How to lay a foundation to get your evidence introduced

A lecture by Thomas Gagne, Esq.

Hello. My name is Thomas Gagne. I am a personal injury attorney from the Greenville Spartanburg area, and I’ve tried civil as well as criminal cases for the last 27 years. I begin my career as a prosecutor for the United States Army, where I served three years active duty in five years reserve duty. During that time also tried administrative cases as a defense attorney. I also worked as a county prosecutor for Richland and York counties as Assistant Solicitor.

For the last 19 months you have been helping your team leader with discovery. You feel ready to take the lead on a case, and today is the day you get your wish. Marcus Jones, your client, injured himself while within the scope of his employment with North American Security Services at a Boeing plant. He suffered several injuries and had to undergo surgery on both his knees. One of his knees required complete replacement. You have finished the workers compensation claim, and you’re ready to proceed with the third-party claim. You are seeking past and future damages as well as punitive damages. The defense is denying all your allegations.

We’re here today to discuss how to enter various non-testimonial types of evidence under Federal Rules of Evidence. I will not complicate things by including evidence rules promulgated under South Carolina rules of evidence, but FYI they pretty much track the federal rules.

Before we get to admission problems, let’s briefly discuss the importance of developing a coherent legal and factual theory of your case. Given the plethora of information every case offers, you just can’t go off in your discovery in any direction and expect to get traction. You need a factual/legal theory of the case from which to view evidence and from which drive your questions, drive your analysis of your case.

But here’s the dilemma, at the beginning of the case, usually you don’t have enough facts to fashion a decent case theory. It’s a matter of pulling oneself up by the bootstraps. Fortunately, there’s a solution to this dilemma. If you are a PI lawyer, your client should provide you with 50 to 80% of the facts of your case at the intake. That’s enough for you to form a preliminary thesis. Of course the problem with this approach is: how reliable is your client? No matter how truthful your client seems, take nothing on faith. Verify everything your client says at the beginning of your case. Verify through questions and corroboration all other evidence in the case. It will save you a lot of headaches later on.

The elements we learn in law school and for the bar concerning causes of action are somewhat misleading. They are misleading in the sense that they are incomplete and only touch on making a prima fascia case. This is why you need a solid legal theory which takes into account all the parameters of the law before building your case. Take for example premises liability. Like any tort and negligence case you must prove duty, liability, proximate causation, and damages. However this is not the end of the story. As you know you must first determine the legal status of your client. Is she a business invitee or a licensee? You must determine if there was a notice, either actual or constructive.

You must determine if the danger was created by the defendant or was it, say, weather related? This affects many other elements of a premises liability case. You must determine if the tort was merely negligence or did it rise to the level of recklessness? What about damages? Are you seeking past and future? Are you seeking punitive damages? All of these are “elements“which are not specifically addressed by black letter law in the same space. As you can see, many more elements coming to play, revealing themselves as you proceed. This requires you to really dig into the legal requirements of your case. Consult treatises and other educational materials, especially those written by lawyers who practice in your state.

Once you have developed a preliminary theory and developed your evidentiary goals, you are ready to proceed. At every stage of your preparation remain skeptical. Always try to falsify your case by looking at it from the point of view of your opponent. The greatest attribute of a good litigator is to anticipate and prepare for trouble before it exists.The greatest sin a litigator can commit is to be gullible. Your attitude toward any piece of evidence should be good natured skepticism. Be skeptical of your opponent’s evidence. Most importantly be skeptical of your evidence. Try to get down to the studs, as they say, in the structure you are creating. Identify assumptions and personal bias and interrupt them.

