Advanced Civil Litigation Class 3Slide 1 Types of Evidence Testimonial evidence Testimonial evidence from eyewitnesses having personal knowledge from eyewitnesses having personal knowledge Documentary evidence Documentary evidence This includes anything not directly testified to, such as: This includes anything not directly testified to, such as: Police reports, contracts, stock certificates, etc. Police reports, contracts, stock certificates, etc. Real evidence Real evidence The physical object involved in the cause of action; e.g., The physical object involved in the cause of action; e.g., Weapons, scars, etc. Weapons, scars, etc. Demonstrative evidence Demonstrative evidence Photographs Photographs Demonstrations Demonstrations Computer models Computer models

Advanced Civil Litigation Class 3Slide 2 Direct vs. Circumstantial Evidence Direct evidence shows the event to have happened directly. Examples: Direct evidence shows the event to have happened directly. Examples: Eyewitness testimony Eyewitness testimony Video tape of incident Video tape of incident Audio tape of incident Audio tape of incident Circumstantial evidence provides evidence of facts that could lead to an inference that something happened; examples: Circumstantial evidence provides evidence of facts that could lead to an inference that something happened; examples: Blood and fingerprints Blood and fingerprints Weapon registration records Weapon registration records Both are admissible and both can be incriminating. There is no difference in the rules of evidence between these! Both are admissible and both can be incriminating. There is no difference in the rules of evidence between these!

Advanced Civil Litigation Class 3Slide 3 Planning the Investigation and The Rules of Evidence In conducting an investigation, the first thing that must be asked is whether a piece of evidence will be admissible. If not: In conducting an investigation, the first thing that must be asked is whether a piece of evidence will be admissible. If not: It may not pay to seek out the evidence; and It may not pay to seek out the evidence; and You need to continue the search for something that can prove the same thing that is admissible You need to continue the search for something that can prove the same thing that is admissible Keep in mind though, that sometimes finding information is still useful even if it won’t be admissible, as it can often be used: Keep in mind though, that sometimes finding information is still useful even if it won’t be admissible, as it can often be used: To lead to other admissible evidence To lead to other admissible evidence As negotiating leverage As negotiating leverage

Advanced Civil Litigation Class 3Slide 4 Rules of Evidence: What to Watch out for Character Evidence Character Evidence Generally inadmissible; with exceptions for Generally inadmissible; with exceptions for Character of the accused Character of the accused Character of the victim in a self-defense case Character of the victim in a self-defense case To prove motive, opportunity, identity, etc. To prove motive, opportunity, identity, etc. Habit Habit Certain sexual abuse cases Certain sexual abuse cases Anything to which the other side has “opened the door” Anything to which the other side has “opened the door” Illegal searches and seizures Illegal searches and seizures This is not usually relevant in civil cases This is not usually relevant in civil cases Privileges; inadmissible communications include: Privileges; inadmissible communications include: Attorney-client Attorney-client Doctor Patient Doctor Patient Priest-Penitent Priest-Penitent

Advanced Civil Litigation Class 3Slide 5 Rules of Evidence: Hearsay Keep in mind that hearsay is generally not admissible. Keep in mind that hearsay is generally not admissible. So if a witness tells you what some other person said, go track down that person and get a first hand statement So if a witness tells you what some other person said, go track down that person and get a first hand statement There are many exceptions to the hearsay rule, including: There are many exceptions to the hearsay rule, including: Statements of your opponent Statements of your opponent Former testimony, in some cases Former testimony, in some cases The “res gestate” category exceptions The “res gestate” category exceptions Excited utterance Excited utterance Present sense impression Present sense impression Present state of mind Present state of mind Dying declarations Dying declarations Statements made for purpose of a medical diagnosis Statements made for purpose of a medical diagnosis

