THE STRATEGIC USE OF EVIDENCE - PowerPoint Presentation

Slide1

THE STRATEGIC USE OF EVIDENCE

MARK

A.

LOWE

December 13, 2016Slide2

I. Introduction

Afraid to go to trial: don’t be: be prepared to make appropriate objections but do not overuse them/need to pick your best points on which you are focused and let minor matters simply pass by/jury or judge will be thankful and reward you for that strategy/because a lot of times their perception of the lawyer determines the outcome of the caseSlide3

A. Evidence is not magical - but simply PROOF; must be prepared to lay the proper foundation for introduction

of evidence

B. We have been preparing to be advocates (attorneys) and referees/umpires (judges) all of our lives

1. Winning

or losing arguments as children, and adults

2.

Deciding

arguments between people

a. Especially

children as parents when one is telling on another

C. The basic idea is to gather and present the evidence to convince a person or persons that your position is correct

 Slide4

D. Similar to the laws of evidence is the law of procedure

1. Procedure opens the door for evidence

2. Evidence proves or disproves the

caseSlide5

II. Principal types of evidence

A. Human witnesses

1. Many times not as good as physical evidence

Generally, physical facts do not lie/people sometimes do or at least modify the actual facts

B. Physical/corporeal evidence

1. Documents (letters, notes, medical records, court records, tax returns, W-2s, etc.)

2. Other physical items (photographs, audio/video tapes, etc.)Slide6

Query: What would impress you if you were the judge?

1. Generally easier to figure out what a judge would do rather than a jury

2. Have had bench trial where judge said, you can try this case if you want but this is how I am going to rule and how much I will award/of course, you can still appealSlide7

III.

Gathering evidence with a plan in mind

A. Primary principle to keep in mind is whether the proposed evidence is relevant or not

Louisiana Code of Evidence articles 401 and 402

1) Relevant evidence is any evidence which has the tendency to make

any consequential

fact more probable or less probable.

Obviously, evidence which is not relevant is inadmissibleSlide8

B

. Determine what you are seeking to prove or disprove

1. Determine the elements/essential issues of the case

Focus on your strong points of evidence

But consider how best to minimize your opponents’ strong points/do not neglect those points because I can assure you that your opponent will notSlide9

Examples:

a. Routine rules issues

b. Custody disputes

c. Community property partitionsSlide10

1. Who has the burden of proof?

Of extreme importance

Article 302 of the Louisiana Code of EvidenceSlide11

The following definitions apply under this Chapter

:

The

“burden of persuasion” is the burden of a party to establish a requisite degree of belief in the mind of the trier of fact as to the existence or nonexistence of a fact. Depending on the circumstances, the degree of belief may be by a preponderance of the evidence, by clear and convincing evidence, or as otherwise required by law

.

(

2) A “predicate fact” is a fact or group of facts which must be established for a party to be entitled to the benefits of a presumption.Slide12

A

“presumption” is an inference created by legislation that the trier of fact must draw if it finds the existence of the predicate fact unless the trier of fact is persuaded by evidence of the nonexistence of the fact to be inferred. As used herein, it does not include a particular usage of the term “presumption” where the content, context, or history of the statute indicates an intention merely to authorize but not to require the trier of fact to draw an inference

.

(

4) An “inference” is a conclusion that an evidentiary fact exists based on the establishment of a predicate fact.Slide13

2. Chart a plan

3. Chart the plan with options and modifications

4. Do not underestimate or overestimate an opponentSlide14

C. From client

1. Many times clients lie

Ask

them to be objective

D. Pleadings

1

. The box or standard pleadings

But can be enlarged

E. Formal discovery

1

. Interrogatories

a

. Canned questions are often used

b

. But try to craft case specific questions to extract useful evidenceSlide15

c. Please change names on word processor

  1. Example: implementation

plan

2. I like to keep a notebook or computer file on important thoughts that “pop up” in my mind for future use at trial – otherwise you may forget them by the time of trial

3

. Gather all applicable contracts and analyze them – this will determine how you approach the case and frame the issues

4

. Promptly object to opponents’ Interrogatories and RFPs even if you don’t answer or respond before deadline - There are a couple of discreet state court decisions which suggest you may waive the objections if not timely madeSlide16

2. Requests for production of documents (

LCCP

articles 1461,

et seq

.)

a. From opposing party directly

b. From third persons through use of subpoenas

  1) for production of documents 2) for entry onto land (

LCCP

art. 1463) 3) physical or mental examinations (

CCP

article 1464) 4) depositions (

LCCP

articles 1434,

et seq

.)Slide17

IV. Beginning the case

Want to let Plaintiff know in writing that you desire to depose his client as soon as you have received documents from executed authorization forms/keep track of documents received and follow-up

