation, maritime, construction, environmental, and manufacturing industries. He also advises corporations and individuals in tort liability and insurance claims. He has argued a wide range of complex appellate matters involving securities, banking, tax, lender liability, and catastrophic tort liability issues.With over 15 years of litigation experience, Mr. Boyle has worked on hundreds of civil litigations, including complex commercial and financial cases, construction and environmental cases, insurance coverage, and tax litigations.Mr. Boyle spent the decade before becoming a lawyer as an industrial hygienist and environmental safety professional and held nine certifications from the New York State Department of Labor and the U.S. EPA for air monitoring and building inspections to determine the presence of asbestos-containing building materials.

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MORE ABOUT THE FACULTYMATTHEW HERTKO

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[email protected]

Matt Hertko has experience in all aspects of IP litigation, including conducting direct and cross-examinations of fact and expert witnesses at jury and bench trials; arguing and presenting at Markman, evidentiary, and other types of hearings; drafting various types of briefs and motions, including summary judgment and Markman briefs; taking and defending depositions of fact, corporate, and expert witnesses; and handling other areas of discovery. He also has assisted clients in transactional matters, having drafted and negotiated settlement agreements and license agreements. Matt's cases have spanned a broad spectrum of technologies, and he has served as trial counsel for clients in the semiconductor, integrated circuit, consumer electronics, communications, automotive, business machine, nutraceutical, and liquid crystal display markets.

Prior to joining Jones Day in 2014, Matt was a partner in the intellectual property group of a large international law firm. He has represented clients in jury trials, ITC proceedings, Markman and other evidentiary proceedings, bankruptcy proceedings, and mediations. Matt has litigated in jurisdictions throughout the United States including popular patent venues such as the Eastern District of Texas, Northern District of California, Northern District of Illinois, Western District of Wisconsin, Southern District of New York, and the ITC. He also has written and spoken extensively on patent law and the America Invents Act.

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MORE ABOUT THE FACULTYLISA VANDESTEEG

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[email protected]

Lisa is a partner in Levenfeld Pearlstein's Litigation Group where she concentrates in the areas of bankruptcy and commercial litigation.

Lisa’s experience has shown her that a “win” can take many forms. The issues facing her clients and their industries are diverse and require a situational approach, one that is driven by the goals her clients are ultimately looking to achieve. Communication is imperative in establishing those goals, so Lisa partners with her clients to first establish what their distinct “win” looks like in order to then determine a tailored plan of action. She also understands that time and cost considerations, though often overlooked, can sometimes be critical to formulating a successful plan.

While each of Lisa’s cases demands a distinct posture, when possible, she works to establish a more collaborative and cooperative style rather than a strictly confrontational one. Lisa concentrates her practices in the areas of bankruptcy and commercial litigation. She works extensively in the area of creditors’ rights, representing secured creditors, unsecured creditors, creditors’ committees, landlords, and shareholders in Chapter 11 and Chapter 7 cases in courts throughout the U.S. She has also worked on all aspects of civil litigation in federal and state courts, from initial pleadings through discovery, motion practice, trials and appeals.

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Visit www.chamberwise.org


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About Financial Poise™

DailyDAC, LLC, d/b/a Financial Poise™ provides continuing education to business owners and executives, investors, and their respective trusted advisors. Its

websites, webinars, and books provide Plain English, sometimes entertaining, explanations about legal, financial, and other subjects of interest to these

audiences.

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IMPORTANT NOTE:THE MATERIAL IN THIS PRESENTATION IS FOR

GENERAL EDUCATIONAL PURPOSES ONLY. IT SHOULD NOT BE CONSIDERED LEGAL,

INVESTMENT, FINANCIAL, OR ANY OTHER TYPE OF ADVICE ON WHICH YOU SHOULD RELY.

YOU SHOULD CONSULT WITH AN APPROPRIATE PROFESSIONAL ADVISOR TO DETERMINE WHAT MAY BE BEST FOR YOUR INDIVIDUAL NEEDS.

©2015


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