How to Put Everything You Need to Win Into Evidence

hi welcome to trial school my name is rich newsome and today's program is about how to put everything into evidence that you need to win your case this is a very practical presentation by the great jim perdue and doris chang from san francisco i think that you're going to find that if you have questions or maybe you're a little rusty on how to get documents how to overcome objections to actually put evidence in for trial this is going to be extremely useful for you and if you like the presentation please subscribe hit like and if you're a trial lawyer who only represents people go to trialschool.org and join it's completely free and there's a lot of secret non-public information on there that can really help you in your practice so without further ado hope you enjoyed today's presentation with jim perdue and with doris chad thank you [Music] good day i'm jim perdue i'm here in houston texas with a law firm purdue and kid and we're really excited about today's presentation in trial school along with doris chang i am honored to bring to you our topic for this week which is putting everything into evidence at trial that you need to win and more the goal of the program today is to introduce lawyers of all sets of skill who have different levels of experience to the fundamentals of evidentiary foundations the introduction of evidence at trial perhaps some persuasive tools to put into your arsenal in the doing of things that we may think of as kind of rudimentary or basic but may offer some extra opportunities to give you something to think about but at the same time do kind of an overview and a refresher on the law of evidence the rules of evidence that affect directly the ability to get evidence in and admitted and the predicates that relate to those evidence and what you need to try a lawsuit it's not that complicated right we try cases of a variety of spectrum and a variety of complexity from what may be a simple auto pedestrian case to what could be a very complicated medical malpractice matter but whether wherever you lie in that spectrum right the evidentiary challenges and issues all rest in kind of a fundamental grounding of the basic things that we need documentary evidence pictorial evidence and then evidence related to the defendant and then lastly a correlation which will be damages so what doris and i want to bring you today is kind of an overview that is not a simplification but in a way for you to contextualize the evidentiary issues we each face at trial and then what we're going to do out of that is transition into individual vignettes regarding kind of the areas of evidence and then the areas of evidence that exist within each of those so as you'll see we'll start moving into actual pragmatic demonstrations and lessons for you on each of the elements of evidence hopefully kind of cover as much of this the waterfront as we can on the evidence we use at trial through actual real-life examples and then at the end we're going to transition to some lessons i think both doris and i have learned over the years for trial and maybe help you with some of the persuasive uses of evidence visuals powerpoint and things as we get towards the end of our time so with that i look forward to presenting with doris today and we're glad to have you here good afternoon i'm doris chang and really happy to present here with jim perdue let's talk about some of the things that we see in our personal injury cases and we think that if you can get in three pieces of evidence you can get in everything and those three things are if you can get in a diagram a photograph then you can get an animation and you can get in um simulations if you can get in a business record you can get in all of your medical records you can get in uh all of the documents from your defendant however whatever type of business records that they keep if you can get in real evidence then you can get in most of your case and so some things that we want to talk about today some are demonstrative here is a heart that we use for talking about the body system if we're in a medical malpractice case or even if we're just in a personal injury case we have training manuals that we've gotten from the bus company directly and there are times when we actually want to use those words against them some of these are admissions some are these are just business records but if you can get these things in you can get in anything any written document pretty much that the defendant has given you or that you have forced them to produce medical records that you've gotten from you know the treaters we can get all of those in just by laying easy foundations and as i said real evidence things that we can touch and feel and we'll talk about how to get in the actual evidence or uh a similar piece of uh evidence so in cases where it's maybe just demonstrative as opposed to the real thing and we'll also talk about how you get this in with chain of custody in mind and we'll make it really simple so let's start talking about one of the simple things that we can do and before we get into any of the concepts of advocacy or persuasion or how to use it one of the very very basic things that we all need to be able to do is just move it in and there are some simple dance steps for that make sure you always have a goal for your evidence there are three reasons to get in physical pieces of evidence one it's persuasive in your storytelling so we're going to use it to actually move your story along number two it satisfies a an element that you need sometimes the admission comes out of the piece of evidence and not out of a witness's mouth and so if you need that to actually prove your case that's another reason that the evidence is coming in and the third reason is let's corroborate witnesses so we know that show and tell is much more effective than just tell so if we can have uh the doctor describe how the heart works while we're looking at the heart itself we know it's much more persuasive and it helps to tease up the image that the doctor is describing and i think particularly with experts we always try to use as many illustrative documents as possible as many blow up charts as many videos and we'll take a look at a video later that we can use just to demonstrate exactly a process that the doctor is talking about for instance so those are the three main reasons that we're going to use evidence and if you can't fit into one of those three things you don't need it in your case right so either we're doing it as part of the persuasive storytelling as i said to help move your story along we're trying to satisfy an element of your case or we're trying to just help tell the story to through the witness we're trying to corroborate what the witness says let's talk about uh how to physically get in the evidence now as i said this part is mechanical this is not anything that is uh any great shakes in fact it's it's really rudimentary and if you hit these steps the judge is going to let in your evidence and there are magic words for it so the first thing that we need to do is make sure that the evidence is marked now in this day and age everybody starts to pre-mark i think in the age of our pandemic we're going to pre-mark evidence as much as we can to save time in the courtroom but also to minimize the amount of touching of different objects so if we're live in the court and something hasn't been marked we need to physically have the clerk put a sticker on it and mark it and as you can imagine we can all do that before in advance so if something is already pre-marked meaning you've already decided with your opposing counsel i've got numbers one through 500. my opposing counsel has numbers uh 1 000 through 1 500. and then i so i have my for instance my helmet this is exhibit number 57 and i have exhibit number 57 this has been pre-marked and the first thing i'm going to say before i do anything is your honor i have in my hand what's been pre-marked as exhibit number 57 for identification and i mentioned for identification this is probably jurisdictional but in many places if it has not been admitted into evidence yet it's still for identification purposes and that's the tagline so i have in my hand what's been pre-marked as exhibit number 57 for identification now the next step in my dance step and and jim let's show the next slide this is generally what a courtroom might look like so if we can just for a moment have in mind like this is uh the playbook and here's where the jury might be seated here's where council table is where the judge is and the witness and think of this as the magic triangle for those of you who are basketball lovers text winters lovers and bill jackson lovers the magic triangle is after i've introduced the piece of evidence that i have in my hand i'm going to show it to opposing counsel and i physically walk over to opposing counsel and i show it to them and this is really for credibility i want to make sure that the jury doesn't think i'm hiding anything i don't want the judge to think i'm hiding anything and i want my opposing counsel to know that we're being upfront so they have a chance to examine it and if they've already got a copy of it because perhaps we're talking actually about you know uh documents that have been pre-marked they may already have a copy at council table but i like the show of doing that and then your honor may approach the witness as i said right now in the phase of the pandemic what will likely happen is that you're not going to be able to approach the witness they'll either have a set of exhibits with them at the um at the stand and you can just direct them to turn to that page but if we're live in a courtroom and we're able to actually approach then that's the other arm of the triangle we all go up to the witness we give them a copy or of the thing and then we lay it down so that they