Articles

Uber's Not So Good (and Nonprivileged) Investigation Report

Feb 01, 2018

As Uber and Waymo start trial over Uber's alleged theft of Waymo's self-driving technology, Uber will have to deal with an exhibit it never wanted Waymo to see—a third party report investigating various wrongdoing by the very employees Waymo accuses of various wrongdoing. Uber contended the report could be withheld from discovery. The Court decided otherwise and ordered its production. 

Waymo—once a Google project and now an Alphabet subsidiary—sued...

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#MeToo and the Evidentiary Rules of Third Party Witness Accusations

Jan 16, 2018

2017 revealed that countless people (men, mostly) in powerful positions used their authority to sexually harass or assault subordinates (women, mostly). Time Magazine's "person of the year" were the "Silence Breakers." Oprah Winfrey gave an impassioned speech at 2018's Golden Globe awards on the topic, which led to talk of a potential presidential run. And while #MeToo became a movement thanks to an Alyssa Milano tweet, the "me too" legal doctrine has been litigated...

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The Michael Jackson Trial: The Art Of Proving A Defense

Jan 03, 2018

Great trial lawyers have not simply mastered the rules of evidence. Great trial lawyers understand human nature. While expertise in evidence is necessary to execute the mechanics of a trial, understanding people is necessary to persuade. Failing to appreciate the human element of trials results in bad advice and bad advocacy. 

Take, for example, the burden of proof. In a criminal trial, the prosecution must prove its case beyond a reasonable doubt. Plaintiffs in civil...

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Martha Stewart, the Merrill Lynch Assistant, and the Allowable Inferences of Implausible Testimony

Dec 15, 2017

When viewers tune into VH1's Martha & Snoop's Potluck Dinner Party these days, most may not know (or have forgotten) that Martha Stewart served five months in prison for lying to federal investigators. The case involved Stewart's sale of 3,928 ImClone shares on December 27, 2001. That day Stewart's broker, Peter Bacanovic of Merrill Lynch, was on vacation when he received a call from his assistant, Douglas Faneuil. Faneuil told him that Sam Waksal, the chairman of...

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O.J. Simpson and the Hearsay Rule

Nov 30, 2017

Many of us have vivid memories of the O.J. Simpson criminal trial. Judge Ito became a household name. Millions watched Simpson struggle to try on the famous gloves, and many of us remember where we were the moment the verdict was read. What is slightly less well known is the civil trial against Simpson—following his acquittal—for the wrongful deaths of Nicole Brown Simpson ("Nicole") and Ronald Goldman. The jury found Simpson liable, and...

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Applying Evidence Code Section 1271 to Certain Documents

Nov 17, 2017

A prior article examined the business records exception to the hearsay rule, and it specifically looked at the language and case treatment of Evidence Code section 1271. This post explores the application of Section 1271 to business records that are common in litigation: third party records, medical records, and investigation reports.    

Third Party Records (e.g., Third Party Invoices): The elements of Section 1271 suggest that third party...

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Can An Expert Relay Hearsay Evidence To The Jury?

Oct 30, 2017

The California Supreme Court recently answered this question in People v. Sanchez, 63 Cal. 4th 665 (2016) as follows: No—not if the hearsay communicates case-specific facts. While an expert may assume the existence of case-specific facts to explain his or her opinion, the expert cannot relay such facts and treat them as true. Sanchez is important for trial lawyers because it restores the distinction between general background hearsay (which can be relayed...

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Examining Expert Witnesses in the Post-Sanchez Era

Oct 05, 2017

In People v. Sanchez, 63 Cal. 4th 665 (2016), the California Supreme Court decided that an expert witness cannot relay hearsay that communicates case-specific facts to the jury. This post examines how trial lawyers can and should examine expert witnesses in the post-Sanchez era. 

As a starting point, practitioners should master familiarity with Evidence Code section 801. Section 801 sets forth the allowable limits on which expert witnesses may offer opinions as well as the...

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Understanding the Business Records Exception to the Hearsay Rule

Sep 30, 2017

A deep understanding of the business records exception to the hearsay rule is essential in all stages of litigation—not just trial. Depositions are fertile grounds for advocates familiar with the rules to skillfully probe a witness and establish (or, if opposing the record's admissibility, debunk) the preliminary facts to admit a business record (including the document's admission for pre-trial motions). Likewise, misunderstanding this hearsay exception can cause...

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