National Business Institute

Evidence and Expert

Testimony Best Practices:
Supporting Your Case
Strategies for Working
with Evidence at Trial

Gerry Schulze
BAKER & SCHULZE

501-537-1016
gerrysch@yahoo.com
 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
Federal Rule
 (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
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 by
knowledge, skill, experience,
training, or education
 may testify thereto in the form of
an opinion or otherwise
 , if
Federal clarifications
 (But the same rule really applies
everywhere)
 (1) the testimony is based upon sufficient
facts or data
 (2) the testimony is the product of
reliable principles and methods and
 (3) the witness has applied the principles
and methods reliably to the facts of the
case
Basis of opinion testimony
 Rule 703
 Information provided at the (trial or)
hearing
 Hypothetical questions
 If of a type reasonably relied on by
experts in the field—it needs not be
admissible in evidence:
 We’re mostly talking about hearsay
Experts can rely on
evidence not otherwise
admissible
 That doesn’t mean they can be a
conduit for that evidence.
 You can’t get hearsay into
evidence by asking an expert if
she’s run across it in investigating
the case.
The Federal Rule makes
that clear—sort of.
 Facts or data that are otherwise
inadmissible shall not be disclosed to
the jury by the proponent of the
opinion or inference unless the court
determines that their probative value
in assisting the jury to evaluate the
expert's opinion substantially
outweighs their  prejudicial effect
Ultimate Issue
 Except as provided in subdivision
(b), testimony in the form of an
opinion or inference otherwise
admissible is not objectionable
because it embraces an ultimate
issue to be decided by the trier of
fact.
Federal Addition
 (b) No expert witness testifying with
respect to the mental state or condition of
a defendant in a criminal case may state
an opinion or inference as to whether the
defendant did or did not have the mental
state or condition constituting an element
of the crime charged or of a defense
thereto. Such ultimate issues are matters
for the trier of fact alone.
Rule 705
 Rule 705. Disclosure of Facts or Data
Underlying Expert Opinion
 The expert may testify in terms of opinion
or inference and give reasons therefor
without first testifying to the underlying
facts or data, unless the court requires
otherwise. The expert may in any event be
required to disclose the underlying facts or
data on cross-examination.
Rule 706
 The court can appoint an expert.
 “An expert is an individual who was
not present when the “incident”
occurred, but for a healthy fee will
happily imagine what it was like and
how it happened.”
 Justin P. Murphy, quoted in Jeffrey G.
Soper, Effective Expert Witnessing Taylor
& Francis (2007)
Value of Experts
 Add information
 Add understanding
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 rendered
it unreasonably dangerous . . .
Mental Capacity
 Probate/Guardianship
 Questions of mental capacity
 Do legal definitions of competence fit
well with what scientists believe about
menta
 Diminished Capacity in criminal
cases
Criminal cases
 CSI! Bones!
 I don’t do criminal law, but I read about it.
 My wife watches Bones on television. My mother-in-
law watches CSI. I can’t help seeing it.
 Somehow I doubt they have a computer that
generates floating three-dimensional models at the
Arkansas Crime Lab.
 Do they?
 I suspect, as an outsider looking in, that this is
an area in which underfunded scientific
evidence creates serious risks of error.
 Handwriting identification.
Investigation
 Fire investigation
 Accident reconstruction
Standards written into the
law
 Reasonable Degree of Medical
Certainty or Probability.
 This jumble of words only means
something because judges and
lawyers says it does.
 What does it mean, then?
Reasonable Degree of
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 to
a medical opinion has frequently converted this aspect of a
trial into a mere semantic ritual or hassle. The courts have
come to recognize that the competency of a doctor's
testimony cannot soundly be permitted to turn on a
mechanical rule of law as to which of the two terms he has
employed. Regardless of which term he may have used, if
his testimony is such in nature and basis of hypothesis as
to judicially impress that the opinion expressed represents
his professional judgment as to the most likely one among
the possible causes of the physical condition involved, the
court is entitled to admit the opinion and leave its weight to
the jury.
 Norland v. Washington General Hospital, 461 F.2d 694, 697
(8th Cir. 1972).
Proximate Cause
 The law frequently uses the expression
“proximate cause,” with which you may not be
familiar. When I use the expression “proximate
cause,” I mean a cause which, in a natural and
continuous sequence, produces damage and
without which the damage would not have
occurred.
 This does not mean that the law recognizes only
one proximate cause of damage. To the contrary,
if two or more causes work together to produce
damage, then you may find that each of them
was a proximate cause.
Proximate—the 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, or
following; especially relating to or being
a proximate cause.“
 Merriam Webster Online Medical Dictionary.

  www.merriam-webster.com/medical/proximate  
Arkansas Law
The proximate cause need not be
the last or nearest one.  State
Farm Mut. Auto Ins. Co. v. Pharr,
305 Ark 459, 808 S.W.2d 759
(1991).
Medical Usage:
 Proxmate means exactly, “last or
nearest.”
Example
Merriam Webster Unabridged Dictionary s.v. proximate
David Mellinkoff, The
Language of the Law (Little
Brown & Co., 1964)
Statistics
 We don’t think in a statistically
logical fashion.
 What bothers you more:
 Esso charges you a surcharge to use
your credit card.
 Lion gives you a cash discount if you
buy your gasoline there.
Hypothetical
 Imagine that the United States is preparing for
the outbreak of a disease from abroad, which
is expected to kill 600 people. Two alternative
programs to combat the disease have been
proposed. Assume the exact scientific
estimate of the consequences of the programs
are 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 probability
that no people will be saved"
Which should we try—
show of hands
 There’s no right answer here

