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Strategies for Finding Preserving and Using Evidence to Support Your Case
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  • 1. EVIDENCE: Strategies for Finding, Preserving and Using Evidence to Support Your Case John N. Zarian Zarian Midgley & Johnson, LLC April 29, 2008 Boise, Idaho
  • 2. III. WORKING WITH EXPERT WITNESSES A. Expert Witness Checklist B. Finding the Right Expert C. Experts as Consultants and/or Witnesses D. Protecting Work Product E. The Expert Witness Deposition
  • 3. III. WORKING WITH EXPERT WITNESSES F. Scientific Guesswork as Fact G. Motion in Limine to Exclude Expert Testimony H. How to Qualify the Expert I. How to Introduce Expert Testimony J. Key Issues in Cross-Examination
  • 4. Expert Witness Checklist  Identify needs  Your preparation  Initial interview  Personal meeting  Pleadings  Work product  Depositions  Trial preparation
  • 5. Finding the Right Expert  Expert in a field of knowledge vs. expert in communication  Confirm experience  Check availability  Check conflicts  Importance of a personal interview
  • 6. Experts as Consultants and/or Witnesses  Different uses of each  Different skill sets  Disclosure obligations  Work product protection  Avoid wearing “two hats”  Manage communication
  • 7. Protecting Work Product  The rules protect work product. See Fed. R. Civ. P. 26(b)(3) (only upon a showing of substantial need).  However, the rules appear to require that experts disclose all information considered. See Fed. R. Civ. P. 26(a)(2)(B) (required to disclose “data or other information” considered in forming opinions); see Fidelity Nat’l Title Ins. Co. of New York v. Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 751 (7th Cir. 2005) (it follows that experts must retain all draft reports).  Discovery disputes arise regarding tension between work product protection and disclosure requirements.
  • 8. Protecting Work Product  Two lines of cases   Rule 26 creates “bright line” rule requiring disclosure of all information provided to testifying experts, including attorney mental impressions. See, e.g., In re Pioneer Hi-Bred Int’l, Inc., 238 F.3d 1370, 1375 (Fed. Cir. 2001). Attorney work-product not discoverable just because it has been shared with a testifying expert. See, e.g., Haworth Inc. v. Herman Miller, Inc., 162 F.R.D. 289 (W.D. Mich. 1995).  Scope of waiver  May extend to material unrelated to expert’s expected testimony. See Construction Industry Services Corp. v. Hanover Ins. Co., 206 F.R.D. 43 (E.D.N.Y. 2002); B.C.F. Oil Refining, Inc., 171 F.R.D. 57, 61, 63-67 (S.D.N.Y.).
  • 9. Protecting Work Product  Problems in cases where the line between consulting and testifying experts is blurred.  Consultant who becomes a testifying expert. See, e.g., W.R. Grace & Co.-Conn. v. Zotos International, Inc., 2000 U.S. Dist. LEXIS 32113 (W.D.N.Y. Nov. 2, 2000) (same expert on two sets of issues) (ordering broad disclosure).  Testifying expert who becomes non-testifying expert. See CP Kelco U.S., Inc. v. Pharmacia Corp., 213 F.R.D. 176, 179 (D. Del. 2003) (ordered to produce documents).  Testifying expert “withdrawn.” See House v. Combined Ins. Co. of America, 168 F.R.D. 236 (N.D. Iowa 1996) (plaintiff allowed to depose “withdrawn” psychiatric expert).
  • 10. The Expert Witness Deposition  To depose or not to depose (changed after Daubert?)  Preparing to take deposition  Involving your own expert?  Preparing your own expert for a deposition  Manage communications with your expert  Learn the technical issues
  • 11. The Expert Witness Deposition  Generic Deposition Checklist Personal information  Education  Licenses and certifications  Employment history  Publication history  Career as expert witness 
  • 12. The Expert Witness Deposition  Generic Deposition Checklist (cont’d)  Expert’s retention    Dates, contact, compensation Scope of assignment, status? Expert’s opinions    What opinions has he/she formed? Definitions, basis, data, theories, methods What is he/she not opinion on?
