Law Tips – Evidentiary Matters in Civil Cases

ICLEF Law Tips this week brings you a few pointers from one of our faculty concerning Evidentiary Matters in Civil Cases.  The CLE from which this article is drawn is “Developing Skills In The Practice of Law,” an important annual ICLEF program geared toward newer lawyers. This 2011 practice skills seminar included a presentation by J. Todd Spurgeon of New Albany entitled “Discovery Strategies & Evidentiary Matters Pertaining to Civil Cases,” which he has allowed us to use once again in this format.  Todd is a partner with Kightlinger & Gray in New Albany, Indiana and concentrates his practice in insurance defense litigation, products liability and administrative law.

Selecting portions of Todd’s CLE materials to include here wasn’t easy as it is all relevant and provides important insight from his experienced standpoint.  So, I had to just do it.  Hopefully, these brief excerpts will serve as pointers for those relatively new to the Rules of Evidence, as well as a healthy review for the closer-to-gray-haired readers.  Here are two segments from within the portion of Mr. Spurgeon’s materials that he calls “Evidentiary Basics at Warp Speed.”

Article IV – Relevancy and Its Limits

…This section of the rules is where creative thinking comes in handily. If something is not admissible for one purpose, it may be admissible for another.

Rule 403 – Prejudice, Undue Delay, Confusion

Rule 403 attempts to level the playing field. It dictates that even relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Again any probative value must be substantially outweighed, and this is sometimes a high hurdle. As Derrick Wilson says, “Any good lawyer wants evidence which is prejudicial and highly inflammatory because that is the kind of evidence that gets the jury to resolve cases in your favor.” An example of evidence covered under 403 would be whether someone was driving drunk when they injured someone. If there is no punitive damages claim, and liability was admitted, then whether or not the defendant was drinking may be unfairly prejudicial to the defendant.

Rule 403 is almost always used in conjunction with other rules of evidence when making objections to the admissibility of certain items, usually as a catch-all objection.

Rules 404-413 – Guidelines for Specific Types of Evidence.

These rules give guidelines for specific types of evidence that are susceptible to misuse if not controlled by the court. These rules are used quite often in my practice and my standard motion in limine includes many of them. Most of the rules are self explanatory. However, Rule 413 has become a hot button as of late in the personal injury arena. In order to recover for medical expenses, a plaintiff must show that expense was reasonable and that the treatment was necessary. Rule 413 does not specifically mention medical treatment and necessity. However, in Sibbing v. Cave, 922 N.E.2d 594 (Ind. 2010), the Indiana Supreme Court essentially added in those words in practice. The court severely restricted a defendant’s ability to contest whether the medical treatment claimed was necessary.

Article IX –  Authentication

Although generally used less than other articles of the rules of evidence, Article IX has some important applications. The general rule for authentication is that there must be evidence sufficient to support a finding that the matter in question is what its proponent claims. For example, medical records, phone records, and corporate records need to be authenticated before they are admissible. Also, photos, surveillance video, audio recordings, and other similar items must also be authenticated under this article.

Most civil trials will involve photos of some sort. The rule to remember with photos is merely that the witness must establish that the photograph is a true and accurate representation of what it is meant to portray. Simply asking the witness a question such as “Is Exhibit A a true and accurate depiction of the intersection as it appeared on that day?” is generally sufficient.

With respect to audio and video recordings, generally speaking, there has to be an identification of the voices; the evidence must be admissible on its own merits; and the tape recording must be reasonably clear for the trier of fact to be able to understand the substance of the conversation. Brief portions that become inaudible due to static interference and background noise, but which do not affect the underlying testimony may not be sufficient to exclude the evidence. See, Kidd v. State, 738 N.E.2d 1039 (Ind. 2000).

Authentication will become increasingly important in the age of emails, text messages, and computer imaging. Authentication is crucial due to the relative ease with which these types of records can be created, altered, or manipulated. See, Zitter, Authentication of Electronically Stored Evidence, Including Text Messages and E-mail, 34 ALR 6th 253 (2008).

The Indiana Court of Appeals has held that text messages stored in a phone must be separately authenticated if they are to be offered for a testimonial purpose. Even though we have determined that a text message stored in a cellular telephone is intrinsic to the telephone, a proponent may offer the substance of the text message for an evidentiary purpose unique from the purpose served by the telephone itself. Rather, in such cases, the text message must be separately authenticated pursuant to Indiana Evidence Rule 901(a). Hape v. State 903 N.E.2d 977, 990-991 (Ind. Ct. App. 2009). Hape also includes an example of how to authenticate a cell phone itself. A case which dealt with computer data authentication is Bone v. State, 771 N.E.2d 710 (Ind.Ct.App.2002).


The above advice provides examples of the valuable information contained in Todd Spurgeon’s CLE presentation on discovery and evidence in civil cases.  A flavor of additional topics  on which he shared his expertise is hearsay, privileges and expert testimony in the evidentiary area and interrogatories, sanctions and subpoenas in the discovery area.  The “Developing Skills In The Practice of Law” CLE includes a plethora of information from knowledgeable attorneys and jurists; everything from appellate legal writing and ADR to Tax Law and Business Transactions.  If you have interest in the seminar manual that includes the full content of Mr. Spurgeon’s advice as well as the 18 additional faculty, please Click Here.

Thank you for visiting ICLEF’s Law Tips blog.  We wish you success in your evidence and discovery matters.  If you have comments or suggestions on topics or anything ICLEF-related, please let us hear from you at

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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