Law Tips: Practical Tips in the World of Evidence

Every good trial lawyer knows the Rules of Evidence inside and out….but the secrets to success are beyond knowing the rules.  One key pointed out by our guest author this week, Dina M. Cox, Lewis Wagner, Indianapolis, is to “plan ahead and be prepared.”  What preparation?  Drawing on her considerable trial experience, Dina digs thoroughly into the layers of handling evidence in her instructions presented during the CLE entitled Trial Tips and the Art of Legal Persuasion.  I am appreciative of her sharing a sample of her  practical tips with us on Law Tips.

Use Motions in Limine.
Motions in Limine may properly be used by a party not only to argue for the exclusion of evidence, but to support the admissibility of evidence. See, e.g. Hopper v. Carey, 716 N.E.2d 566, 570 (Ind. Ct. App. 1999).  The granting of a motion in limine is an adjunct of the inherent power of trial courts to admit and exclude evidence.  Id.

Think about Summarizing Voluminous Records.
Rule 1006 can be a very useful tool when dealing with voluminous writings, records, or photographs.  The Indiana Court of Appeals has specifically approved the use of a summary introduced under this rule of evidence.   Shively v. Shively, 680 N.E.2d 877 (Ind. Ct. App 1997). In Shively, the proponent of the exhibit sought to admit a summary of military pay records.  The actual records consisted of eighteen (18) pages of computer printouts.  The court considered the summary admissible, reasoning that: “Under Indiana Evidence Rules 1006, the contents of voluminous writings or other recordings which cannot be conveniently examined in court may be presented in the form of a chart, summary or calculation as long as the underlying documents are made available to the other party.”  Id. at 881.

Consider Preparing a Trial Brief.
There are times in the practice of law that one may be faced with a particularly thorny or contested evidentiary issue.  Preparing a trial brief will help both you and the Court to better understand the issues of law or fact in dispute.  An example of when this might be relevant is when dealing with the admissibility of medical records.  While medical records are usually admissible pursuant to Rule 803(6), Records of Regularly Conducted Business Activity, when they contain hearsay within hearsay they are not automatically admissible. Additionally, medical records containing medical opinions are also not automatically admissible. Therefore, this might be a situation where it would be helpful to submit a trial brief concerning the admissibility of medical records for the convenience of the parties and the Court.

Know When to Object and Be Ready for Your Adversary’s Objections.
Clarity and direction are foiled if your adversary can interrupt or even truncate your examination with successful objections. Novice trial lawyers need to master the rules of evidence so they instinctively avoid the traps they contain.

Do Not Forget to Lay a Proper Foundation.
The concept of foundation often eludes and frustrates the rookie lawyer. Witnesses are generally supposed to testify only to matters where they have direct knowledge or expert opinion, and so courts require that – before they testify to certain facts or opinions – there must be foundation laid to show that they have the requisite ability to observe or opine.  If your adversary makes a successful objection for lack of foundation, you must be flexible enough to leave your outline and lay the foundation. This might consist of a series of questions about ability to observe, like “Where were you standing in relation to the accident?” or “Was anything blocking your view?” or it might consist of a series of questions directed to shoring up an expert’s qualification, like “Have you covered this very issues in the classes you have taught? Or “How did you personally verify the number you used in making this calculation?” If you can’t think of anything else, ask the witness to answer yes or no to whether he knows what you want him to testify about, and then ask how he knows. Better yet, plan your examinations so you lay the necessary foundation for all testimony without any objections being made.

Hopefully, these reminders have provided you with valuable advice for use in preparing evidence. Dina Cox’s comprehensive presentation on “The Nuts And Bolts of Evidence” is a part of our CLE entitled Trial Tips and the Art of Legal PersuasionThis seminar is available as an Online / On Demand Seminar, Click Here for details.

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Our Law Tips faculty member:
Dina M. Cox is a trial lawyer with Lewis Wagner LLP, Indianapolis.  She focuses her practice on professional liability defense, drug and medical device/products liability defense, consumer class action defense, insurance coverage, and insurance bad faith defense litigation. At least 50% of Dina’s practice is devoted to defending lawyers, law firms, and other professional clients against claims of  malpractice.  Since 1995, Dina has also represented pharmaceutical companies and medical device manufacturers in mass tort litigation, multi-district litigation, and individual lawsuits.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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