have it and then generally let's walk away from the witness and that's the other arm of the triangle come back to your questioning place because what will ultimately happen is that the witness will look at whatever exhibit you've given them and you'll create space between you and the witness by actually walking away and turning to look at your witness and you want to do that because we want the jury to still see the witness if we hover in front of the witness with the exhibit what happens is there's an intimate dialogue between you and the witness and now you've excluded the jury so we want to that's the magic triangle so in that in that dance that's described the the challenge that lawyers sometimes get intimidated by is the rules of evidence and the foundation necessary to lay the predicates to get that in do not be intimidated by the idea of grabbing an objection an objection is part of the trial all your work sometimes the objection can add to the persuasive effect all that you need to do is to understand some fundamentals whether regardless of how your rules of evidence are set up in the individual state almost all evidentiary rules across the country tailor in some form or fashion to the federal rules authentication being the first predicate is the thing what it purports to be that's found in uh federal rule 901 and the very basics of uh the general concept of authentication and then uh the supplemental uh kind of more distinct ones in 901b1 or 901b4 which allow you to authenticate an individual piece hearsay which confounds some people if it's just a matter of cooling your brain while you're in the heart of trial but hearsay is not a burden when it comes to the basics of evidentiary foundations so all you have to do is remember the basics of hearsay how it relates from rule 801 and then recognize there are massive amounts of evidence that are relevant to what doris has laid out being the three basics that aren't even hearsay at all a prior statement is not hearsay defined in the rule a statement by the party opponent which is perhaps one of the most key things that you're dealing with the drop is not hearsay it is an exception not to the exceptions within the list in 803 but literally not within the definition before um according to 801d then you have the exceptions that while our are here say they're an exception to the general rule so in 803 and the key ones to remember are really one through six 803 one through six six gets you to business records and it qualifies as a business record and that's a predicate then that doris and i will walk you through today but these are the basic rules of evidence and then lastly get to the fundamental aspect of relevance now relevance can be kind of overused because relevance is such a low bar in the idea of again what doris talked about already why are you offering what you're offering it better be relevant to the case otherwise you're wasting their time why is the defendant offering what they're offering because if it's purely prejudicial then it can be excluded under four or three but these are just the fundamental rules that we wanted to provide to you and the materials that you'd have everybody kind of learns these but they they are the what underlies then the core of the concept of predicates that doris is going to talk about so now let's talk about actually getting in the foundation you know when we get to the exhibit uh with the witness the first thing is we've got established that the witness actually has some personal knowledge about the item and there's an easy way to get into that which is simply to ask if i'm on direct examination you know what is exhibit number 10 for identification and i'm going to have the witness hold the let's say this is a photograph that we're talking about and the witness actually is not going to show it to the jury yet because it hasn't been admitted but mr jones you're holding exhibit number 10 for identification tell us what is exhibit number 10 exhibit number 10 is a photograph of my daughter evelyn okay so we've now established that he knows what it is and let's now move on uh and just to make the point clear for our uh for our jury how do you recognize exhibit number 10 for identification well i was there in the room when my wife actually took this photograph is that a fair and accurate depiction of your daughter in 2014 yes it is your and i move in exhibit number 10 into evidence and we stop there so once the judge actually admits the evidence now i can show it and so here the magic words for a photograph for a diagram uh we're back to the notion of federals of evidence 901 it just has to be what you purport it to be and so that magic language a fair and accurate depiction at whatever the relevant time is that actually comes from case law and the notion there is we're identifying that it is what we say it is it's a photograph of his daughter and let's say the case is a wrongful death case and he's lost his daughter well we want to get in a picture of it but it has to be what you say it is so it's fair and accurate and it was at the time that she was you know let's say ill with uh the cancer that wasn't appropriately diagnosed okay so as i said if you can get that logic all we're doing is proving in fact that this person has a basis for saying that he knows what that piece of evidence is and that it is what we purport it to be and that it's in and we'll get to you know real evidence because it's going to be the same concept it is what you purport it to be and it's in the same or similar condition but those are our easy steps and once it's in the thing that we cannot forget is as soon as we get it in the jury's interested why did you go through that production of getting it in unless you use it and we've seen too many trial lawyers actually stop short they get it in and then they move on to another topic so the next question or the next thing that we want to do is ask the judge can we show exhibit 10 to the jury and old language style used to be your honor may we publish exhibit number 10. uh we're now getting away from old english and we're just moving into show your honor may we show exhibit 10 to the jury and then we'll have the witness show the exhibit in some instances we may want to have the exhibit passed around maybe it can't be seen very well from far away and so we may want to have copies of it and if you have a jury of 12 then 12 copies plus your alternates maybe you want 14 and then you just have it passed around among the jurors themselves so that's another way to handle that part of it and then we've got to ask some relevant questions to that right because again showing it to the jury is one thing anchor it in making them understand why you're using it three reasons right it's either to move the story along to help tell the story it's to corroborate the witness and what they say or it satisfies an element so we're going to come back to that and talk about like um mr jones tell us where this photograph was taken uh this was at the uh the nicu unit at the stanford lucille packard children's hospital right after we found out about the initial diagnosis how was your daughter doing at the time that you first learned about the diagnosis well this was before things got really bad this was still like what i think of as a happier time at the early start of the process let's talk about how things started to change how did her the color of her skin start to change well uh i would say was almost unrecognizable but she was just ghastly pale let's just stop there so we want to use the photograph as we said to anchor it to something that's relevant in our case so the next area that would qualify as kind of the overview as documentary evidence is emails medical records a variety of things that are kept in the regular course of business and that qualifies then under 803.6 as a business record the predicate today is generally laid by an affidavit of the custodian or the business person but sometimes you have to get it in deposition and then sometimes in a complicated case or perhaps in a simple case you haven't gotten it in the development of the litigation whether by affidavit or otherwise and you need to lay it at trial laying it at trial is no different than the affidavit that exists under 9021 or that's in the rule itself it is the concept of laying verbally with a witness that the document the record of the business is kept as a regular course of the business it is made an entry was made by a person with personal knowledge at or near the time that it was made and that it is a regular part of their business to maintain that record in their files it's a regular practice to keep and make records like this as you can see an electronic medical chart or email communications among staff all qualify within that kind of fundamental predicate of a regular course of business by a person with knowledge at or near the time of events and it is in the businesses course of business to then keep them different states the federal rules texas and other states have a rule that says if a defendant has produced something during discovery it's considered authentic for the purposes of the case right so you're not dealing with an authenticity question as much as simply laying the predicate if it hasn't been done through affidavit with a witness to ask those basic questions and that's all that is required okay so as we talked about if you can get in three different types of uh pieces of evidence here's the last one the foundation for physical evidence and we're back to the notion of it is what you purport it to be and it's in the same or similar condition that if you look at 901 b4 that there's a distinctive characteristic something that's unique about it so we can identify it from anything else so for example here's a helmet right this is the helmet that was actually worn by a plaintiff that had an accident and it's a defective