EVIDENCE, FOUNDATIONS AND OBJECTIONS. Laurie Vahey, Esq.

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1 EVIDENCE, FOUNDATIONS AND OBJECTIONS Laurie Vahey, Esq.

2 KINDS OF EVIDENCE Testimonial Including depositions Make sure you comply with CPLR requirements Experts Real Documentary Demonstrative Visual aid to use in the courtroom

3 IMPORTANCE OF ADMISSIBILITY It s not evidence unless it is admitted into evidence You can not read from a document without it being in evidence Be careful about openings and specifically referring to something that may not come in Mark for Identification to Lay Foundation and Admit Tips: Chart to Keep track of what is Marked and What is In Evidence Remember to Ask for it to be Admitted

4 KNOW WHAT IT TAKES TO GET IT IN Proper Foundation Relevancy Assist the Jury

5 WHAT COURT ARE YOU IN? Federal vs. State Court - Federal Rules of Evidence Codified - There are differences Example: Admissibility of Scientific Expertise Frye (State Court) Daubert (Federal Court)

6 EXPERT TESTIMONY General Foundation Requirements Help clarify issue calling for professional or technical knowledge Subject matter outside common knowledge and experience of ordinary jurors Witness qualified by knowledge, experience, training or education as an expert in the appropriate field After lay foundation, technically do not have to ask Court to recognize as expert but you can Offered with requisite level of certainty

7 EXPERT TESTIMONY (cont d) Technical Experts Cannot testify to meaning and applicability of regulations Can testify that condition was dangerous and/or in violation of a regulation Medical Experts Treating physicians are not typically experts IME reports not typically admissible

8 REAL EVIDENCE Foundational requirements include: Relevant to issue you seek to prove or disprove Probative value outweighs prejudice Accurate and authentic

9 DEMONSTRATIVE EVIDENCE Aids the jury Not Prejudicial Accurate To scale If digital, have paper copies to mark

10 DOCUMENTARY Know the documents need for case Identify what witnesses will get in and how; or Certifications needed to get records in; Can you stipulate? Photographs Fair and accurate depiction of area in question at time at issue Remember to get foundations at depositions

11 FOUNDATION FOR CERTAIN TYPES OF EVIDENCE Photographs Business Records Medical Records An expert cannot testify to what is in the records without them being in evidence (including x-rays and other diagnostics) Get PROPER certifications in discovery and for trial Subpoena early and send certification with subpoena for consideration

12 DEMONSTRATIVE EVIDENCE How important is it? Always be thinking of visuals for the jury Foundation for Charts, Summaries, Maps

13 REFRESH RECOLLECTION VERSUS IMPEACH Contradictory Statement (Impeach) The witness cannot recall (Refresh) BOTH Mark document or transcript Tell opposing side Identify for record Refreshing ONLY: Have read, Ask if refresh IMPEACH: LAY FOUNDATION FOR WHEN AND OATH, READ IN AND ASK IF ASKED AND GAVE THAT ANSWER

14 OBJECTIONS Purpose: Prevent consideration of inadmissible or improper material and preserve record on appeal Anticipate both sides ahead of time What objections will there be to your materials? How can you object to opponents? Do you want voir dire of the witness? Add Objections and Evidence sections to your Trial Notebook Have Memoranda ready on the foreseeable issues (hand to Court when it comes up)

15 WHEN TO OBJECT Timing Real Time In Limine When document is offered into evidence Jury Charges after conference and ask to be on the Record General Bases to Object Improper Foundation Question or Answer Specific

16 WHEN TO OBJECT (CONT D) Non-Traditional Bases to Object Objectionable and want to interrupt flow of opponent Preclusion/No Notice and Required Example) Information requested and not produced in responses such as omnibus demand responses, bill of particulars or interrogatory responses

17 OBJECTIONS PROTOCOL Stand Up State the Basis Succinctly and Firmly Be able to explain Basis if Asked Asked to be Heard if overruled and you want to explain Remember, even if overruled you want to preserve for the Record Continuing Objection Ask to go out of presence of jury to explain on the record if important issue and ask to do later if Court not open to idea If sustained and you questioning, correct question if possible (do not give up!)

18 TYPICAL OBJECTIONS Question or Answer Specific Hearsay If making the objection and it comes in, remember to ask for limiting instruction if not offered for the truth of the matter Leading Non-Responsive Prejudicial (Motion for Mistrial) Relevancy Argumentative/Badgering Compound

19 TYPICAL OBJECTIONS Speculation Dead Man s Statute Prior Bad Acts Improper Habit Evidence Subsequent Remedial Measure Privileged/Work Product Parol Evidence Improper Impeachment

20 IT IS IN NOW WHAT? Show the jury Read from it Do NOT take out of the courtroom

21 IT DID NOT GET IN NOW Offer of Proof? WHAT? As to do outside presence of jury Try and have witness testify in response to your questions Worst case, say for the Record what the witness would have said Can get in with another witness? In your outline of witnesses, try and get in with the first witness possible.

22 GENERAL TIPS Premark Have multiple grounds to object Do not get flustered Motions in limine on expected issues Know answer and preserves issue for appeal If facts develop and need to revisit denied motion in limine, try again

23 Lidestri v DDS Facts of the Case Legal Issues to be determined By Court By Jury Types of Evidence Documentary Real Demonstrative Factual Testimony Expert

24 Lidestri v DDS Anticipated Objections Contractual Indemnification Parol Evidence Prohibited Failed to Plead Mistake or Reformation Objections to Testimony Reading In Testimony Party Former Employees Impeach own witness Leading of Non-Party Witness