Plaintiff’s counsel may want to inspect premises and depose your key witnesses immediately

c. Need to talk to your witnesses and ask other parties whether you can interview their witnesses before taking Plaintiff’s deposition/gather as much information as possible/RCAs/logs/photographs/statements/interviewsSlide18

d

. Adverse Witness Interviews; make decisions after Plaintiff’s deposition/adjust as you go; inspect accident scene ASAP

e. Scheduling other fact witness depositions

How much does Plaintiff really want for his case

Is it more economical to settle for small amount before conducting usual, expensive discovery (clients view most cases from economic standpoint)Slide19

Is there a shot at

MSJ

/analyze what you need to file successful Motion/make sure you have all the information you need/don’t want court to find that

MSJ

is premature

Who should you depose?

Make sure you know exactly what you want to “lock down” with each witness/also, you want to eliminate “surprises” at trial

Don’t be afraid to ask the “hard questions” as you need to know before trial

Keep medical chronology updated/have responses to all authorization forms charted so you can follow-up as necessary

Immediately send copies to all counsel without delay; state in transmittal letter that you may use as exhibit at trialSlide20

Medical records, employment records,

SSA

, tax returns, military records, education, civil/criminal records, surveillance, IME,

FCE

, vocational rehabilitation, economist

a. Deposition of an opposing party can be used in court:

LCCP

art. 1450.

When a good job was done, it may not be able to be repeated at trial.

2) If so, know this:

Article 1450 of the Louisiana Code of Civil Procedure provides as follows:

"A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof in accordance with any of the following provisions:Slide21

(1)

Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness.

The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Louisiana Code of Civil Procedure article 1442 or 1448 to testify on behalf of a public or private corporation, partnership, or association, or governmental agency which is a party may be used by an adverse party for any purpose.Slide22

(3) The

deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds

:

(a) That the witness is unavailable;

That the witness resides at a distance greater than one hundred miles from the place of the trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.Slide23

If only part of a deposition is offered in evidence by a party, an adverse party may require the adverse party to introduce any other part which, in fairness, should be considered with the part introduced, and any party may introduce any other parts

.

Conflicts

between

LCCP

art. 1450 and Louisiana Code of Evidence Article 804, regarding the use of depositions, shall be resolved by the court in its discretion

.

It

has long been the law that a deposition is admissible when offered by a party opponent. See, for example,

Broussard v. State Farm

Mut

. Auto Ins. Co

., 188

So.2d

111, 119 (

La.App

. 1966).Slide24

Article 801 of the Louisiana Evidence Code provides a definition of hearsay. That article states, in pertinent part, as follows:

"The following definitions apply under this Chapter:

A. Statement

. A "statement" is:

(1) An oral or written assertion; or

Nonverbal conduct of a person, if it is intended by him as an assertion.

Declarant.

A "declarant" is a person who makes a statement.Slide25

Hearsay

.

"Hearsay" is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.

D.

Statements which are not hearsay.

A statement is not hearsay if:Slide26

(2)

Personal, adoptive, and authorized admissions.

The statement is offered against a party and is:

(a) His own statement, in either his individual or a representative capacity;

(b) A statement of which he has manifested his adoption or belief in its truth; or

A statement by a person authorized by him to make a statement concerning the subject.“

Thus, when a statement is offered against a party and is his own statement, which a deposition most certainly is, such statement is not hearsay and would be admissible whether it is offered in the form of a deposition, handwritten statement or oral statement. The deposition does not need any other testimony for its introduction, nor does it need any foundation as a handwritten statement or oral statement would necessitate.Slide27

b. What if someone claims it is not the original deposition but only a copy?

"Contents of writings, recordings, or photographs may be proved by the testimony or, in a civil case, deposition of the party against whom offered or by his written admission, without accounting for the nonproduction of the original." Louisiana Code of Evidence art. 1007.

c. What if you are on the other side?

"Subject to the provisions of La.

R.S

. 13:3823 and

LCCP

art. 1455, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying."

LCCP

art. 1451. Slide28

4. Requests for admissions

LCCP

art. 1472

b. Understand the effective use of this evidentiary procedure and promptly respond to your opponents’

RFAs

or they will be admitted.Slide29

F. Internet sources (texts, e-mail, Facebook, Messenger,

Linkedin

, etc.)

