expert.2010.part 1
TRANSCRIPT
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National Business Institute
Evidence and Expert
Testimony Best Practices:Supporting Your Case
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Strategies for Working
with Evidence at Trial
Gerry Schulze
BAKER & SCHULZE
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How to Maximize Use of
Evidence Rules 700 series. Major advantage: the kind of opinion
testimony an expert can give. Lay witness:
(a) rationally based on the perception of the witness (b) helpful to a clear understanding of the witness'
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or otherspecialized knowledge within the scope of Rule 702.
Federal Rule
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Expert Testimony 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 byknowledge, skill, experience,training, or education
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may testify thereto in the form ofan opinion or otherwise
, if
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Federal clarifications (But the same rule really applies
everywhere)
(1) the testimony is based upon sufficientfacts or data
(2) the testimony is the product ofreliable principles and methods and
(3) the witness has applied the principlesand methods reliably to the facts of thecase
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Basis of opinion testimony Rule 703
Information provided at the (trial or)
hearing Hypothetical questions
If of a type reasonably relied on byexperts in the fieldit needs not beadmissible in evidence: Were mostly talking about hearsay
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evidence not otherwise
admissibleThat doesnt mean they can be a
conduitfor that evidence.You cant get hearsay into
evidence by asking an expert ifshes run across it in investigating
the case.
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The Federal Rule makes
that clearsort of. Facts or data that are otherwise
inadmissible shall not be disclosed to
the jury by the proponent of theopinion or inference unless the courtdetermines that their probative valuein assisting the jury to evaluate the
expert's opinion substantiallyoutweighs their prejudicial effect
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Ultimate Issue Except as provided in subdivision
(b), testimony in the form of an
opinion or inference otherwiseadmissible is not objectionablebecause it embraces an ultimate
issue to be decided by the trier offact.
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Federal Addition (b) No expert witness testifying with
respect to the mental state or condition of
a defendant in a criminal case may statean opinion or inference as to whether thedefendant did or did not have the mentalstate or condition constituting an element
of the crime charged or of a defensethereto. Such ultimate issues are mattersfor the trier of fact alone.
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Rule 705 Rule 705. Disclosure of Facts or Data
Underlying Expert Opinion
The expert may testify in terms of opinionor inference and give reasons thereforwithout first testifying to the underlyingfacts or data, unless the court requires
otherwise. The expert may in any event berequired to disclose the underlying facts ordata on cross-examination.
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Rule 706The court can appoint an expert.
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An expert is an individual who wasnot present when the incident
occurred, but for a healthy fee willhappily imagine what it was like andhow it happened.Justin P. Murphy, quoted inJeffrey G.
Soper, Effective Expert WitnessingTaylor& Francis (2007)
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Value of Experts Add information Add understanding
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What do you have to
prove? Does your proof, by its nature, require
expertise
Medical evidence Injury cases Medical malpractice
Defective Product Case Products Liability
Manufactured in a defective condition that renderedit unreasonably dangerous . . .
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Mental Capacity Probate/Guardianship
Questions of mental capacity Do legal definitions of competence fit
well with what scientists believe aboutmenta
Diminished Capacity in criminalcases
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Criminal cases CSI! Bones! I dont do criminal law, but I read about it.
My wife watches Bones on television. My mother-in-
law watches CSI. I cant help seeing it. Somehow I doubt they have a computer that
generates floating three-dimensional models at theArkansas Crime Lab. Do they?
I suspect, as an outsider looking in, that this isan area in which underfunded scientificevidence creates serious risks of error. Handwriting identification.
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Investigation Fire investigation Accident reconstruction
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Standards written into the
law Reasonable Degree of Medical
Certainty or Probability.This jumble of words only means
something because judges andlawyers says it does.
What does it mean, then?