Before you tackle any evidence problem, you have to ask yourself why do I need this piece of evidence, how does it help my case, what are the virtues besides meeting an element of my cause of action? Does it fit into my overall legal theory and or factual theory? What objections are likely to be raised by opposing counsel, and, most importantly, what are its downsides. Every piece of evidence has its strengths and weaknesses that vary according to what it is, what it proves, and how it fits in with other evidence in your case an in your opponent’s case. Can the evidence be viewed from a perspective that is antithetical to your case? How likely will the jury interpret it that way? Understand that juries are not monolithic. There can be as many interpretations of evidence as number of jurors. And remember, jurors view evidence from their own experience. Their thinking is pattern driven. They usually don’t conduct formal syllogistic analyses.

Also, don’t be satisfied with the prima fascia showing. Remember, you’re appealing to a jury of lay persons, and you have to be sensitive as to what they are likely to consider. In the OJ Simpson case, for instance, jurors considered not only the evidence presented in court, but the out of court evidence of a police department with an abysmal record in race relations.

So, you know the evidence you are going to use to prove your elements. Now you have to get them admitted. Tip: don’t wait until trial to try to introduce your evidence. See if opposing counsel will stipulate to admission. If not, consider making a motion in limine. Judges generally don’t like to admit evidence before trial because, again, evidence assumes its full color within the context of the entire case, within the context of other evidence. Judges generally like to wait until a more appropriate time during trial to decide on admissibility issues.

As with other types of evidence, documentary evidence must meet the following requirements: it must be relevant, it must not violate a privilege, it must not be inadmissible hearsay, it must be authentic, it must not violate the best evidence rule, and its probative value must exceed any prejudicial effect it may have. Again, don’t wait until the last minute to meet these requirements. Trial and hearing schedules are not as flexible as you may think. Always behave as if you’re running late. Get things done early because believe me there are always glitches which will put you behind the eight ball.

Admissibility needs witnesses. Witnesses can be cross-examined while documents cannot, yet we are relying on what the documents have to say on many occasions and generally the witnesses who shepherd them in have not themselves produced, in the sense of having written, the document. Think about the fairness of that for a moment. Because the document needs a “shepherd,” make certain the witness is available, is able to testify as you wish, and most importantly, is subpoenaed for trial. If you fail to subpoena her and she fails to show for trial, you may not get a continuance.

Let’s begin then with the most common type of record — the business record. Proper custody of the record is the key to authentication. Authentication — the thing is what the moving party contends it is. Thee witness must know the business filing system, has retrieved the record from the right file and recognizes the record as the one retrieved. Make certain the custodian specifies precisely how she recognizes the record as the one she retrieved, after which you ask the court to enter the document into evidence. The sequence is as follows:

Have the court reporter mark the record before showing it the custodian and say something like —“I am handing you what has been marked as Plaintiff’s Exhibit 1 for identification.” At the end of the presentation and testimony say: “Your Honor, I’d like to offer what has been marked as Plaintiff’s exhibit 1 for identification into evidence as Plaintiff’s Exhibit One.” At that point ask the court to enter it into evidence. The court will ask opposing counsel if she has any objections to its admission, and if she doesn’t, then the record is introduced.

Photographs. It’s best to get the photographer to testify to photos’ authenticity. If one of your investigators took the picture, make sure she signs and dates the hard copy of the photo and can account for where the photo has been stored pending trial. I have never had a chain of custody objection, but it is a possibility. It’s easy to tamper with photos, especially these days with sophisticated programs. But anyone familiar with the scene or the object will do.

The elements of the foundation are: the witness is familiar with the object or scene that the photo depicts, the witness explains why and how she is familiar with the scene or object, the witness recognizes the object or scene in the photograph, and the photo fairly represents the object or scene. If you plan to use the photo as demonstrative evidence, make sure you blow it up. Photos are much more compelling to the jury when they are enlarged. If you plan to use several photos during final argument, set them up all at once so the jury has the maximum amount of time possible to view and digest their significance. It also provide a neat physical structure to your argument.

Which brings us to the admissibility requirements of demonstrative evidence. This is similar to the verification of photos. The diagram depicts a scene or object, the witness is familiar with it, the witness explains how she knows the object or area, and in the witnesses opinion the diagram accurately reflects the scene or object. Show the diagram to opposing counsel before you admit it. If there is something objectionable in the piece of demonstrative evidence, make sure your diagram or whatever can accommodate the change without having to throw the entire exhibit out.