helmet how do we know that this is actually the same one we go through the same steps that you know and and let's say we we want to lead you can lead on foundation so i'm going to give it to my witness and tell them that this is exhibit number 57 for identification and that was the helmet that you were wearing at the time of the accident is that correct that is correct all right and tell us how do you know that's the helmet that you were wearing uh well i remember picking it out and buying it it's got this cool viper logo and i like the colors on it and i can see some of the markings on it that i recognize and show us which marking on there that you recognize there's some serious road rash here on the back uh where i think i hit my head and then some some other white marks here where this the sidewalk collect okay does that look to be in the same condition as immediately after your accident i would say yes okay urinary movement exhibit number 57 into evidence and so what have i done i've established that it's his helmet uh that it again is what we purport it to be and that it's in the same condition now if there's even a question at all about chain of custody right the the whole notion with chained to custody is that uh that half the accident happened let's say two years ago how can we be assured that it's still in the same condition what happened from the time of the accident to today when we brought it to the jury and if there's a real question about that then i need to go through steps to demonstrate that nobody has tampered with it you should believe that in fact it's in the same or at least similar condition and i may need to do that through a different witness because my plaintiff hasn't been in possession of this helmet since the time of the accident and so i may need some follow-up questions and then stop short and bring in another witness who can establish uh that this piece of evidence has been held in a certain place for a period of time right so that's very simple as well and let me just establish the chain of custody right now in a in a short fashion so that you get the idea that all we're doing is preserving the notion that it hasn't been tampered with so a few more questions uh mr jones immediately after the accident uh what was uh done with the helmet well i believe the the paramedics that responded remove the helmet carefully to secure his neck and then it was remained on the scene the officers including myself who were taking all the photographs and documenting the evidence tagged it and took it back as part of evidence that we collected okay thank you we'll stop there and i'm probably going to need another witness after that's like the police department and then whoever's kept it since then to establish that they put it in a pristine place hasn't been as i said you know monkeyed around with in any fashion and that it came here today in the pristine condition so perhaps one of the most important aspects of evidence at trial is the documentary evidence that is embodied in pictures and diagrams that are available regarding a scene an injury however you're dealing the layout even of the physical plant this is the again the same predicate and the laying of the predicate is nothing more than the idea of establishing that the picture is what it purports to be the challenge is the question of the witness's personal knowledge that you're using to lay the predicate and the authentication of the of the evidence you've got versus a basis for their knowledge then the next challenge is the idea of the evidentiary presentation and how far you can take something that is clearly a picture that represents that which it is or something that is less than a picture perhaps a diagram that is a descriptive although visual of what it purports to be both are admissible into evidence if you lay the proper predicate so uh the picture predicate as already has been touched on is relatively simple if you've got somebody with evidence i mean with uh with personal knowledge so um mr galvin can you tell us what that uh is that looks like an aerial image of the intersection with a crash occurred okay we've marked that as exhibit 35. how are you personally familiar with the intersection where the the wreck occurred i was hit by a car at the intersection uh were you on your bicycle in the area where this picture was taken yes sir do you remember it personally from being there yes sir very much um so is exhibit 35 a true and accurate depiction of what the intersection looked at out there at fm 287 on the day that you were hit by this car yes sir it does your honor this time we move exhibit 35 into evidence it that dance need be no more no less now the if there is an objection right there's an aerial image that is not something that is taken from the site you pull an objection of that was taken three months later your honor we don't know that that accurately depicts the day of all that need to be done is then what is called the indicia of reliability that uh goes to it so objection your honor that picture was taken months after the fact and there is higher grass on the sides of the road based on other images um in the months later when these pictures were taken understood your honor so uh mr galvin um you were there that day correct yes sir are there some differences in uh perhaps the sides or the borders of the road that appear to be based on just looking at this picture sure there's minor details that might be different is there any difference in this picture that in any way makes it different or fail to depict accurately the conditions of that intersection on the day you were hit no sir even with the changes that may have happened as grass grew over several months afterwards before this picture was taken does exhibit 35 still represent a true and accurate depiction of the accident scene in the intersection the day it happened yes sir definitely your honor this time we move exhibit 35 so as long as you just as you deal with the addition of reliability um whether the picture be taken two months six months however long later it still represents that is that is all is necessary again a fair and accurate depiction as of the relevant time not necessarily identical but as of the relevant time um so mr kulik i've i've marked exhibit 35 for you can you tell us what this is that is a picture of my pickup truck what it looked like after the crash and after rolling over now you didn't see the pickup truck after the crash you were in the hospital right that's correct um did you have the opportunity to see the pickup truck some several months later yes sir i did um when when they actually returned the pickup truck that was in the wreck to you did it look like this yes sir it did does exhibit 35 fairly and accurately represent the pickup truck as it existed when you finally got to take uh possession although it was totaled when it finally came back into your possession yes sir does exhibit 35 look like the truck when you saw it some several months after the crash yes it does uh given the crash that you were in you understand you were in a four rollover event that's correct you understand that you were hit from the side yes sir and when the insurance what part of me strike that your honor when the company allowed you to get the truck back is exhibit 35 look as the truck looked when you got it yes sir you're at this time we move exhibit 35. now the challenge there on that predicate obviously is the concept that you've got somebody who doesn't know necessarily what the truck looked like immediately after the wreck so the question then is what is it offered for right if this witness is just a person a witness with personal knowledge you have a different question he's just talking about having the truck and getting it back and recognizing it but for example let's say that this was in the file of an expert who did the crash reconstruction now you've got a different issue again predicate is still the same question but it is a slightly different for the purposes that you're using the picture for now dr jones you did an accent reconstruction in this case correct yes i did as part of the accident reconstruction were you able to go do a site visit i was after the site visit were you able to go to the yard where the vehicles that were involved in the wreck were stored yes sir at that site visit was somebody else taking pictures for purposes of the investigation yes sir now you didn't take the picture somebody else was doing it correct correct but did you see the truck on the day of your site visit absolutely did the condition of the truck after the wreck when you were at the site visit have an impact or affect the opinions that you have on this case it did now let me show you exhibit 35. can you tell us what this looks like that's a picture of a mangled pickup truck did you see the pickup truck in this condition on the day of your site visit yes sir i did is exhibit 35 a true and accurate picture of the condition of the pickup truck on the day you were able to inspect it yes sir does the condition of the pickup truck on the day you were able to inspect it directly affect and as form a basis of the opinions you have regarding the crash in this case yes sir your honor at this time we move exhibit 35. so you've got people who may or may not have personal knowledge regarding what's in the picture but that is no different than the predicate it's just a matter of knowing so for example um mr galvin after this wreck uh you were in the hospital for an extended period of time yes sir i was um you had something called an elizaroth procedure are you familiar with that yes sir unfortunately did the doctors make you aware of what that involves yes sir um does that involve some type of external tools and bracing on the leg that was shattered on the right side yes sir did you see that leg at some point in time while you were in the hospital i did let