1. Parties

2. Witnesses

Jurors/Can get potentially good information on jury pool from social media/Also, if in another jurisdiction, may want to consult a local business person who can give insight on potential jurors

 G. Best way to get witness testimony and exhibits into evidence

Stipulations

 a. Must be very carefully

wordedSlide30

IV.

How much to reveal?

A. Hold back evidence for trial?

1. Favorable for your client

2. Unfavorable for the opposition

3. Most good evidence cases are settled

4. Need good reason to go to trial/settlement demand too high/precedential issues/client simply refusesSlide31

V. Presenting/opposing evidence-(depends on the case)

A. Memorize code of evidence

1. Somewhat difficult; and

2. Not generally necessary

But you need to know the standard ones

1. Example: Adverse presumption rule where witness listed does not appear at trial: see,

Francis v. Francis

, 2007-1622 (La. App. 3 Cir. 4/30/08), 981 So.

2d

920, 922-23

"This court has recognized that the adverse presumption rule will only be applied where the party against whom it is invoked has the burden of proof and has control over the witness.

Randolph v. Alexandria Civil Serv.

Comm'n

,

04-1620 (

La.App

. 3 Cir. 4/6/05), 899

So.2d

857,

writ denied,

05-1172 (

La.11

/28/05), 916

So.2d

145." Slide32

VI. Routine rules issues

Hearsay (Louisiana Code of Evidence art. 801)

a. Exceptions (Louisiana Code of Evidence arts. 803 & 804)

Business records exception

2. Judicial notice (Louisiana Code of Evidence arts. 201 and 202)

3. Kelly Blue Book values

1.

Neloms

v. Empire Fire & Marine Ins. Co.,

37,786 (La. App. 2 Cir. 10/16/03), 859 So.

2d

225, 229Slide33

VII. Basic Methodology

1. Example: child custody case

a. Basically, Louisiana Civil Code art. 134 contains a good list

1) Consider how own client fares

a) Gather facts in support of client

b) Through discovery, find out contentions of opposition

Usually better through a deposition (more spontaneousSlide34

2) Analyze opposing party potential position

a) Through discovery, determine whether opposition admits or denies

1. Again, usually better taking a deposition so you can confront and react to the deponent

2. In a column, list all of the facts needed to be proven

3. Correspondingly, in a second column, list the person, document or other physical item that you will utilize to present each fact

 Slide35

Look

through the Louisiana Code of Evidence, or other sources which are generally contained in Title 13 of the Louisiana Revised Statutes, and sometimes in

caselaw

, and list the particular article, statute or jurisprudential precedent to support admission of the facts that you want to present.

5. With regard to the case of the opposition, do the exact same thing.

a. If you want to prevent the admission of certain facts, you will at least know what was necessary and, if the opposition does not comply, then you already have the basis for any objectionSlide36

VIII. Community property disputes

1. Generally, a determination of assets, liabilities and reimbursements

2. Normally agreed upon in pretrial meetings

a. Mandatory meetings required in this district regarding community property.

3. When not done so

a. Watch out for hearsay objections

b. Consider requests for

admissionsSlide37

IX

.

Other things to consider

1. Know the judge

Until then, follow the rules very strictly

2. Pre-trial Conferences

a. Many statements of fact are presented which cannot later be proven

1) Once the toothpaste is out of the tube, it is hard to put it back in

b. Get an understanding of major issues at the beginning of the pre-trial conferenceSlide38

3.

Preparing for Trial

Send copies of all your witness depositions to them (should be done upon receipt, then send letter closer to trial reminding them to review)

Supplemental deposition of Plaintiff

Schedule meetings with witnesses well in advance of depositions/trial

Converse, at least by telephone, with all expert witnesses

Reread and outline all depositions

Prepare Trial Notebook

If you didn’t depose witness, think it through and prepare outline/be careful

You will not make your case with opponents’ experts/get what you can and get out

Motions in

Limine

(to exclude harmful evidence)

Motions to Strike certain claims and witnesses

Jury Charges (not just standard)Slide39

Federal

cases in Federal Court

State cases in State Court

Jury Interrogatories

Voir

Dire (ask questions specific to your case/is there really any interest in these cases)

Jury Selection (know local attorney/layperson to help) – Get jury list in advance and have someone analyze

Verdict Form

Bench Books

Final Trial Witness ListSlide40

Opening Statement

Concise analysis of what you will prove (make sure you can prove those facts) (tell jury you will remind them of what evidence you provided in closing argument)