  • 13. The Expert Witness Deposition  Preparing your own expert for deposition Preparation common to all witnesses  Preparation unique to expected questions      Attacks on qualifications Review basis of the opinion Hypotheticals or changed facts Attempts to get agreement with key premises
  • 14. Scientific Guesswork as Fact  The Daubert trilogy of cases (1993-99)  Amendments to the Fed’l Rules (2000)  Increasing role of “technical” experts  “Gatekeeping” functions and “junk science” problems
  • 15. “Gatekeeping” Obligations of the Courts  Old test was relevance combined with the Frye test (“generally accepted” in relevant scientific community). See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).  Since Daubert, federal courts must now act as “gatekeepers” to exclude “junk science” that does not meet certain minimum standards, by making a preliminary determination that the expert’s testimony is reliable. Mukhtar v. California State University, Hayward, 299 F.3d 1053, 1063 (9th Cir. 2002).  The Idaho Supreme Court has expressly rejected the Frye test, but has not expressly adopted Daubert. See State v. Crea, 119 Idaho 352 (1991); State v. Konechny, 124 Idaho 410 (2000); State v. Parkinson, 128 Idaho 29 (1996); see also Special Report, BNA’s Toxics Law Reporter (April 18, 2002) (describing Idaho approach as “similar to Daubert”).
  • 16. Expert Qualifications (Rule 702)  Experts must be qualified as experts by virtue of their specialized “knowledge, skill, experience, training, or education.” See F.R.E. 702; I.R.E. 702.  Any one or more of these bases is sufficient.  Expert need not be unbiased, but must be something more than a “hired gun.”  Proponent of an expert’s testimony must lay foundational evidence showing that the individual is qualified as an expert on the topic of testimony.
  • 17. Threshold Requirements  Expert testimony must be reliable. The trial judge must make a preliminary assessment of whether the reasoning and methodology underlying the proferred testimony is scientifically valid. See F.R.E. 104(a); Daubert, 509 U.S. at 589 (factors).  Relevance and “fit.” Testimony must be relevant, as well as reliable, and reasoning or methodology must be properly applied to the facts in issue. The testimony must connect to the facts.  Helpful to the trier of fact. The proposed expert witness must have knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issues. Fed. R. Evid. 702.  Rule 403. Evidence, even if relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
  • 18. Establishing Proper Bases for Expert’s Methodologies/Theories (Rule 703)  The facts or data upon which an expert bases an opinion or inference may be those “perceived or made known to the expert at or before the hearing.” If the facts are or data are of the type “reasonably relied upon” by experts in the field, the expert witness may rely on them even if they are not admissible. If the underlying facts or data are not acceptable, the testimony is inadmissible.
  • 19. Motion in Limine to Exclude Expert Testimony?  Rule 16 Conferences, Status     Conferences and Case Management Orders Motions in Limine Motions for Summary Judgment Responding to the Daubert Motion Daubert Hearings
  • 20. How to Introduce Expert Testimony  In general, present the expert as a knowledgeable, reliable person who explains the technical aspects of the case in an interesting, understandable way and whose opinions flow logically from the facts.  With lay witnesses, a “story” model (generally chronological) is often imposed.  With expert witnesses, the organization is often by subject matter.
  • 21. How to Introduce Expert Testimony  Sample outline of examination Qualifications  Educate the jury  Establish connection with the case  Review the basis for the opinion(s)  State the opinion(s)  Provide a rationale 
  • 22. How to Introduce Expert Testimony  Provide “guideposts” for the jury  Q: Dr. Jones, I would like to begin by permitting the jury to learn something about your professional background. Would you please start by telling us where you went to medical school?  Q: Now, Dr. Jones, I want to ask you some questions, in general terms, about the diagnosis and treatment of patients who complain of chest pain. Please tell us first …  Q: Dr. Jones, I am now going to ask you for your opinions on a number of matters relating to the treatment of Mr. Smith. Please tell us first what your opinion is with respect to …
  • 23. Key Issues in Cross-Examination  Limitations in qualifications/experience  Limitations in confidence in own      opinions or unbelievable expressions of confidence (undermine credibility) Limitations in preparation Elicit damaging admissions? Elicit assumptions that can be disproved or questioned Elicit damaging hypothetical opinions? Bring out admissions re: qualifications or opinions of your own expert
  • 24. III. WORKING WITH EXPERT WITNESSES CONCLUSION
  • 25. VI. PRESENTATION OF EVIDENCE – HOW TO IMPACT THE JURY A. How to Get Your Evidence and Expert Testimony Admitted Into Evidence B. Clarity to the Jury C. Trial Techniques C. Media Brings the World to the Jury D. Damages & Collateral Source