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Medical Certainty or
Probability The use of the terms "probable" and "possible" as a basis
for test of qualification or lack of qualification in respect toa medical opinion has frequently converted this aspect of atrial into a mere semantic ritual or hassle. The courts havecome to recognize that the competency of a doctor'stestimony cannot soundly be permitted to turn on amechanical rule of law as to which of the two terms he hasemployed. Regardless of which term he may have used, ifhis testimony is such in nature and basis of hypothesis asto judicially impress that the opinion expressed representshis professional judgment as to the most likely one amongthe possible causes of the physical condition involved, thecourt is entitled to admit the opinion and leave its weight tothe jury.
Norland v. Washington General Hospital, 461 F.2d 694, 697(8th Cir. 1972).
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Proximate Cause The law frequently uses the expression
proximate cause, with which you may not befamiliar. When I use the expression proximatecause, I mean a cause which, in a natural and
continuous sequence, produces damage andwithout which the damage would not haveoccurred.
This does not mean that the law recognizes onlyone proximate cause of damage. To the contrary,
if two or more causes work together to producedamage, then you may find that each of themwas a proximate cause.
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Proximatethe medical
definition Medical dictionaries define the term
"proximate" as "immediate," "next," and"proximal. e.g. Stedman's Online Medical Dictionary
s.v. "proximate. www.stedmans.com
"a. very near; b. next, preceding, orfollowing; especially relating to or beinga proximate cause. Merriam Webster Online Medical Dictionary.
www.merriam-webster.com/medical/proximate
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Arkansas LawThe proximate cause need not bethe last or nearest one. State
Farm Mut. Auto Ins. Co. v. Pharr,305 Ark 459, 808 S.W.2d 759(1991).
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Medical Usage:
Proxmate means exactly, last ornearest.
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Example
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Merriam Webster Unabridged Dictionary s.v.proximate
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David Mellinkoff, The
Language of the Law (LittleBrown & Co., 1964)
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Statistics
We dont think in a statisticallylogical fashion.
What bothers you more: Esso charges you a surcharge to use
your credit card.
Lion gives you a cash discount if youbuy your gasoline there.
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Hypothetical
Imagine that the United States is preparing forthe outbreak of a disease from abroad, whichis expected to kill 600 people. Two alternative
programs to combat the disease have beenproposed. Assume the exact scientificestimate of the consequences of the programsare as follows." Program A: "200 people will be saved" Program B: There is a one-third probability that 600
people will be saved, and a two-thirds probabilitythat no people will be saved"
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Which should we tryshow of hands
Theres no right answer here
PROGRAM A __________
PROGRAM B __________
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Different Hypothetical
Imagine that the United States is preparing forthe outbreak of a disease from abroad, whichis expected to kill 600 people. Two alternative
programs to combat the disease have beenproposed. Assume the exact scientificestimate of the consequences of the programsare as follows." Program 1: "400 people will die" Program 2: "there is a one-third probability that
nobody will die, and a two-third probability that 600people will die"
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Which should we tryshow of hands
Theres no right answer here
PROGRAM 1 __________
PROGRAM 2 __________
Credit for these questions to AmosTversky and Daniel Kahneman.
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Linda
Linda is 31 years old, single, outspoken,and very bright. She majored inphilosophy. As a student, she was deeply
concerned with issues of discriminationand social justice, and also participated inanti-nuclear demonstrations.
Which of these two options is moreprobable: (a) Linda is a bank teller, or (b) Linda is a bank teller and active in the
feminist movement.
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Motions in Limine
Motions in limine are for a specificpurpose: to prohibit mention of
some specific matter, such asan inflammatory piece ofevidence, until the admissibility of
that matter has been shown out ofthe hearing of the jury.
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Motions in Limine
What theyre notfor: To require a party to try the case twice
Thats what summary judgment is for.
To choke off an entire claim or defense To prohibit a party from proving a case by
use of vague and sneaky language thatbroadly excludes virtually all evidence.
To reaffirm all the rules of evidence To prevent every bad thing that has ever
happened to you at trial from happeningagain.
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-limine have become thenorm
You need to read them, reply tothem, and for the most part, object
to them. I never agree to a motion in limine
if I cant figure out what evidence
the other party wants to exclude.
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Irrelevant Motions inLimine Boilerplate collected from previous cases.