me show you exhibit 11 mr galvin does this look like a picture of your leg as uh it existed in the hospital room some month after this wreck yes sir how long did that tool stay on my whole stay does exhibit 11 represent a true and accurate picture of the condition of your leg while you were in memorial hermann hospital yes sir this time we move exhibit 11. so the dance is is nothing more than that quickly i'll talk to you on diagrams diagrams are not pictorial evidence a lot of lawyers back off on the concept of diagrams because diagrams may not be to scale they may be to scale they may not be a quote accurate depiction of the actual thing but they're a representation of the actual thing diagrams live in a area of evidence that is somewhere less than pictures but more than pure demonstrative purposes and it's important to recognize that so officer whitney you did the investigation of this crash is that correct yes sir as part of doing an investigation do you plot where um the cars were involved in the wreck and then when came to rest at the very end that's correct um exhibit 13 is a diagram of that plotting do you see this sir yes sir um in doing that uh do you do a diagram that is directly on scale it can't be exactly the scale um in doing the diagram for the way that cars move through a wreck like this do you still try for the diagram to truly and accurately depict the car's passage through a wreck like occurred on july 12 2018. yes sir so exhibit 13 officer galvin in doing this investigation was this diagram to scale not exactly but representative does the diagram accurately represent your depiction of the vehicles as they made this crash and then came to final rest yes sir does the diagram represent a true and accurate depiction of the final resting place of these two vehicles after this horrific crash yes sir the honor this time we move exhibit 13. now because diagrams are in this kind of somewhat netherlands sometimes of lacking scale the key is the indicia of reliability like we saw before but let me take it one step further for you on being able to recreate something in the courtroom a lot of times there is a fear of lawyers of different skills and something as basic as an auto case of the concept of things that aren't truly pictorial um is it cummings who's uh who's our crash in dallas um morrison morrison mr morrison i've i've pre-drawn for you uh for ladies and gentlemen of the jury here today a depiction of a roadway now we know that you and your wife were in a horrible crash while heading north on i-35 on september 19 2019 is that right yes sir um you were in the vehicle yes sir i was um were you observing the condition of the road at the time the wreck happened on september 19 2019 of course um on on a basic basis whether it's not to scale or not does the diagram we hear of on the flip chart does it represent what i-45 north looked like as far as the lanes of traffic yes it does were there three lanes of traffic heading north yes sir in the middle of the freeway is there a controlled traffic lane for high occupancy vehicles yes um which direction were you and your wife heading northbound were you in the middle lane yes sir um then on the day sir using this diagram to describe and depict what occurred what happened right before this wreck well as you said we were traveling northbound in the center lane uh we came up on some slowing traffic kind of an accordion if you will so we began to slow down did that exist at all lanes of traffic yes sir so if uh were there multiple vehicles in all lanes of traffic in front of you yes sir do those squares fairly represent the accordion of traffic as you approach the scene and had to slow down to almost uh zero miles an hour yes it does uh was there traffic in each lane there was does that diagram uh while not to scale accurately reflect the stoppage of traffic in front of your vehicle yes sir it does now i want to use a different color you told us that you were in the middle lane is that correct yes sir um did you come to a stop in the middle lane of traffic stop or just about a stop okay were there vehicles in front of you that you could see as represented in all lanes of traffic yes was there any way for you to change lanes or go around to go forward no sir there wasn't and then uh mr simmons what happened next as we slowed down came almost to a stop we were hit from behind by the 18 wheeler so an 18-wheeler truck um hits you from behind yes sir does the red diagram that i've drawn reflect the 18-wheeler coming into contact with your car yes sir um while you were in the crash did your car get propelled forward it did can you give based on your personal knowledge and recollection what happened to your car as it got hit from behind well after it was hit the car veered off to the left and we hit another car that was in the left lane so over here correct did you come into did you hit this car yes sir uh does that diagram accurately reflect where your car uh ended up being smashed into then another car on the inside leg yes sir mr simmons does this diagram based on your personal recollection reflect at least a depiction of where the cars were and where your own car came to rest after being hit by the defendant's truck yes sir the honor at this time we're going to mark the diagram as plaintiff's exhibit 13 and we're going to offer the diagram itself into evidence as a depiction and accurate depiction of the scene of the crash now you may pull an objection to that but more often than not my experience has been a jury asks for the things that are created in front of them in the courtroom and they ask for the visuals that anchor the sequence of events now this case fortunately has a budget that merits spending a little bit of money on something more advanced but a lot of you have probably tried a car wreck of less value where you've got to find a pathway to create visuals and to create exhibits at trial based on the budget of the case right laying a simple predicate for a diagram just acknowledging the fact that it's not to scale but establishing the predicate that it still represents an accurate and true depiction of what it purports to be allows you i suggest to put a sticker on it offer it into evidence and challenge them to go and write on it if they write on it now right if they have to have some evidence on it you say your honor they can't mark on that that's a piece of evidence for the court now that's going back to the jury that distinguishes the concept of diagrams from something that is simply a demonstrative and offer that for your consideration doris you want to talk about writings and emails for folks okay let's get in an email and a text message text messages are something that we're seeing all the time and we're having to take screenshots of them when we produce them as evidence and so what you're seeing on the screen now is a text message and this is a case where a person was looking at their cell phone at the time of the car accident in june 24 at 9 11 pm a text message came in with a photograph of the baby and so we'll just do a quick little demonstration on what's the foundation for that it's the same thing right we have to establish that this person knows what it is that they have personal knowledge of it and then that it is from their own phone uh because now we're trying to establish as i said it is what we purport it to be and that it's a fair and accurate depiction of what he saw that night and because it's cross-examination we're going to lead okay mr jones i have in my hand what's been pre-marked as exhibit number 17 for identification i'm showing it to opposing counsel walk over uh your honor may i approach the witness or in this case let's say that the witness already has exhibit 17 in a binder in front of him so mr jones could you please turn your attention to exhibit number 17 in the exhibit binder okay i'm there right mr jones this is a snapshot of your phone is that correct of text uh messages on my phone yes and it came from your phone on june 24 2018 correct that is what the date is indicated here in the photo and that date is true and correct isn't it to the best of my recollection yes and at the time that you were driving your car you actually had your cell phone with you true that's correct and when you had your cell phone with you you had it in your hand right yes uh and at 9 11 a text message came in isn't that correct yes you actually looked at it that time right yes and exhibit number 17 for identification shows what you actually saw that night at 11 9 11 pm correct i would say that it does and that's a fair and accurate depiction of what you saw that night true true your honor i move in exhibit number 17. and let's say the judge then grants or accepts my my exhibit your honor may i show exhibit 17 to the jury and the jury and the judge lets me show it and you can see it here on your screen and i'm actually going to have our witness then look at it and ask a few questions and ask a few questions about that text message okay at a 9 11 you saw a photograph of your baby right yes and that is a picture of your baby from the nose up yes yes and that was sent by your wife right yes and it was something that was interesting to you wasn't it yeah we share photos of the kid all the time now at the time that you were looking at the picture of your baby that was when you actually smashed into the back end of mrs blankenship's car right yeah it was about the same time and in fact you were looking at that picture and not at mrs blankenship's car true that's true okay and so that's one another uh just getting in the um text message let's talk about an email it's the same idea and so let's talk about a case where an email came into a ob gyn and it came from the patient the patient is now deceased so we've got one of two ways to get this in we can get this in through a medical record just as a business record because this