Articles

Trials are often described as a search for truth. In practice, however, they are structured presentations of evidence shaped by rules that determine what the jury is allowed to hear.

For trial lawyers, understanding those rules is only the beginning. The real skill lies in recognizing how evidentiary decisions influence the narrative that ultimately reaches the jury.

Every ruling on admissibility affects the story being told in the courtroom.

Some evidence strengthens the narrative of one sid...

Text messages are the defense’s favourite exhibit.

They look casual. Informal. Harmless. A few words on a screen rarely feel like misconduct when viewed in isolation. That is exactly why they are dangerous.

Because harassment does not live in individual messages.
It lives in patterns.

And text messages are one of the clearest ways jurors see those patterns once you show them how.

The Mistake Lawyers Make With Text Evidence

Many lawyers introduce text messages as corroboration. Something to ...

“Nobody touched her.”
“No sexual comments were made.”
“There was nothing overtly sexual.”

When the defence says this, many lawyers panic slightly. They start worrying about labels. About definitions. About whether the jury will expect explicit conduct.

That concern is misplaced.

Because harassment cases are rarely won on sexuality. They are won on power, intrusion, and persistence.

And jurors understand that instinctively.

The Defense Is Arguing the Wrong Question

When the defence says nothi...

In law school, we are taught that hearsay deals with out of court statements. Both the Federal Rules and California's Evidence Code define hearsay as a "statement" that is "offered to prove the truth of the matter" either "stated" (California) or "asserted" (Federal). And on most occasions, hearsay involves a "statement" as that term is generally understood. In other words, most hearsay evidence involves instances where a party or witness either said or wrote something. As a result, practitioner...

Is social media good or bad? Is it the best way to communicate or the worst? It is, of course, neither and both. Never before have non-celebrities or non-journalists been able to reach millions and display what would otherwise be undiscovered talent. And yet we also find material on social media that falls short of most bathroom stall graffiti standards. Consuming social media is like ordering the seafood tower at a new restaurant. If that first bite of shrimp is warm, leave the plate alone and ...

A few months ago, the Los Angeles Times ran a story about a lawsuit recently filed against Steven Tyler. The plaintiff alleges she met the Aerosmith frontman backstage in 1973, and she chronicles their relationship that evening and thereafter. According to the plaintiff, Tyler talked her into joining him on the road (after she finished her sophomore year in high school) and "persuaded [her] into believing this was a 'romantic love affair.'" The complaint is remarkably detailed given the passage ...

Back in 1995, the LA Times ran an article about O.J. Simpson's defense team's "assault on the [Los Angeles Police] department's ability to use sophisticated science to solve crimes." One its expert witnesses walked the jury through powerful demonstrative evidence detailing DNA contamination in its crime lab. Beyond the Simpson case, the article quoted a defense attorney who said the witness' testimony "will provide ammunition for years to come for lawyers defending poor clients who don't have th...

When it comes to hearsay exceptions in California, litigators will instinctively (and appropriately) consider the code sections found in Division 10 of the Evidence Code (i.e., Section 1200 et seq.). Party admission? Declaration against interest? Spontaneous statement? In addition to knowing the enumerated exceptions, trial lawyers must know an as-important hearsay exception found outside this list: the rule of completeness. Evidence Code section 356 provides that "[w]here part of an act, declar...

"Be sincere, Be Brief, Be seated.

— Franklin Delano Roosevelt

Too often in jury trials, attorneys mistakenly think getting evidence admitted is a dry and mechanical process separate and apart from the task of persuasion. Closing argument, the theory goes, is when it will all come together. Experienced trial lawyers know how misguided this approach can be. They understand that every stage of trial should have the same objective: to argue your case to the jury. 

One of the most important metho...

Must documents always be produced to proof their contents? What if the documents are lost or missing? California's secondary evidence rule (Cal. Evid. Code §§ 1521 - 1523) provides a commonsense approach that begins with a simple general rule: "The content of a writing may be proved by otherwise admissible secondary evidence." Cal. Evid. Code § 1521(a). But this general rule of admissibility does not apply if the court finds either (1) a genuine dispute exists concerning material terms of the wr...

A common misconception in jury trials is that judges only decide legal questions and juries decide factual questions. The reality is that before a jury sees or hears any evidence, the judge first decides what the jury will see and hear. And to make those determinations, the judge answers a host of factual questions. A more precise way to describe the factfinding roles of a judge and jury is as follows: Judges determine preliminary facts, and juries decide adjudicative facts. Knowing the differen...

At a recent deposition, I intended to ask the plaintiff about some assertions made in a pretrial settlement demand letter. Unfortunately, my opposing counsel had different intentions: 

MR. SUGDEN: I'm handing you what's been marked as Exhibit 25. 

(Whereupon Exhibit 25 was marked for identification, a copy of which is attached hereto.)

MR. SUGDEN: Have you seen this letter before today? 

OPPOSING COUNSEL: Objection. This is a settlement communication, and based on that I'm going to instruct ...

