Evidence in the Real World: Part 2

7. Handling evidence for the short trial

So your case is headed to trial. If you are plaintiff, your nightmare scenario is that you are going to offer a key document into evidence, the Very often, in advance of trial you and the other attorney can agree to the admission of much of the documentary evidence. You and the opposite attorney simply meet and exchange exhibits and decide whether there will be objection to any. For the exhibits to which there will be no objection, assemble the exhibits and prepare a joint pleading showing that both sides stipulate to the admissibility of the listed exhibits for trial and all motions. (I have attached a sample stipulation.) This is a perfect technique to use when there can be no real issue as to the authenticity of a document, but a hearsay objection might keep the exhibit out of evidence. The technique is useful for invoices, medical records, and other fundamental documents. (Other facts may be stipulated to as well, of course, beyond merely the authenticity of documents.)

Suppose for whatever reason no stipulation has been prepared, yet there is agreement between the lawyers that certain documents can be admitted without objection. In that event one of the attorneys will simply move, perhaps at the very start of trial, for the admission of plaintiff's exhibits 1 through 10, or whatever. Exhibits 1 through 10 may include some exhibits useful to the plaintiff and others which the defendant wants to get in. It doesn't matter whose exhibit it is; either party can use an admitted exhibit.

Alternatively, the parties may put together a simple binder comprising a number of documents, perhaps with tabbed pages, and move for its admission. This technique is useful in a small trial with a fairly large number of exhibits, where the binder will allow the judge or jury to easily flip to the appropriate document as testimony progresses.

Suppose your case involves important documents but you doubt the other side will consent to their admission. Perhaps the case is one in which there is bad blood, or perhaps the opposite party is pro se ("for himself", unrepresented) and is likely to be suspicious of any such overture. In that event, the Requests for Admission is your best friend.

Requests for Admission are described in Rule 36 of the Maine Rules of Civil Procedure. There is a federal counterpart as well. I attach a sample pleading.

Requests are very useful for establishing the authenticity of documents critical to your case. For example, suppose you are suing to collect a utility bill. You file an admissions request asking the defendant to admit (1) that the document attached as exhibit A is a true and accurate copy of the disputed bill and (2) that he got the bill around the date shown on the bill. The rules require the defendant either to admit or deny or to qualify the response. In your case the defendant can hardly do other than admit that it is a true, accurate copy. You can then use the defendant's signed pleading as a trial exhibit, and get the bill in that way.

The complaint is often a useful starting point for Requests for Admission. Although in many cases the answer to a complaint will consist of a string of denials, it is not so easy to deny a Request for Admission if in fact the matters for which admission is requested are true. Perhaps your complaint alleges "Attached as Exhibit A is a true copy of the final bill, showing a balance due of $1,500.00." In the answer, defendant denies, perhaps alleging that he can't be sure so he is denying. Fair enough, I suppose. But if you frame the same questions in Requests for Admission, it is much harder for the defendant to evade the truth.

Requests for Admission often precede a summary judgment motion. Suppose you think you can make the argument that there are no genuine issues of material fact in the case, so the judge ought to be able to decide the case by applying the law. You still need to get the documents into a posture where they could be admitted into evidence. Rule 56(c) says you can use Requests for Admission to establish the admissibility of documents. In a simple case, Requests are useful for establishing the few facts needed to make the case. In the complex case, admission requests are useful for ensuring, prior to the discovery period running, that you have all the various documents that your investigation has turned up in a posture for admission into evidence or for summary judgment.

Recently I had a case involving the fraudulent conveyance of about $2 million. There was an extensive paper trail: wire orders, brokerage statements, bank account statements, checks, and other documents. We placed the documents, some 500 in number, in chronologic order. We filed Requests for Admission asking the defendant to admit or deny their authenticity; they were essentially all admitted to. We then used the result as the foundation for a winning summary judgment motion. Had we lost summary judgment, we would have used the same admissions to get the documents into evidence at trial.

Practice note: If you are in Superior Court you will have a trial scheduling statement setting a deadline for discovery. Six weeks or so before the discovery deadline, go over the documents you have uncovered in investigation and discovery, and determine which you might want for summary judgment practice or for trial. Be over inclusive. Establish the authenticity of the documents by Requests for Admission. Same rule for District Court, but act well in advance of trial if no discovery deadline is set.

8. Motions in Limine

These are motions asking for an advance ruling on an evidentiary question. Rarely or never would such a motion be used to get a ruling that a document is authentic and therefore admissible. Much more typically the motion is used for a prior determination as to the relevance of evidence you intend to offer or which you know will be offered. For example, I represented a lady who was burned in a nursing home bed fire started by a lamp on her bedclothes. By moving in limine we tried (and failed) to keep out that ten years earlier she had attempted suicide. Other examples are the admission of evidence of insurance, or that the party is receiving workers compensation benefits. If there is an important and perhaps subtle evidentiary question in your case, it may be well to file a motion in limine.

Often the judge will not rule on the motion in advance of trial, preferring to rule only in the context of the evidence and argument made to that point. However, a motion can still be useful to alert the court to the issue and to frame your argument.

9. Expert Testimony

Expert testimony is covered in Rule 702. Generally (but not always, Rule 701) opinion cannot be offered as evidence except by an expert. And many cases cannot be made (proven) except with expert testimony. For example, no medical malpractice case will be won without a doctor testifying that in his or her opinion the care given by the defendant doctor did not meet the standard of care.

But there are lots of other cases where opinion will form a critical part of the case. In the truck vandalism case outlined above, the opinion of the truck repairer (that the repair costs were reasonable) will be in evidence.

Under a fairly recent amendment to the Maine Rules of Civil Procedure, a party must disclose expert testimony in some detail. I attach an example disclosure form tracking Rule 26(b)(4)(A). The expert disclosure deadline is set forth in the court's scheduling statement and failure to disclose your expert by the deadline may result in you not being able to make your case.

10. Illustrative aids

Illustrative aids are diagrams etc. that will be used at trial, not as a general matter for introduction into evidence. They cannot be misleading and can be excluded on that basis. Because the aid is usually an important part of counsel's argument and interrogation, objection to and denial of the use of an aid is problematic. For that reason it is a good idea (to say nothing of a courtesy) to show each aid to opposing counsel in advance of trial, perhaps several days before trial. If objection is made counsel can recast his or her argument to reflect the possibility that the aid may not be usable, and the issue can be decided by the court immediately before trial.

11. Resources

Maine Evidence, R. Field and P. Murray, Lexis Law Publishing 2000

Courtroom Handbook on Federal Evidence, S. Goode and O.G. Wellborn III, West 1997 (updated annually).

Both these books have extensive commentary and are invaluable whether fashioning a quick courtroom argument or crafting careful motion in limine. They go in the trial bag.

Nicholas Walsh - 207-772-2191.

By Nicholas Walsh, Maine Injury Lawyer