Video recordings. Again, reproductive fidelity is the key. The foundation includes: the videographer is qualified, the videographer videotaped a thing or person at a particular time and place, the equipment was in good working order, proper procedures were used, the recording is a fair reproduction of the subject, the recording has been in the possession of the videographer since it was made or you can establish a chain of custody. For chain of custody issues, start planning early as witnesses may be unavailable, especially if the evidence is old.

Letters and private writing. This type of evidence generally involves wills and contracts, but they can be anything. This is why you have multiple witnesses to this documents during their execution. The foundational requirements for these documents are: the witness recognizes the document; the witness actually observed the document’s execution, when the document was executed, who else was present, what happened (witness testifies to its execution). Make sure you have the original as the terms of the writing are usually in dispute. I’ll get to the best evidence rule a little later.

Medical evidence, X-rays, MRI’s etc. Juries eat these things up. They believe that tests are the gold standard in evidence. And they are to some extent, but they are often misread, or they are inconclusive. So, like other types of evidence, medical evidence in the form of test results are vulnerable to attack. Also, take note that you are not entering the actual MRI or X-ray, but the test result which is a written document. Call the doctor who recorded the result. The actual picture does us no good, but I’m sure there’s always a jury member who fancies himself a radiologist who wonders why the actual picture has not been admitted.

The foundation for medical test results include: The witness is qualified to testify as to the validity of the process, the underlying theory is valid, that is, the theory is both generally accepted as valid by other experts in the field, the theory has been empirically verified, the instrument used was reliable, the machine itself is generally accepted as reliable and has undergone proper inspections and validations, the witness is qualified to interpret the results, the instrument was in good working order at the time of the test, the witness is qualified to conduct an interpret the results, the witness used the instrument to conduct the test, the witness used proper procedures, and finally the witness testifies to the results of the test.

Now, concerning the best evidence rule, note up front that it only applies to writings and only if the terms at issue. It is only applicable if the writing is offered to prove it contents. If you using it to cross – examine, the issue is credibility and therefore you don’t have to worry about establishing the writing as the best evidence. The foundation for the best evidence rule is: the witness recognizes the writing, the witness testifies as to how she is familiar with the writing, and the witness testifies it is the original.

Expert testimony. Many trials boil down to a battle of the experts. If you’re a PI lawyer, you will most certainly be using at least one doctor if not several others with an additional expert to testify to the appropriate standard of care. Try to choose an expert who is pre-eminent in her field and who has testified for both the defense and plaintiff. You want your experts to seem as objective as possible. Also I generally try to use board certified doctors.

Choose an expert who has had trial experience. Even top notch experts have trouble standing up to a good cross examiner. Show them how to stand their ground by questioning opposing counsels assumption in his cross and drill them with likely cross examination questions so they know what to expect and can prepare for it. Also, make sure she testifies to firsthand knowledge if possible. If you are trying a premises liability case, and the issues are standard of care and its breach, the expert should actually visit the site. If you are putting on the medical case, the doctor should have actually examined the patient, rather than simply relying on the patient’s chart as their source of information.

If you can, stipulate to the expert’s qualification unless you want the jury to hear what a hot shot your guy is. The foundation for an expert’s opinion is: The witness has acquired degrees from an educational institution in the field (you don’t want an eye doctor for an ortho case, use a chiropractor for a chiropractor case, etc.), the witness has specified training, she is licensed to practice and has done so for a significant amount of time, the expert has taught in the field, she has published in the field, she belongs to a professional organization or organizations, and she has previously testified as an expert on the subject.

As far as the actual MRI, CT Scan or X-Ray, I do not enter it into evidence as the jurors are not radiologists, even if you did enter it, you can bet some jurors would try to interpret the results.