  • 26. Evidence Ying and Yang  Earth and heaven, opposing and at the same time complementary phenomena  On the one hand, we must satisfy the requisites to get our evidence admitted and satisfy elements of our claims  On the other hand, our overriding consideration is to persuade the trier of fact
  • 27. How to Get Your Evidence and Expert Testimony Admitted Into Court  Focused discovery  Focus for trial  Evidence road-map  Laying a foundation  Science vs. art  Eyes on big picture
  • 28. Clarity and Persuasion of Jury
  • 29. Trial Techniques Basic Considerations  A jury trial is about persuasion  Credibility really is king (or queen)  Understand the mind of the juror  Biases are as important as evidence  Develop effective case themes  The focus should be on story telling  Who or what can tell your story?  Case analysis guided by foregoing
  • 30. Ying: Key Substantive Considerations  What are the elements of proof?  What is the key evidence in the case?  How do the various parts fit together? Opening statement  Evidence and proof  Closing argument  Jury instructions  Verdict form 
  • 31. Yang: Non-Substantive Considerations  Control the “atmospherics”  Connecting with the jury  Jury management during trial  Your credibility as a lawyer  Style considerations Dress  Reactions  Courthouse conduct 
  • 32. Focusing Your Case for Trial: The Case Strategy Process (ying)  Identify case strengths and concerns/problems  Focus on key jury decisions  Identify story elements (i.e., theory of the case)  Consider the evidence to support your story  Develop case themes  Develop labels/language  Create a 10-point story  Write a “silver bullet”
  • 33. Basic Persuasion Strategies (yang?)  Manage everything before the jury  Use cues (visual, verbal, etc.)  Use repetition, trilogies, etc.  Use good storytelling techniques  Persuade through eyes/ears/minds  Confidence is persuasive  Avoid large, complex, technical words  Respect the jury’s capacities  Stay focused on broad themes
  • 34. The Story Model  Jurors sort information through their narrative schemes / stories  Ambiguous information is interpreted as consistent (narrative reasoning)  90% of jurors decide on a story of what happened before they enter the jury room
  • 35. PRE-TRIAL CONSIDERATIONS e.g., Documents  Focus on most important documents  Consider strategies to make documents understandable  Consistent exhibit numbers  At trial, understand the difference between identification, admitting a document into evidence, and “publishing” document to jury
  • 36. TRIAL CONSIDERATIONS  Direct Examination  Foundation and Exhibits  Objections at Trial
  • 37. Direct Examination: Introduction  Trial is generally won during your case  Key opportunity to tell your “story”  Prepare your witnesses!  Focus jury’s attention on the witness  Listen to the answers, pay attention  Put yourself in the jury’s shoes
  • 38. Direct Examination: Elements and Structure  Keep it simple  Organize logically  Use introductory/transition questions    “Officer, you arrested the defendant?” “Let’s turn now to the day you signed the contract” “I’m going to ask you questions now about what happened during the afternoon of June 15”  Introduce witness and develop background    Who is she? Why is she here? Why should I believe her?
  • 39. Direct Examination: Elements (cont.)  Set the scene and recreate action  Cover preliminary material first Do not interrupt action testimony Avoid unnecessary detail or technical information On the other hand, details lend credibility Help the jury “see” the action through witness’ eyes Using present tense to create drama  Create sensory images, use pacing         “How long have you been employed?” vs. “How many years have you been a bricklayer?” “Just before the impact, what were you doing?” What did you hear? See? Feel?
  • 40. Direct Examination: Elements (cont.)  Have the witness explain where appropriate Put yourself in the jury’s shoes  Volunteer weaknesses as necessary  Bury in the middle of examination  Use exhibits to highlight and summarize facts   Don’t let the exhibits distract from the examination  Lay foundation for key evidence, think about how to get key documents into evidence
  • 41. Direct Examination: Additional tips and techniques  Start strong and end strong  Always try to end with a clincher  Use pacing and body movement  Repeat important points  Ethical considerations  E.g., clearly inadmissible evidence
  • 42. Foundation and Exhibits: Introduction  Pre-trial procedure and stipulations  Laying a foundation for exhibits Qualifying witness must be competent  Exhibit must be relevant, reliable  Exhibit must be authenticated   Consider issues raised by tangible objects, photographs, etc.  Drawings by witness in court
  • 43. Foundation and Exhibits: Procedure  Have the exhibit marked for i.d.  Show the exhibit to opposing counsel  Ask permission to approach witness  Lay foundation for exhibit  Offer exhibit into evidence  Have the exhibit marked in evidence  Obtain permission to show or publish the exhibit to the jury
  • 44. Foundation and Exhibits: Additional Considerations  Develop a visual strategy  May need to be tailored to case  Prepare courtroom visual aids / exhibits  Introduce exhibits during your case  When to use exhibits   When exhibit is first mentioned At the end of the direct examination  How to use exhibits (know the court)  Demonstrative exhibits in deliberations?