Urge jurors to listen to both sides of case before making up their mind

Trial

Be prepared

Use trial notebook

Be precise on cross-examination

Generally don’t ask questions to which you don’t know the answer

Look to jury after important testimony to make a pointSlide41

Closing

Argument

Urge the best points of your case

Acknowledge Plaintiff’s points but only if you can successfully counterSlide42

4. At trial

a. Do not interrupt

b. Talk to the judge, not your opponent, except in rare circumstances

c. Be prepared to provide authoritySlide43

X. Common evidentiary issues/objections

1. Leading questions

2. Hearsay

a. "Everyone knows"

Plan in advance

3. Laying a Proper Foundation

1. Legal Rules

Since the witness is often hostile to the cross-examiner, the law permits leading questions on cross-examination. While leading questions are permissible on cross, argumentative questions are objectionable. Slide44

4. Other considerations

Motions in

Limine

The following are the elements of a motion in

limine

to exclude evidence:

The opponent states his or her intent to move in

limine

to exclude certain evidence.

The opponent has reason to believe that the proponent possesses the evidence and will offer the evidence at trial.

The opponent briefly states the ground on which the evidence is inadmissible.

The opponent must state the ground with the same specificity with which he or she would make a trial objection.

The opponent explains why an ordinary trial objection would be inadequate protection for the opponent.

The opponent presents the legal argument in favor of the motion.

After the proponent’s response, the judge rules.Slide45

2) If not granted, then you must object at trial

1. The Doctrine

3) Motions to Strike at Trial

The Doctrine

Like an objection, a motion to strike must be courteous, timely, and specific. The general requirements for objections apply to motions to strike If the witness’s answer is improper, the opponent should move to strike immediately after the answer and before the next question. If the judge grants the motion, the opponent should then request a curative instruction to disregard; the judge informs the jury that the answer was improper and orders the jurors to disregard the answer.Slide46

2. Elements of a Motion to Strike

The elements of a motion to strike are roughly the same as those of an objection:

The opponent addresses the judge.

The opponent indicates that he or she is moving to strike.

The opponent specifies what he or she is moving to strike.

3. The opponent specifies the legal grounds for the motion.

4. If the judge grants the motion, then the opponent requests a curative instruction to disregard.

If the improper remark was highly inflammatory, then the opponent should seriously consider moving for a mistrial.Slide47

4) Lay Opinion Testimony

Federal Rule of Evidence art. 701 governs the admissibility of lay opinion testimony. The Rule reads, as follows: “if the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.” In practice, the courts have construed the Rule as authorizing two types of lay opinion testimony: (1) collective fact or shorthand rendition opinions; and (2) skilled lay observer opinions.

5) Expert Opinion Testimony

The Federal Rules of Evidence permit the admission of expert opinion testimony in addition to lay opinion testimony. Federal Rule of Evidence art. 702 provides that: “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.”Slide48

5. Assuming facts not in evidence

  Practice pointer: When you are winning the argument be quiet

6. Other considerations

1.

Daubert

Motions

Daubert

v. Merrell Dow Pharmaceuticals, Inc.

,

509 U.S. 579 (1993)

The United States Supreme Court charged trial judges with the responsibility to act as gatekeepers to exclude unreliable expert testimony

Whether the expert’s technique or theory can be or has been tested – that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability

Whether the technique or theory has been subject to peer review and publicationSlide49

The known or potential rate of error of the technique or theory when applied

The existence and maintenance of standards and controls

Whether the technique or theory has been generally accepted in the scientific communitySlide50

XI. Appeals

1. Preserve objections

Louisiana Code of Evidence art. 103

2. Watch out for jokes and unnecessary comments

Will not look professional

X. Sometimes all the evidence law does not help

XI. Professional and ethical issues

1. Candor toward the court

a. Do not lie

b. Disclose controlling adverse law

c. Do not offer evidence that you know to be falseSlide51

Disclose

if client intends to engage, is engaged, has engaged in criminal

or

fraudulent

conduct

Rule

3.3 of the Rules of Professional Conduct

2. Relationship with opposing counsel

a. Be upfront

b. Do not lie

Remember that both of you have jobs to do

Obligation

of fairness to opposing counsel and

party

Rule

3.4 of the Rules of Professional ConductSlide52

3

. Explain to clients about what being an "aggressive" lawyer is all about

a. Not rude

4. Morality

a. Taking advantage of opposing counsel or a partySlide53

XII. What if you fail

May lose client

May lose respect of peers and judiciary

Hey, but remember, there’s always tomorrowSlide54

Mark A. Lowe

(337) 232-7424

malowe@liskow.com