PROGRAM A __________

PROGRAM B __________
Different Hypothetical
 Imagine that the United States is preparing for
the outbreak of a disease from abroad, which
is expected to kill 600 people. Two alternative
programs to combat the disease have been
proposed. Assume the exact scientific
estimate of the consequences of the programs
are 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 600
people will die"
Which should we try—
show of hands
 There’s no right answer here

PROGRAM 1 __________

PROGRAM 2 __________

Credit for these questions to Amos

Tversky and Daniel Kahneman.
Linda
 Linda is 31 years old, single, outspoken,
and very bright. She majored in
philosophy. As a student, she was deeply
concerned with issues of discrimination
and social justice, and also participated in
anti-nuclear demonstrations.
     Which of these two options is more
probable:
 (a) Linda is a bank teller, or
 (b) Linda is a bank teller and active in the
feminist movement.
Motions in Limine
 Motions in limine are for a specific
purpose: to prohibit mention of
some specific matter, such as
an inflammatory piece of
evidence, until the admissibility of
that matter has been shown out of
the hearing of the jury.
Motions in Limine
 What they’re not for:
 To require a party to try the case twice

That’s 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 that
broadly 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 happening
again.
Multi-part motions in
limine have become the
norm
 You need to read them, reply to
them, and for the most part, object
to them.
 I never agree to a motion in limine
if I can’t figure out what evidence
the other party wants to exclude.
Irrelevant Motions in
Limine
 Boilerplate collected from previous cases.
 Asked the court to direct me not to tell the jury that the
defendant was deposed twice—he wasn’t.
 Asked the court to direct me not to tell the jury that the
defendant had been sued before—he hadn’t.
 Asked me to direct the court not to mention the fact that
the defendant had been obstructionist in discovery.  I know
you won’t believe this, but this particular defendant had
been not actually been obstructionist in discovery.
 Asked the court to direct me and my witnesses not to
mention insurance in any way—in a direct action against an
insurer.
 Asked the court to direct me and my witnesses not to refer
to any communications for which Rainey asserted a
privilege.  We did not intend to do so, because to our
knowledge there wasn’t a Rainey associated with the
lawsuit.
Generic Motions in Limine
 No hearsay
 No expert testimony without laying
a foundation
 Etc.
Using evidence to
influence the jury
 The “two case” analysis:
 The “judge case,” proving enough to be
allowed to go to the jury and get the
instructions you need.
 The “jury case,” convincing the jury to find in
your favor.
 In theory, the evidence that achieves the
former should be identical to that which
achieves the latter.
 In the real world, that’s not what happens.
“Magic Words”
 Magic Words are almost part of the
“judge case”
 The Arkansas courts continually repeat
that magic words aren’t required.
 But they’re not forbidden either.
 And sometimes, they are, as a practical
matter, required. Otherwise, your expert
may not “judicially impress that the opinion
expressed represents his professional
judgment as to the most likely . . . . “
Evidence comes from
witnesses
 “Consider the source”
 It’s a natural human tendency.
 The strength of your evidence is
going to depend on how the
factfinder evaluates your source.
 We’re going to talk about how to
make your expert more worthy of
belief.
Let the evidence come
from witnesses
 Rules against leading help
 Be aware of the role of television.
 To the greatest extent possible, make
you expert’s testimony flow.
 The best expert is somewhat of a
teacher.
 Models and illustrations help.
Powerpoint presentations help.
Tools of Experts
 Powerpoint
 It can replace the old flip chart
 Although you still may want to use an old
flip chart in some cases.
 Photographs
 For accident scenes, a satellite shot is
almost always available these days.
Thanks to Google Earth
 There are all kinds of resources out
there.
Computer Graphics
 “Drawings/Computer Graphics. Nothing
sticks in jurors' minds as much as strong
visualization. Well-thought-out graphics can
allow you to break down complex processes
into simple, understandable elements.”
 Matson, et al (in the materials)
 Your expert probably could not justify the
computer assisted reenactment I just
produced, but he or she might be able to
produce a plausible one.
Highlight Documents
 4. Highlighted Critical Documents. Media
professionals can take an important document
and highlight a phrase or a portion by dulling
the remainder of the page and showing a
magnifying glass (or some other technique) to
expand what you want the jury to see. This
approach should be commingled with other
multimedia to relate evidence to your opinions
in a visual way.
 Matson
 Call-outs
Did this
incident
disrupt the
witness’s
lifestyle?

The
witness
missed
his tee
time.

Not from Matson

 5. Models. Scale models can be costly but
are potentially worth every penny. Always
consider how your opinions can be enhanced
if you have a scale model available. Make
sure that sufficient fidelity to reality is
maintained, or the other side may object and
the judge may agree, in which case your
model will not be allowed in the courtroom.
Also, remember that the other side can use
your model to demonstrate its own points.
 Matson
Video and Animation
 I’ve quoted from Matson, et al on
this too in the materials. The sky’s
no longer the limit. There is no
limit except what fairly and
accurately represents the truth.
Any questions?
 Let’s review the “framing” questions
earlier:
 Of the disease problems:
 Programs A and B
 A
 B
 Programs 1 and 2
 1
 2
Programs A and 1 are the
same. Programs B and 2 are
the 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"
Linda
 Which of these two options is more
probable:
 (a) Linda is a bank teller, or
 (b) Linda is a bank teller and active in the
feminist movement.
 It’s possible she’s not active in the
feminist movement. Both options
assume she’s a bank teller.