  • 45. Objections at Trial  Technical vs. artistry of trial advocacy  Anticipation by motions in limine  Preservation of record on appeal  Not every objection should be made  Consider your theory of the case  State your objection carefully
  • 46. When to Object  The Decision to Object Recognition  Formulation  Evaluation   Reasons not to Object Juror’s reactions  Judge’s reaction  Opponent’s reaction 
  • 47. How to Make an Objection  Must object as soon as grounds apparent, may need       to interrupt (or use motion to strike) Generally, stand and state grounds “Objection, Your Honor, relevance.” Consider adding a descriptive tag line However, no speaking objections Consider use of “same objection(s)” Try to avoid “standing objection” to a particular “line of questioning” … if necessary, state objection clearly.
  • 48. Dealing with Objections  May request argument / ask to be heard  Be specific in responding to objection (e.g., relevance)  Consider suggesting limited admissibility  Consider making a “conditional offer” by promising to “tie it up      later” In advance of trial, prepare for objections and evaluate admissibility of all key evidence Overruled? make sure evidence actually gets in Sustained? Protect the record (offer of proof?) If an objection is sustained, keep trying if important But avoid fighting over objections if can be avoided
  • 49. Short List of Common Objections to Form of Question  Leading  Compound  Vague  Argumentative  Calls for a narrative  Asked and answered (cumulative)  Assumes facts not in evidence  Non-responsive
  • 50. Short List of Substantive Objections  Hearsay (FRE 801)  Irrelevant (FRE 401, 402)  Unfair Prejudice (FRE 403)  Improper Character Evidence (FRE 404, 608, 609)  Lack of Personal Knowledge (FRE 602)  Improper Lay Opinion (FRE 701)  Speculation or Conjecture (e.g., hypotheticals)  Authenticity (often stipulated)  Lack of Foundation (see FRE 104)  Best Evidence (FRE 1001-1004)  Privilege (FRE 501)  Settlement Offers (FRE 408)
  • 51. Media Brings the World to the Jury  Tangible objects  “Blow-ups”  Photographs  Videotapes  Diagrams  Models  Maps  Drawings (avoid?)  Demonstrations (avoid?)  Graphics / animations
  • 52. Tangible objects  Exhibit is relevant  Can be uniquely identified visually or through other senses, or chain of custody established  Witness recognizes exhibit  Witness knows what the exhibit looked like on the relevant date  Exhibit is in same condition or substantially the same condition now as when the witness saw it on the relevant date
  • 53. “Blow-ups”  Use otherwise admissible exhibit  Highlight key provisions for jury  Use as demonstrative evidence
  • 54. Photographs & videotapes  Photograph is relevant  Witness is familiar with the scene portrayed in the photograph  Witness is familiar with the scene at the relevant date (and time, if important)  Photograph “fairly and accurately” shows the scene as it appeared on the relevant date
  • 55. Diagrams, Models & Maps  Exhibit is relevant  Witness is familiar with the scene portrayed by the diagram, model or map  Witness is familiar with the scene at the relevant date (and time, if important)  Diagram, model or map is “reasonably accurately” or to scale  Useful in helping witness explain his testimony to the jury (may be required)
  • 56. Graphics / animations  Exhibit is relevant  Data used by expert and put into computer program are accurate  Integrity of the data was maintained  Data accurately transferred into computer  Computer software program used to create animation is based on valid and accepted scientific methodology  Animation will help the jury understand or determine a fact in issue
  • 57. Evidence of Damages  Strategic considerations  Giving psychological anchors  Use of expert witnesses  Jury verdict considerations
  • 58. Collateral Source Rule  The collateral source rule bars the defendant from seeking to reduce the plaintiff’s recovery by introducing evidence of payments to the plaintiff from sources unrelated to the defendant. See Restatement (Second) of Torts sec. 920A.  Idaho and many other states have statutes modifying the effect of the Rule to personal injury actions. As of 2006, only 12 states retained the common law Rule. See Dyet v. McKinley, 139 Idaho 526, 81 P.3d 1236 (Id. 2003).
  • 59. VI. PRESENTATION OF EVIDENCE – HOW TO IMPACT THE JURY CONCLUSION