was maintained in the ordinary course of business as part of the patient's record or we can get it in uh basically by authentication and same thing as we've talked about with 901 um and that it is what it purports to be it's in fair and accurate depiction it doesn't you know so i can get it in one of two ways in a foundation and so let's just do the simple way first of all and keep in mind with this type of exhibit because it's come from the doctor and the doctor is a defendant in the action it's an admission so that's another way i can get it in but all i have to do is establish as he said it is what we purport it to be right okay so let's get in the email now this is i told you an email exchange between a patient and a physician we have the physician on the stand and this is exhibit number 25 for identification okay dr atwood you started seeing uh miss xiao tran in 2015 correct correct and that was for her pregnancy true and as she was getting closer to her due date you had email exchanges with her right that's right one of the email exchanges that you had with her was about scheduling her induction right as i recall that's correct and you didn't have a hard and fast date that you needed to have her induction done true true in fact you scheduled it for whichever day the hospital had available right that's our custom and practice yes and you didn't think it was emergent isn't that true that's true and you told her it wasn't emergent right correct uh let's take a look at that email your honor we have pre-marked as exhibit number 25 for identification a copy of the email and my opposing counsel has a copy in his binder and i'm going to ask dr atwood can you please turn your attention to exhibit number 25 for identification okay okay in front of you is a copy of the email exchange between you and mrs xiaotran true true and it's dated uh february 3 2016 right yes that was the date of her email to you correct correct and then you responded on february 4 2016 right right exhibit number 25 for identification is a fair and accurate depiction of the email exchange between you and the patient right i would say it is okay and it is a fair enacted depiction back in february third and fourth of 2016 of this email exchange yes and those were actually your words that you used right yes i typed it here i move in exhibit number 25. okay uh so now that gets received into evidence yarner may i show exhibit 25 to the jury and then you have it on your screen now dr atwood you told the patient that the hospital just staggers the inductions right that's what i said and the purpose of letting her know that uh was so that she understood it could happen at any time right yes and it was actually at the flexibility of the hospital true yeah it's unpredictable uh and you said there's always a chance that the induction gets put pushed out depending on the priority of the needs for this for the space yes and that's because you did not think that the induction was a priority for this patient right i didn't think it was an emergent induction in fact there is no such thing as an emergent induction is there that's true and you wanted to give reassurance that there wasn't any time that the patient actually had to have the induction right true and that's the reason that you wrote the email in the way that you did that there's a chance the induction could get pushed out just to let her know of contingencies yeah okay so let's stop there and the idea behind that is when we talk about using the email well first on the foundation part i think all of us have now figured out look we can get in any piece of evidence it's how we choose to use it and what we're trying to highlight from that exhibit that becomes fun and exciting for us and so if we want to get in this email the purpose of it was to corroborate what our theory and our theme was was that in this case the patient ended up having an induction which the defense said uh was necessary and needed to be done this week or else it was going to be too late and we can see from the email that just wasn't true so we wanted to establish one of our criticisms of their affirmative defenses and we also wanted to corroborate what we were saying so that's the reason that the piece of evidence came in jim let's talk about investigation in crash reports thanks doris let me let me talk to everybody about something that is commonly encountered which would be an investigating officer a local authority a state authority and a crash report in a motor vehicle case now i will start by the proposition that the laws by depending on your state can differ on this there are some fundamentals about the predicate primarily going to 803.8 regarding documents that are kept under an official duty which laid this predicate in the state of texas crash investigation reports by an investigating officer qualify as public documents and therefore are admissible other states like california have specific statutes that prohibit the admission of investigation reports osha investigations knits investigations for example statutory exclusion but most states i think when it comes to local authorities or statewide investigating authorities regarding motor vehicles have some acknowledgement and recognition that you're dealing with a public record so oftentimes this is handled in deposition right if you've got an officer and you're not 100 sure you can get them down on a motor vehicle case other times it has to be handled in trial the predicate probably should be laid in deposition setting so that you know that you've got it laid if you can't get the officer and that way the exhibit has been essentially a predicate established factually through the officer but you may get to the situation where it's done in trial and it goes very simply the dance is exactly as done with this epic predicate of you need to read 8038 regarding public records so um officer newsome if i could hand you what i've marked as exhibit 12 could you tell the ladies and gentlemen the jury what that is this is an email from the defendant miss whiteford to myself and another officer in response to that email then if you'll look at the screen did you end up sending your investigation report regarding this crash that happened at the site of the race that she was conducting yes i did were you the investigating officer yes sir now uh do you work for uh the department of public safety in the state of texas yes sir how long have you done that going on 16 years um as part of your duties as a as a public safety officer in the state of texas do you go out and investigate motor vehicle crashes like the one that happened in september 2019 every day is that part of your official responsibility as a employee of the state of texas yes sir in the investigation then do you as your official duties create documents like we see here as exhibit 12. yes sir is exhibit 12 an official record of the department of public safety the state of texas yes it is are the things that are recorded in there part of your official duties as a deputy working for the state of texas yes sir do you record those in exhibit 12 specifically as part of your responsibilities investigating crashes like this yes and then when completed sir what happens to a record like that i send it off and it gets posted for the public um is it maintained by the department of public safety yes sir is it maintained for the public and available to the public on the website of the department of public safety the state of texas yes sir to your knowledge they maintain all crash reports that are done by public officers such as yourself on that site yes sir um is this document based on your review have a narrative that you took as part of your investigation yes it does did you write the things in the narrative of this document the exact the crash report as part of your duties as the investigating officer yes sir they are the narrative sections of exhibit 12 and accurate depiction of your factual findings at the site yes it is were those written as part of your official duties yes sir um are the descriptions that you made there within your responsibility as a public safety officer in the state of texas yes sir your honor at this time we move exhibit 12. now there's two steps there and the problem is the issue of hearsay within hearsay for crash reports in texas florida's other places that qualify as an official public record oftentimes you'll have the narrative summary of the investigating officer so the public record exception will satisfy the authentication of the document and the fact the document is not hearsay however when an officer either takes eyewitness statements or does a narrative description of his own findings you get the issue of whether his statements are hearsay if his statements in the narrative qualify as public officer duties then you don't have a problem with a narrative section if he has a situation where he's taken eyewitness statements then you may have the extra element of having to establish the doctor the the officer not as a just purely investigating officer but as an expert who can rely on hearsay to come up to it with his conclusion in the efforts so it becomes a second step of establishing the entirety of the report but this is again state by state specific but generally speaking a crash report will satisfy 803.8 that's the predicate for official duties and when you get to a subpart that may involve narratives or factual findings just simply satisfy the hearsay within hearsay requirement by having the officer establish that they are his personal knowledge and that they're recorded in the document as part of his official duties and that then again will satisfy under a self-authentication standpoint under 9025 that the the quote narrative section is not hearsay and is authentic doris back to you okay let's look at a medical record from labor and delivery in minnesota and we want we have the doctor on