Advanced Civil Litigation Class 3Slide 6 Rules of Evidence: Opinions During investigation, it’s important to know the opinion rule because in most cases, a witness can’t speculate on the stand. During investigation, it’s important to know the opinion rule because in most cases, a witness can’t speculate on the stand. Exceptions: Exceptions: Where a reasonable person could draw the conclusion from the circumstances Where a reasonable person could draw the conclusion from the circumstances Expert testimony Expert testimony Experts can be expensive and most people can’t qualify; so before you conclude that you need an expert, determine: Experts can be expensive and most people can’t qualify; so before you conclude that you need an expert, determine: Whether you can get the same information in from another source Whether you can get the same information in from another source If the expert will testify how you want him/her to If the expert will testify how you want him/her to

Advanced Civil Litigation Class 3Slide 7 Rules of Evidence: Authentication of Documents Establish a chain of custody for all physical evidence! Establish a chain of custody for all physical evidence! It’s tedious work, but to introduce physical evidence, you may have to show who held it for how long from the moment of the incident until is appears in court. This may require many witnesses to confirm one piece of evidence It’s tedious work, but to introduce physical evidence, you may have to show who held it for how long from the moment of the incident until is appears in court. This may require many witnesses to confirm one piece of evidence In civil cases, chain of custody if often stipulated to, so as to save both parties the trouble In civil cases, chain of custody if often stipulated to, so as to save both parties the trouble Original Documents Rule (“Best Evidence”) Original Documents Rule (“Best Evidence”) The original is generally required of any relevant document, as opposed to a handwritten copy or a summary or chart prepared by another person that indicates what the document says The original is generally required of any relevant document, as opposed to a handwritten copy or a summary or chart prepared by another person that indicates what the document says However, photocopies are allowed unless there’s some reason to doubt its authenticity However, photocopies are allowed unless there’s some reason to doubt its authenticity

Advanced Civil Litigation Class 3Slide 8 Planning the Investigation First, you need to calculate: First, you need to calculate: 1) what elements you need to prove to win your case 1) what elements you need to prove to win your case 2) what facts will be needed to establish those elements 2) what facts will be needed to establish those elements 3) What sources will or may provide those facts 3) What sources will or may provide those facts Second, review the file you already have to: Second, review the file you already have to: See what facts you already can prove with that you have See what facts you already can prove with that you have See if you can find leads to the other information See if you can find leads to the other information Next, make a list of likely sources of information this case; e.g., Next, make a list of likely sources of information this case; e.g., Your client and witnesses Your client and witnesses Police and hospital, in an accident case Police and hospital, in an accident case Government agencies Government agencies Public library and similar sourses Public library and similar sourses

Advanced Civil Litigation Class 3Slide 9 Internet Research Necessary information can often be gotten online, including: Necessary information can often be gotten online, including: Weather reports for relevant dates Weather reports for relevant dates Location of people or businesses Location of people or businesses Public records, deeds, etc. Public records, deeds, etc. Information about medicines and drugs Information about medicines and drugs Real estate and vehicle appraisals Real estate and vehicle appraisals However, if you are going to use any of this information in court, think about how you’re going to introduce it. However, if you are going to use any of this information in court, think about how you’re going to introduce it. You’ll need to introduce it through a witness or reliable documents You’ll need to introduce it through a witness or reliable documents A court is not going to allow you to introduce a Wikipedia article as evidence… A court is not going to allow you to introduce a Wikipedia article as evidence…

Advanced Civil Litigation Class 3Slide 10 Specific Methods of Investigating Viewing and combing the scene of the incident Viewing and combing the scene of the incident Calling or mailing all people that may have information Calling or mailing all people that may have information Internet searches for information Internet searches for information Personal interview with key witnesses Personal interview with key witnesses Professional research services Professional research services Private investigators, if necessary and can be afforded Private investigators, if necessary and can be afforded Searches of legal databases, like Lexis Searches of legal databases, like Lexis Photographing and/or videotaping key scenes and pieces of evidence Photographing and/or videotaping key scenes and pieces of evidence Run scientific tests Run scientific tests Consult experts Consult experts Freedom of Information Act requests Freedom of Information Act requests

Advanced Civil Litigation Class 3Slide 11 Investigations – Ethical Concerns A legal professional must not approach another party represented by counsel without the consent of the other party’s lawyer A legal professional must not approach another party represented by counsel without the consent of the other party’s lawyer One must not misrepresent his interests in the case or whom he works for One must not misrepresent his interests in the case or whom he works for Paralegals must be careful not to give legal advice Paralegals must be careful not to give legal advice And attorneys should not give legal advice to non-clients And attorneys should not give legal advice to non-clients Disclose all conflicts of interests when interviewing anyone Disclose all conflicts of interests when interviewing anyone One may not threaten, harass, intimidate or bribe a potential witness One may not threaten, harass, intimidate or bribe a potential witness Complete your own work product- don’t rely on opponent’s investigations! Complete your own work product- don’t rely on opponent’s investigations!