Asked the court to direct me not to tell the jury that thedefendant was deposed twicehe wasnt.
Asked the court to direct me not to tell the jury that the
defendant had been sued beforehe hadnt. Asked me to direct the court not to mention the fact thatthe defendant had been obstructionist in discovery. I knowyou wont believe this, but this particular defendant hadbeen not actually been obstructionist in discovery.
Asked the court to direct me and my witnesses not tomention insurance in any wayin a direct action against an
insurer. Asked the court to direct me and my witnesses not to referto any communications for which Rainey asserted aprivilege. We did not intend to do so, because to ourknowledge there wasnt a Rainey associated with thelawsuit.
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Generic Motions in Limine
No hearsay No expert testimony without laying
a foundation Etc.
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Using evidence toinfluence the jury
The two case analysis: The judge case, proving enough to be
allowed to go to the jury and get theinstructions you need. The jury case, convincing the jury to find in
your favor.
In theory, the evidence that achieves theformer should be identical to that whichachieves the latter.
In the real world, thats not what happens.
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Magic Words
Magic Words are almost part of thejudge case
The Arkansas courts continually repeatthat magic words arent required. But theyre not forbidden either. And sometimes, they are, as a practical
matter, required. Otherwise, your expertmay not judicially impress that the opinionexpressed represents his professional
judgment as to the most likely . . . .
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Evidence comes fromwitnesses
Consider the source Its a natural human tendency.The strength of your evidence is
going to depend on how thefactfinder evaluates your source.
Were going to talk about how tomake your expert more worthy ofbelief.
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Let the evidence comefrom witnesses
Rules against leading help Be aware of the role of television.
To the greatest extent possible, makeyou experts testimony flow.
The best expert is somewhat of ateacher.
Models and illustrations help.Powerpoint presentations help.
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Tools of Experts
Powerpoint It can replace the old flip chart
Although you still may want to use an oldflip chart in some cases.
Photographs
For accident scenes, a satellite shot isalmost always available these days.
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Thanks to Google Earth
There are all kinds of resources outthere.
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Computer Graphics
Drawings/Computer Graphics. Nothingsticks in jurors' minds as much as strongvisualization. Well-thought-out graphics can
allow you to break down complex processesinto simple, understandable elements. Matson, et al (in the materials)
Your expert probably could not justify the
computer assisted reenactment I justproduced, but he or she might be able toproduce a plausible one.
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Highlight Documents
4. Highlighted Critical Documents. Mediaprofessionals can take an important documentand highlight a phrase or a portion by dulling
the remainder of the page and showing amagnifying glass (or some other technique) toexpand what you want the jury to see. Thisapproach should be commingled with othermultimedia to relate evidence to your opinions
in a visual way. Matson
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Call-outs
Thewitness
missedhis teetime.
Did thisincidentdisrupt the
witnessslifestyle?
Not from Matson
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5. Models. Scale models can be costly butare potentially worth every penny. Alwaysconsider how your opinions can be enhancedif you have a scale model available. Makesure that sufficient fidelity to reality ismaintained, or the other side may object andthe judge may agree, in which case yourmodel will not be allowed in the courtroom.Also, remember that the other side can use
your model to demonstrate its own points. Matson
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Video and Animation
Ive quoted from Matson, et al onthis too in the materials. The skys
no longer the limit. There is nolimit except what fairly andaccurately represents the truth.
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Any questions?
Lets review the framing questionsearlier:
Of the disease problems: Programs A and B A B
Programs 1 and 2 1 2
rograms an are e
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rograms an are esame. Programs B and 2 arethe same.
Program A: "200 people will be saved
Program 1: "400 people will die
Program B: There is a one-third probability that 600 people will be
saved, and a two-thirds probability that no people will be saved" Program 2: "there is a one-third probability that nobody will die, and
a two-third probability that 600 people will die"
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Linda
Which of these two options is moreprobable:
(a) Linda is a bank teller, or (b) Linda is a bank teller and active in the
feminist movement.
Its possible shes not active in the
feminist movement. Both optionsassume shes a bank teller.