the stand and again this is another situation where we're going to try to corroborate what the doctor is going to say and we'll do this as a do this as a direct examination just to get a feel for having a precipitate witness perhaps give us some information about what's contained in the record so dr georgia you were the physician that admitted uh the baby to the hospital is that right that's right and in fact before admitting the babies to the hospital you were there for the labor and delivery were you not for the delivery yes and parts of the labor okay and you wrote a note to memorialize what had happened right as i recall i dictated a note and why did you do that uh it's a requirement frankly but it's a standard thing that we do to create a record of my observations and impressions at the time okay and at the time that you wrote those impressions and observations um you gave your true and correct thoughts about what happened right to the best i could at the time yes and you wrote in all the information that you thought was most important about what happened in the labor delivery isn't that correct yes exactly let's turn to the record that you created your honor we have pre-marked as exhibit number 50 the medical chart for avant rainer and my opposing council also has a copy of exhibit 50. now dr georgia looking at exhibit number 50 for identification can you tell us what is that this is the record that i created uh from the labor and delivery when did you create that record according to the timestamp here it would have been you know within the hour okay and who put the content into that record um i dictate it uh and then it's transcribed and then i review it for accuracy and sign off on it when and when you did that was that part of the ordinary course of your business as a doctor i would say that's standard for every every case why is that standard uh so i myself want to have an accurate record of what was there so that i can recall it i also want to make sure that any other treaters physicians that need to have this information have it available to them and describe what happens to the record once you type in the information or dictate it i believe like i said i review it for accuracy i sign off on it and then it becomes part of the electronic medical record and is the electronic medical record uh kept in the ordinary course of business if i understand what you mean yes it's it's it's maintained by the by the facility okay and you've had an opportunity to access that record uh since the time of the delivery yes and it's been in the same condition i would say yes all right and so what we've done is we've established the time that it's made and kept in the ordinary course of business um and now you can just use that language or you know in this way what we've done is we try to add a little more credibility to it by having him describe how he did it why he did it right and i think the why question is something that we always forget but it lends credibility to the document itself and so that's always a good question to add in even though it's not one of the necessary foundations or foundational elements that you need so maiden kept in the ordinary course of business that at the time that it was made it was kept as a part of the ordinary business of being a physician that was made at that time and then we're off to the races and we're going to move it in your honor i move in exhibit 50 right shall be received and now i want to show a portion of this record because i want to highlight certain things that happen and so you can see in this record we've already highlighted some of the important parts of the notes and then we can ask some questions about that but let's stop here and jim what's up next so after medical records one of the primary issues that we deal with regardless again of the spectrum of cases is the admissibility of medical billing this becomes one again that tends to be in modern practice more affidavit oriented and that you should be able to establish through both the business record affidavit but you may get into a situation where you've got a defend lawyer who will not in any way stipulate to pass medicals even though they're established the practice may vary state by state but the reality is is the predicate at least when it comes to the underlying evidence usually is that the billing records for the provider are a qualified bill a business record you've just seen that with doris demonstrating the predicate on medical records take it a step further on the concept of medical billing and the witness then that you may be using to present medical billing at trial that need not be an actual provider if you've got causation and concept or it may have to be a provider if you need causation in concept for example a shoulder surgery in a car wreck case in catastrophic cases you may then have a table so what i'm going to demonstrate real quickly is the concept of medical billing through a summary of admissible evidence that if it can't get to a stipulation you can still lay the predicate this witness can be a treating physician this witness can be a life care planner this witness can be somebody who in some way has only the qualifications to review the records at issue and then proffer what is necessary for the predicate so you can imagine it being the treating surgeon or a surgeon that you've hired as a causation expert in an auto case or in this particular instance in a catastrophic injury case we got it through a life care planner who was actually a nurse but was qualified as a certified life care planner to do this predicate so it starts this way so mr bagwell have you had an opportunity as part of your review of this case when you were looking at the necessary future medical needs of mr kulick to also look at the past medical services that he has incurred yes did we provide you all of the bills from all of the providers that have been involved in providing care to mr kulick in the past yes sir um that's over thousands of pages of billing records isn't it that's right did you go through and look at least at the total of each of the individual providers who have provided care to mr kulick in the past i did um did we then uh work with you mr bagwell to develop a summary table of all of those individual providers for the amounts the total amounts that each provider has provided in the past that's correct if i could hand you uh mr bagwell plaintiff's exhibit 87 can you identify that for us this is the medical billing summary that you just described each provider that is listed there mr bagwell is that a billing record that you reviewed at least for the total amount yes sir those records have been previously admitted as business records for each provider is the amount on the summary exhibit 87 the amount reflected in the underlying billing records yes they are have you had a chance to review those yourself i did the grand total then sir in exhibit 87 does that look like the math totals up all of the medical building by each individual provider yes sir the honor at this time we would move into evidence as a summary of illuminous documents under rule 1006 exhibit 87. mr bagwell what's the total amount of past medical expenses that's been necessary to take mr care of mr cooler 672 283 dollars and seven cents um does that seem reasonable to you given what you know about medical billing and the state of texas today yes sir it does uh based on the injuries that mr kulick incurred in your review of the medical issues in this case is all of that medical expense in the past been necessary to treat him for the cervical fracture that he uh suffered during this wreck yes sir so at that point then you basically got what represents something simplistic for the jury that gets to your number right so whether you've got five providers or 50 providers you can't rely on all of the bills and billing as we know today can be extensive but this simply is a way to use the concept of a summary table in the authentication or actually in the the additional rules under 1006 to qualify what is a summary of all of those bills in a usable document so then the question becomes at trial right the idea and i'll show you the distinction very quickly past medicals have an underlying record that can then support the table the future was dr bagwell's opinions right so we have his report his report is hearsay this is exactly what happened in the case so dr bagwell you have issued the opinion along with dr altman the neurologist that the future medical care for mr kulick in this matter and the jury has already seen it is 9 million three hundred and fifty two thousand one hundred seventy two dollars yes sir um do you stand by that number sir yes sir i do and your opinion is that number for the future medical care reasonable and necessary yes now uh the report and the tables that you use to get to that final opinion do they number in the hundreds of pages at least um the demonstrative that we've marked already is demonstrative exhibit one there is a page in front of you that is this exact table correct yes sir i'm going to mark that as exhibit 90. is this a summary of the table that you did based on your work on future medical care that summarizes the total amount mr kulick needs in the future based on all the tables in your report yes sir your honor at this time we offer exhibit 90. now the problem there for the future is it's his opinion and so the underlying record that was the basis of what you could read right because it's the expert's opinion and so we had a blow up and we left it up every chance we could but we couldn't get it into actual evidence because it wouldn't satisfy 1006 and that the voluminous document argument that i made wasn't going to be admissible in and of itself so what you end up facing on a catastrophic injury any future injury case is the difficulty of getting the actual number over something that's