Advanced Civil Litigation Class 3Slide 12 Gathering Evidence Medical records Medical records HIPAA prevents providers from releasing information without authorization. In almost all cases, you will need authorization or a subpoena to get medical records HIPAA prevents providers from releasing information without authorization. In almost all cases, you will need authorization or a subpoena to get medical records Employment records Employment records Also, because of confidentiality rules and policies, authorization or subpoena may be necessary Also, because of confidentiality rules and policies, authorization or subpoena may be necessary Investigating the scene of an accident Investigating the scene of an accident Try diagramming the scene Try diagramming the scene Photograph the scene from every angle you can think of Photograph the scene from every angle you can think of Try to reenact the incident on your own with information you have to get a clearer picture of what happened Try to reenact the incident on your own with information you have to get a clearer picture of what happened

Advanced Civil Litigation Class 3Slide 13 Locating Witnesses Ways to get information on who might be a witness: Ways to get information on who might be a witness: Asking the client for ideas Asking the client for ideas Review other evidence for names of witnesses Review other evidence for names of witnesses Ask people who work or live nearby if anyone saw anything Ask people who work or live nearby if anyone saw anything Use media or ads to get the word out that you are looking for witnesses Use media or ads to get the word out that you are looking for witnesses Locating candidates for expert witnesses Locating candidates for expert witnesses Ask colleagues who have had similar issues and cases Ask colleagues who have had similar issues and cases Put ads in professional journals Put ads in professional journals Look at applicable departments in universities for experts Look at applicable departments in universities for experts Look at legal publications or online for ads placed by experts advertising their availability Look at legal publications or online for ads placed by experts advertising their availability

Advanced Civil Litigation Class 3Slide 14 Interviewing Witnesses Know beforehand exactly what information you want from the witnesses Know beforehand exactly what information you want from the witnesses Try not to have to go on a “fishing expedition” which will waste time and annoy the witness. Try not to have to go on a “fishing expedition” which will waste time and annoy the witness. Have a checklist for all information you want from the witness Have a checklist for all information you want from the witness Be friendly and courteous to the witness Be friendly and courteous to the witness A person who doesn’t like you is less cooperative A person who doesn’t like you is less cooperative Don’t threaten a witness with a subpoena unless you have to. If you threaten to get a subpoena, be prepared to follow through Don’t threaten a witness with a subpoena unless you have to. If you threaten to get a subpoena, be prepared to follow through Emphasize that you and your client are looking for the witness’ help. Emphasize that you and your client are looking for the witness’ help. Draft a witness statement after the interview and ask the witness to review it for accuracy Draft a witness statement after the interview and ask the witness to review it for accuracy

Advanced Civil Litigation Class 3Slide 15 Preserving Evidence for Trial Backup safely all electronically stored evidence Backup safely all electronically stored evidence Make sure it’s password protected and can’t be tampered with Make sure it’s password protected and can’t be tampered with Make sure it’s clearly identified and won’t confuse someone in the firm looking at the evidence Make sure it’s clearly identified and won’t confuse someone in the firm looking at the evidence Keep a log for people who check evidence out to sign Keep a log for people who check evidence out to sign Make sure you can establish the chain of custody!! Make sure you can establish the chain of custody!! Before evidence is tested in a manner that could damage it, back it up if possible and give the opponent a chance to examine it Before evidence is tested in a manner that could damage it, back it up if possible and give the opponent a chance to examine it Back up and copy (and scan) all photos, sketches, documents, etc. Back up and copy (and scan) all photos, sketches, documents, etc. Back up all video and audio taped evidence Back up all video and audio taped evidence