THE STRATEGIC USE OF EVIDENCE

Transcription

1 THE STRATEGIC USE OF EVIDENCE MARK A. LOWE December 12, 2016 New Orleans Lafayette Houston 1

2 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 case New Orleans Lafayette Houston 2

3 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 New Orleans Lafayette Houston 3

4 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 case New Orleans Lafayette Houston 4

5 II. Principal types of evidence A. Human witnesses 1. Many times not as good as physical evidence 2. 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.) New Orleans Lafayette Houston 5

6 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 appeal New Orleans Lafayette Houston 6

7 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. 2) Obviously, evidence which is not relevant is inadmissible New Orleans Lafayette Houston 7

8 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 not New Orleans Lafayette Houston 8

9 Examples: a. Routine rules issues b. Custody disputes c. Community property partitions New Orleans Lafayette Houston 9

10 1. Who has the burden of proof? Of extreme importance Article 302 of the Louisiana Code of Evidence New Orleans Lafayette Houston 10

11 The following definitions apply under this Chapter: (1) 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. New Orleans Lafayette Houston 11

12 (3) 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. New Orleans Lafayette Houston 12

13 2. Chart a plan 3. Chart the plan with options and modifications 4. Do not underestimate or overestimate an opponent New Orleans Lafayette Houston 13

14 C. From client 1. Many times clients lie 2. Ask them to be objective D. Pleadings 1. The box or standard pleadings 2. 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 evidence New Orleans Lafayette Houston 14

15 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 made New Orleans Lafayette Houston 15

16 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.) New Orleans Lafayette Houston 16

17 IV. Beginning the case a. 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 b. 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/interviews New Orleans Lafayette Houston 17

18 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) New Orleans Lafayette Houston 18

19 f. 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 g. 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 trial New Orleans Lafayette Houston 19

20 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 ) 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: New Orleans Lafayette Houston 20

21 (1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness. (2) 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. New Orleans Lafayette Houston 21

22 (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) (b) (c) 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 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. New Orleans Lafayette Houston 22

23 (4) 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. (5) Conflicts between LCCP art 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). New Orleans Lafayette Houston 23

24 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 (2) Nonverbal conduct of a person, if it is intended by him as an assertion. B. Declarant. A "declarant" is a person who makes a statement. New Orleans Lafayette Houston 24

25 C. 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: New Orleans Lafayette Houston 25

26 (2) Personal, adoptive, and authorized admissions. The statement is offered against a party and is: (a) (b) (c) His own statement, in either his individual or a representative capacity; 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. New Orleans Lafayette Houston 26

27 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 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 New Orleans Lafayette Houston 27

28 4. Requests for admissions a. LCCP art b. Understand the effective use of this evidentiary procedure and promptly respond to your opponents RFAs or they will be admitted. New Orleans Lafayette Houston 28

29 F. Internet sources (texts, , Facebook, Messenger, Linkedin, etc.) 1. Parties 2. Witnesses 3. 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 1. Stipulations a. Must be very carefully worded New Orleans Lafayette Houston 29

30 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 refuses New Orleans Lafayette Houston 30

31 V. Presenting/opposing evidence-(depends on the case) A. Memorize code of evidence 1. Somewhat difficult; and 2. Not generally necessary a. 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, (La. App. 3 Cir. 4/30/08), 981 So. 2d 920, "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, (La.App. 3 Cir. 4/6/05), 899 So.2d 857, writ denied, (La.11/28/05), 916 So.2d 145." New Orleans Lafayette Houston 31

32 VI. Routine rules issues 1. Hearsay (Louisiana Code of Evidence art. 801) a. Exceptions (Louisiana Code of Evidence arts. 803 & 804) 1) 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, 229 New Orleans Lafayette Houston 32

33 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 1. Usually better through a deposition (more spontaneous New Orleans Lafayette Houston 33

34 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 New Orleans Lafayette Houston 34

35 4. 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 objection New Orleans Lafayette Houston 35

36 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 admissions New Orleans Lafayette Houston 36

37 IX. Other things to consider 1. Know the judge a. 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 conference New Orleans Lafayette Houston 37

38 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) New Orleans Lafayette Houston 38

39 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 List New Orleans Lafayette Houston 39

40 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 point New Orleans Lafayette Houston 40

41 Closing Argument Urge the best points of your case Acknowledge Plaintiff s points but only if you can successfully counter New Orleans Lafayette Houston 41

42 4. At trial a. Do not interrupt b. Talk to the judge, not your opponent, except in rare circumstances c. Be prepared to provide authority New Orleans Lafayette Houston 42

43 X. Common evidentiary issues/objections 1. Leading questions 2. Hearsay a. "Everyone knows" b. 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. New Orleans Lafayette Houston 43

44 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. New Orleans Lafayette Houston 44

45 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. New Orleans Lafayette Houston 45

46 2. Elements of a Motion to Strike The elements of a motion to strike are roughly the same as those of an objection: 1. The opponent addresses the judge. 2. The opponent indicates that he or she is moving to strike. 3. 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. New Orleans Lafayette Houston 46

47 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. New Orleans Lafayette Houston 47

48 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 publication New Orleans Lafayette Houston 48

49 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 community New Orleans Lafayette Houston 49

50 XI. Appeals 1. Preserve objections Louisiana Code of Evidence art Watch out for jokes and unnecessary comments 3. 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 false New Orleans Lafayette Houston 50

51 d. 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 c. Remember that both of you have jobs to do d. Obligation of fairness to opposing counsel and party Rule 3.4 of the Rules of Professional Conduct New Orleans Lafayette Houston 51

52 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 party New Orleans Lafayette Houston 52

53 XII. What if you fail May lose client May lose respect of peers and judiciary Hey, but remember, there s always tomorrow New Orleans Lafayette Houston 53

54 Mark A. Lowe (337) A Professional Law Corporation New Orleans Lafayette Houston 54