demonstrative versus actually in now there's a variety of ways of trying it whether it be summary whether it be through the expert or whether it be through a document but usually if you have like a car wreck case and say so dr simmons do you have an opinion whether mr jones needs a shoulder surgery because of this crash yes i do and what is that opinion that he will indeed need a shoulder surgery because of the crash based on your experience as an orthopedic surgeon here in houston texas do you have some ideas as the amount that is billed for shoulder surgery like what he needs i do um is that charge reasonable based on your knowledge of the houston market for orthopedic services yes sir is it necessary to treat mr simmons because of the wreck that he had yes sir and what is that amount thirty eight thousand five hundred dollars okay is that based on your experience in training as an orthopedic surgeon yes sir now the question then becomes again if you're trying to get medical billing in how do i write that down so they keep it and that can be on a flip chart it can be on a board but the but the problem is when it comes to billing it's it's much more simple to lay the predicate for past it's a little more difficult to lay it for the future and just acknowledging that then it becomes your challenge as the attorney to leave it up every chance you got so one variation of actual real evidence and something that is great for an advocate to think about and get outside the boxes using of evidence in courtroom is the idea of the internet in the courtroom we know our jurors are tied to the internet whether through their cell phone or through a laptop and that access to ready information that answers anybody's questions is directly relevant to the way we want to persuade the 12 people in the box right so when you can have the idea that you as the advocate on behalf of your client are bringing them the answer the answer that's available through the internet that they can't go get because of the rules you improve your status but also improve your case so a lot of times and this depends on the technology you've got again the budget and also your willingness to kind of fly high you can do this this is just the entry point into google if i type into this the texas highway system or the harris county transtar system i would get to this site so in an auto case and in in whether it be san francisco orlando maybe even pensacola where troy is but certainly in almost every major urban area in the united states now there are traffic cameras everywhere and they monitor intersections now if you have a official governmental entity that has a website that has then images of that you can lay the simple predicate under 9025 again which is that the the internet site is a public site maintained by a government entity and so it goes nothing more than this with either the person uh that you have on the stand as either an accident wreck or even perhaps the just a lay witness it says um sir have you ever gone to the internet for harris county i have um did you know that harris county has a website that has real-time images of intersections in it yes sir now you were the one driving the defendant's truck on this day and you were the one in this wreck at the corner of westheimer in san felipe right that's correct now you say that the traffic was moving fine that day have you ever gone to harris county's website that is live that shows that intersection in real time i have um so if i pull up a website that is harriscounty.org you understand that's a government website yes sir i mean the web the url tells you that doesn't it sir yes and so we can pull up that intersection right now live of the westheimer and san felipe intersection and capture images that were at 2 p.m on a different day than you were involved in this you understand that yes sir that is sponsored by the harris county government and available online that's correct so and then you can you just that predicate then allows you and from my perspective to actually get that image in you can annotate it and you can access it another thing that you can do while in the courtroom um we may talk about learned treatises but this is not cross this is again the predicate laid in the courtroom for any witness um google scholar if you have the knowledge to do this you can do it live because doing it live is actually what is laying the predicate now um dr smith you're here on behalf of boston science your pardon me you're here on behalf of the defendant who you know has an underlying medical condition of hypoglycemia correct and it is your opinion uh based on the questions i've heard asked that there was no medical issue that affected the defendant's driving on this day that's your opinion yes sir you ever heard of google scholar i have you know that google scholar is an online website that is available to the public that allows you to research scholarly medical articles available in the united states that's correct and so if we went to that publicly available site google.com and then went slash scholar we'd get to that search engine wouldn't we yes sir and if i typed into that search engine sir i hypoglycea affects impaired driving did you know that there'll be journal articles that will come up that answer that question i assume there are and did you know sir that if we went to that google scholar website that the second journal article regarding hypoglycemia affected driving is written by the man that you trained under i didn't know that so you i my suggestion to you is you literally can do that in real time and then if you want to lay the predicate for the print out of the website literally print the website you can have this pre-done but you print the website and you have the url google.com scholar slash then journal then you hand it to him and you say you see what day was that printed out dr jones according to the uh footer at the bottom of the page that was today um and you see uh the url there for google.com search on the scholars site yes and that's the journal article we just talked about yes sir so the second journal article that's available online was written by your mentor that says people who suffer high globosemia have a direct effect on their drive yes sir now whether i offer it or not whether it gets in or not they know there's an answer on the internet i've offered that it has been done in real time so i've offered it as an exhibit and saying the predicate has been laid as to it being authentic because it is what it purports to be and uh some judges will let you do that but it's pushing out your envelope and the idea of laying the predicate on the authenticity of it because the footer is what establishes it as a publicly available record real evidence so to speak um so doris we're going to transition to that to animations i believe and move folks through what we just saw is an animation of an accident reconstruction in this case the pedestrian was standing at the corner a truck came in the back side of the truck rolled over the sidewalk hit the light post and also hit the pedestrian and something like this is where you do need an expert and so the foundation for this is a little bit longer but again we want to demonstrate that this is a fair and accurate depiction and because it's a recreation and not the actual thing we need our expert to describe for us what he did to validate that this is essentially the same thing that happened at the time of the scene right and so we're going to talk with the expert about the work that he did what evidence he used to pull it together and then how he put that into a computer analog or a computer uh calculus to be able to get the screenshot that we see all right and our expert is uh mr mason and we'll start off with uh a bit about the work performed okay and a bit about his qualifications so as i said this is going to take a little bit longer because we want to bolster the validity of the animation mr mason can you please tell us what you do for a living my business right now is roughly 100 percent working in the field of animation and graphics associated with litigation and tell us what qualifications do you have to be able to do animations in forensic cases uh i have an engineering degree as a mechanical engineer i'm also have experienced more than 15 years working in drafting and planning and then i've done some specialized work in the field of both graphics and filmmaking and tell us in this case what work did you do so in this case i was asked to collect all of the relevant evidence and try to create with as much certainty as possible and animation which fairly mirrored what happened on the day of the accident and what documents and photographs did you use to be able to begin your reconstruction i obtained all of the police records the police reports i also obtained all of the photographs taken by various investigators i had the list of physical evidence and observations made at the scene and then i was also able to obtain to scale drawings of the intersection from the city why did you need the reports because i wasn't there at the time and i needed to have some trustworthy indication of what marks what skid marks what scuffs and abrasions were there and so both the reports of the first responders and their photographs were important why were the photographs important for your analysis well because i wanted to try and show with as much certainty as possible what occurred on this day i wanted to be able to match up various tire marks skid marks scuff marks and other physical evidence with the animation which we ultimately produced how were you able to assure that the scale was appropriate into size well uh we had the benefit of knowing the size of the truck we had the benefit of knowing the precise schematic drawings and blueprints for the intersection the traffic signal the traffic light of course we also knew from medical