Suppose you had to prove (in litigation) where you were on a specific date. And suppose you had zero independent memory of where you were. There are a number of things you could do to jog your memory. You could look at your phone to see if there are any pictures from that date. You could look at old text messages, emails, or calendar entries to see if they provide some reminder of where you were on the date in question. Now let's suppose you found a cryptic text exchange with a friend that said ...

When it comes to hearsay, one method of spotting objectionable hearsay is to consider whether the probability of the evidence being true (or not true) turns on the credibility of someone who cannot be cross-examined. As Justice John Marshall wrote in Queen v. Hepburn, 7 Cranch 290, 296 (1813), "[i]ts intrinsic weakness, its incompetency to satisfy the mind of the existence of fact, and the frauds which might be practiced under its cover, combine to support the rule that hearsay evidence is total...

When it comes to privileges and evidence, determining when a waiver has occurred can be tricky. It's a little like knowing when an egg is boiled. While some like runny yokes, others want a virtual powdering to soothe any fears of Salmonella. Judges of eggs are just like judges of law: they're human. What may be a waiver to one may not be a waiver to another.  

Fortunately, case law provides some guidelines for attorneys to at least understand how waivers should be analyzed. Fish v. Superior Cou...

When it comes to expert witnesses, there can be a tendency to limit consideration to paid, third-party experts. And while these professional expert witnesses are the most common types of expert witnesses in civil litigation, they are certainly not the only types of witnesses who can provide expert testimony.

A simpler way to think about expert witness testimony is to first understand what makes expert witness testimony unique. It is not that the witness is compensated. It is not even that the w...

Email. Where office workers are routinely carpet-bombed with everything from complaints about over-cooked popcorn in the office microwave to requests for "an important project before you head out for the long weekend." And in the case of business lawsuits, it is where the smoking guns are often found. Along with flying bullets. And a confession. It was not that long ago that Apple and Google were accused of having a no-hire agreement with each other. Proving the case was made fairly simple when ...

When questioning witnesses, the principle of impeachment simply means the introduction of evidence that may cast doubt on the credibility of the witness or the validity of the testimony. There are countless ways to impeach a witness. California Evidence Code section 780 identifies the most common methods, but they are expressly non-exhaustive: “[T]he … jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of...

When it comes the rules of evidence, there can be a big difference between a "policy" and a "habit" (or "custom," when it comes to a business entity). A decent (albeit nonlegal) illustration of the difference is the late Howie Sugden.* Howie had a policy of fighting anyone during pickup hockey games who, in his opinion, "played cheap." So while there was a decent chance his gloves might come off whenever he took the ice, it wasn't necessarily guaranteed. But when it came to his smoking, that was...

When it comes to impeachment—attacking the credibility of a witness—lawyers sometimes fail to consider whether the evidence is substantive or pure impeachment. It can lead to an exchange like the following:

Judge: Are you offering this evidence as pure impeachment or to establish its truth?

Lawyer: Yes.

Knowing whether impeachment evidence may also be substantive is important. Substantive evidence “is offered to establish the truth of a matter to be determined by the trier of fact.” Chiasson ...

We recently filed a motion to dismiss a spurious sexual harassment complaint. In opposition, the plaintiff included a request that the court take judicial notice of various articles chronicling the #metoo movement. In response to our argument, which focused on the facts and law, the plaintiff asked the court to "judicially notice" that "[m]illennials were sheltered from abusive treatment as kids ... [but find themselves] put in place by Boomer and [Generation] Xer managers ...." Why leave the re...

Referring to the "best evidence rule" in California litigation is a little like calling The Cosby Show the most family-friendly option on television. While there was a time that such assertions were valid, saying so today just sounds uninformed and out of touch. The best evidence rule ended up having so many exceptions that it was abrogated and replaced by the "secondary evidence rule," codified in California Evidence Code section 1521, et seq. The vast majority of practitioners in California kn...

Character evidence is similar to hearsay in that there is a general rule of inadmissibility followed by so many exceptions that they often gobble up the general rule. But what can make character evidence trickier is that even when it is admissible, there are specific rules about the type of character evidence that is allowed. This article provides a road map so that trial lawyers can know the what, when, and how of character evidence.  

What is Character Evidence?

"Although the term 'charac...

"Objection. Lacks foundation." It is among the more mundane objections heard during witness examinations. With lay witnesses, there can be a temptation for practitioners to give it little attention. Especially during depositions, where objections are supposed to be to the form of a question, there can be a tendency to ignore foundation issues altogether. But neglecting foundation with lay witnesses is dangerous. Testimony a jury should hear can be excluded because the examining attorney cannot n...

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 Uber and its former employee Anthony Levandow...

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 in courtrooms for years. 

In...

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 ImCone (and a Merrill Lynch cli...

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 ordered him to pay more than $25 million to the victims' f...

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 documents should never be admitted without a witness t...

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 discouraging results; desired do...