Articles

With it being almost three years since People v. Sanchez, 63 Cal. 4th 665 (2016), most lawyers are at least familiar with its holding. Indeed, prior articles on this blog have summarized the case and explained how to question expert witnesses post-Sanchez. But with familiarity, certain details can be overlooked. Take Michael Jordan. The most casual fan has an instant memory of his storybook career with the Bulls, the multiple championships, even his...

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...

We have all been there. You're taking a deposition and your opposing counsel channels a $10,000 Pyramid contestant coaxing his teammate to say, "Every conceivable objection under the sun?" These attorneys act like their year-end bonus is based on the number of objections lodged after each question. While it can be annoying, deposition objections are mostly white noise for the examining lawyer. However, there is value in discerning which objections matter, and which objections...

"Like a house built on sand, the expert's opinion is no better than the facts upon which it is based." This famous line from Kennemur v. State of California, 133 Cal. App. 3d 907, 924 (1982), can be found in virtually every California motion to exclude an opponent's expert witness. And it is typically cited for one of two arguments:

There is the junk science argument. This argument seeks to show the expert's reasoning or methodology is unreliable. It is used against the expert...

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...

"Nobody ever went to a ballgame to see the umpire," Chief Justice John Roberts declared in the opening remarks to his own confirmation hearings. He is right. It would be a head-scratching moment to go to Dodger Stadium and at the end of a complete game shutout, see Clayton Kershaw high-five his teammates ... and the home plate umpire?

The same goes with jury trials. Advocacy comes from the lawyers. While judges can examine witnesses, they are not to put their thumb on...

"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...

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...