records the height and weight of mr lucas who was the pedestrian who was hurt and once you gathered all of the photographs the measurements all of the documents that you just described what was the next thing that you did well we of course went out with a drone we took our own measurements we scanned the intersection we made sure that the city drawings and diagrams were correct we looked to see if we could actually match up the markings and physical evidence and then we used a commercially available computer program to scan the information in and produce a visual recreation how successful were you in making sure that the measurements all matched up with how that street actually exists actually with the marks at the scene knowing the precise measurements of the truck scanning the truck scanning the scene we were able actually to get what i think is as close as possible to a hundred percent match with both the physical evidence and the vehicles and the pedestrian and everything else involved how reliable are those scans well they are um there are over one million data points per square foot uh so i would say that they're uh they're pretty accurate and so for some of our folks on our jury who are engineers was this a lidar scan or was this some other type of scan this actually was using lidar we own the device and that gives us the confidence that we're getting an absolute accurate picture of the scene okay and what was the last thing that you did just to make sure now that the speeds distances and actual movement of the vehicle uh were fair and accurate to what was shown uh by the diagrams and the photographs uh in my particular business it's common then to have another engineer in this case a junior engineer to essentially be presented with the film and make an independent analysis whether anything was missed anything is overstated uh any pieces of the data don't correctly fit together and that was done here um mr edward johnson who was an engineer in the firm unconnected to this project was simply handed the data and the animation recreation and asked to vet it for any flaws mistakes or omissions okay your honor at this time we move in exhibit number 47 into evidence all right and there's where we are done now with getting this admitted what we've done is we've showed all the work that was performed we demonstrated the validity of it and how he used it uh and if there is any objection to any part of this um you know we can always cure it with additional questions and so typically what comes up in these cases is was there complete information did our expert actually use all of the right diagrams did they use the right measurements nowadays when we have experts that are using drones and scans we get really good data and so it's pretty hard to fight through the validity of that but as you can see all those questions were intended to draw that out so that we make sure that we build that foundation in a very credible way and build you know an impenetrable fortress around it by virtue of how much work he did if i wanted to add some of that i might even ask about how much time he spent and the other thing that we might want to do just for demonstrative purposes is to head off what we know was going to come right how much money the expert charge us right because that's going to happen in closing argument that's going to be one of the things that the defense always says about us we paid a ton of money and that's the reason we got the expert testimony that we did but let's go to just a couple of questions about that as i say just to build that fortress around this witness yeah mr mason how many hours did you actually spend on this recreation um i think as is reflected in the billing file which we produced between myself two associate engineers and a handful of technicians i think the firm as a whole spent something on the order of 300 hours on this project over a period of about seven months and what did you charge my firm for all of that time that you spent in the work that you did on this case i think you'll see in there that the total billings were about 142 thousand dollars that reflects not just my work and my colleagues work but there were also outside vendors and contractors we used uh to acquire some of the data some of the information from the city so that's not necessarily a foundation issue but again when we're talking about experts and we're moving in evidence like this we want to build a fortress around our witness protect our witness and protect the validity of the piece of evidence that we're getting in so when we come back to the idea of evidentiary predicates most of this ends up being almost pedantic right the idea that the thing is what it purports to be but don't overlook the opportunity and the predicate especially when a defense lawyer is throwing garbage in front of the train that sometimes the predicate actually allows you to create moments it is it is a step and sometimes a step that the defendant requires that you lay because they don't like what you're trying to put into evidence but i'm going to give you an example from a brain damage baby case just two years ago and the idea of taking the predicate as a persuasive tool in setting a scene i'm no tlc guy i'll leave that to smarter people than me but the idea was the defendant would not agree or stipulate to the admissibility of certain pictures so what we had was pictures from the neonatal icu and the examination of the father went a little like this and i'm going to do this improperly just for purposes but to demonstrate the concept so mr gore um parker we know from the evidence in this case was born september 16 2011. is that right yes sir were you in the neonatal icu at scott and white two days later on the 13th i was can you remember it yes sir uh were you by her bedside i was did you have your phone yes sir did you take pictures of uh your daughter two days after she was born yes sir i did did you keep those on your phone i did um it's about eight o'clock in the neonatal icu at scott and white and you have your phone can you describe the scene in general it was somber my baby girl's laying in a little bed helpless so i have in front of you sir what's marked as exhibit 100 is that a true and accurate copy of the picture you took on the night of september 13th yes sir does that demonstrate what parker looked like that night yes sir it does so we offer exhibit 100. let me have you look at exhibit 111. did you take that picture yes sir does that demonstrate what parker looked like that night it does can you remember being there unfortunately yes let me show you exhibit 112. does that demonstrate what parker looked like yes sir did you take that picture i did can you remember being there i can do you mind if i share those with the jury yes sir don at this time we'd move for admission exhibits 100 apartment 111 112. mr gore this is pitcher parker that night yes sir is this the second picture that we just talked about it is this gentleman here mr gore you remember the evening i do this person's got a uh outfit on is that the reverend that came down yes sir in the nursery there do you remember the reverend coming into the room and you actually taking a picture at about eight o'clock two days after she was born vividly what did the reverend do mr gore he said a prayer with the family prayed over parker can you remember every word do you need a pitcher to be able to see it yes sir so it went something like that but the idea was the defense lawyer wouldn't let us get it in and so he pardoned me the defense lawyer wouldn't let us get it in so we turned the predicate of is it actually what it purports to be into the scene setting moment that mike kelly is a master at that troy rafferty is a master at that you just need to find an opportunity and it can be something as simple as a property damage picture in a car wreck that if they are objecting to the substantial uh image of the property damage to take the predicate of recreating the scene moment and then laying the predicate that then moves you into story because ultimately as i know the nine episodes that are going to come after this you're going to move into the process of actual persuasion at trial we're going to walk you through vor dire through opening through direct through cross finally to close with some of the masters at trial from across the country so i know on behalf of myself personally it's been a real honor to participate in this program today and i'd like to have doris give us our final send-off and thank all of you for being here i want to thank the trial school for inviting jim and me to this program we're excited about evidence as you can see and love to get in as many things as we can and i really loved working with jim so thanks for this opportunity i hope all of you learned something fun and that you can use for your next trial good luck so again i'm rich newsome thanks for joining us today we hope you enjoyed the presentation if you did subscribe to our channel hit like and if you're a trial lawyer who only represents people visit trialschool.org apply it's completely free and there's really some amazing and and powerful content that's not available publicly here on our youtube channel so apply today again it's completely free and i think you'll find uh it's well worth your time to check it out we also have programs from members only that we'll be announcing only to members and so it's a good way of staying in touch and making sure you're in the loop for any future content and programs that the charleston presents so thanks again for joining us and hope to see you next time

Channel: Trial School

Views: 859

Rating: 5 out of 5

Keywords: doris cheng, jim perdue, trial school, hearsay exceptions, key rules, business records, evidence, overcoming objections, common documentary evidence

Id: 6Uz-Gbi_bTk

Length: 94min 4sec (5644 seconds)

Published: Wed Nov 25 2020