Monday, November 26, 2012

Case Law Bonus Post: Tarot Readers Association of Midlands v. Merrell Dow

  • In assessing reliability under Davis v Adams, judges should consider, among other factors:
    • Whether the theory or technique has been or can be tested
    • Whether it has been subjected to peer review and publication
    • Whether it has a known error rate
    • Whether it has gained widespread acceptance within the field
  • These factors are not dispositive
  • Reliability assessments must be made based on the totality of the circumstances
  • The proponent of the expert testimony must prove reliability by a preponderance of the evidence.
Notes: This case hearkens back to Davis v. Adams, clarifying the meaning of “reliable” as used in that case. For an explanation of the meaning of “preponderance of the evidence,” see Filteau v. Wanek. Despite all the concrete-sounding terminology used in the case, notice how vague the final conclusion is. Judges should assess reliability based on the totality of the circumstances- basically, this case just instructs judges to look at all of the factual circumstances surrounding an expert’s testimony to assess whether or not it is reliable. That’s a reasonable principle to follow, but it doesn’t give us a clear, solid outline for what’s involved in making a reliability assessment. One of the ways you’ll often see this case misused is opposing counsel will argue as if the factors it lists as suggestions (like widespread acceptance in the field) are in fact requirements, and because you haven’t specifically addressed whether your expert’s method is peer-reviewed his conclusions are inadmissible. Correct that assumption whenever you see it, reminding the judge that the factors this case law lists are neither dispositive (conclude the issue) or exhaustive (covering all the possible factors).

Monday, November 19, 2012

Case Law Bonus Post: Richards v Mississippi BBQ

Notes: Much like Coburn Camera Crew v. Ellicott City, this case ends a skirting-the-rules trick that used to be deployed in college Mock Trial. Rule 703 essentially tells us that an expert’s conclusions can be admissible even if the data underlying them is not. Quite often in college Mock Trial, the data underlying an expert’s conclusion is hearsay. You used to be able to put that hearsay in via Rule 703, simply by having the expert say “I concluded [hearsay content]” instead of “I was told [hearsay content].” This case ends that option, explicitly forbidding experts from being “conduits who merely repeat what they are told.” In using this case law to prevent someone from using an expert to bring in hearsay through the “I concluded [hearsay content]” trick, it is probably best to still begin with a hearsay objection. If they then use Rule 703 to excuse the hearsay, counter with an argument from this case law. If you’re on the other side of that argument, being illegitimately accused of bringing in hearsay when you’re bringing in an expert conclusion, your strongest argumentative strategy will be to point out the ways in which your expert is processing his data- how he isn’t just reciting hearsay but adding something to the hearsay which may in fact underlie his conclusions.

Saturday, November 10, 2012

Case Law Bonus Post: Coburn Camera Crew v. Ellicott City & Davis v. Adams

Coburn Camera Crew v. Ellicott City
Notes: A brief college mock trial history lesson is in order: there used to be a fun trick you could play with character evidence. The main character evidence rule, Rule 404, references “person,” like this case law indicates. And it used to be that nothing in the case materials made it clear that corporations were people, so you could enter character evidence more or less freely if you could successfully argue that corporations and businesses weren’t people and couldn’t have character traits. This case law forbids that trick, making clear that all the character evidence rules apply to businesses as well as people. Nothing in this case law is especially distinct from the character evidence rule, so if you understand that rule you understand this case law. It may be worth noting that the language of the second sentence- “businesses sued for negligence or recklessness generally may not defend themselves on the grounds that they acted safely with respect to other situations and activities that are separate from the case at hand”- is a more explicit forbidding of that tactic than is found in the Rules of Evidence, and could potentially be used aggressively to exclude evidence the actual character evidence rules would be unclear on. Clear examples of that possibility from this year’s case do not come to mind, however.

Davis v. Adams
Notes: Rule 702, as you probably know, describes the foundation necessary for an expert witness to testify to his conclusions. This case law in effect raises that standard: you have to not only persuade the judge that the proper foundation for the testimony has been laid, but that the testimony will be reliable. How exactly that’s done is clarified by Tarot Readers Association of Midlands v. Merrell Dow; suffice it to say that standard foundational description of the techniques your expert used and the data they relied upon should give you sufficient argumentative fodder to meet this standard.

Sunday, November 4, 2012

Case Law Bonus Post: Riley v Jones & Jeff v Wario's Toolkit

Riley v. Jones
Notes: This ruling essentially gives us a shortcut for applying Filteau in the particular situation of determining who wrote an email. A restatement of the first sentence would be: the fact that an email is listed as from an address that belongs to a particular person allows us to assume that the email was sent by that person in order to determine its admissibility, absent reason to think it was sent by someone else. Presumably we could’ve gotten to that conclusion if we’d worked those facts (an email from an address attributed to someone) through the logic of Filteau, but this case law saves us that trouble.

Jeff v. Wario’s Toolkit
Notes: This case law is very brief but very important, because it makes an important clarification to what the plaintiff is trying to do in a civil case, and what the defense is trying to do when they use an affirmative defense. You probably already know that the plaintiff has to prove their case. That might sound very black and white, but the truth is proof comes in a variety of degrees. The question of “how sure do we have to be?” is answered by a legal concept called the ‘burden of proof’, which tells us how sure we have to be in different kinds of cases. Here we have to have a “preponderance of the evidence.” This case law tells us that means it must be proved that all elements are more likely than not true. That way of putting it is usually rephrased to use probabilities: the plaintiff has to prove that each element of their claim has a greater than 50% chance of being true. The defense must do the same for their affirmative defense claims.

Thursday, November 1, 2012

Case Law Bonus Post: Filteau v. Wanek

  • The application of various rules of evidence in a particular situation will sometimes turn on the identity of the person making a statement.
  • If the proponent of the statement:
    • Produces evidence that would permit a reasonable jury to find
      • By a preponderance of the evidence
      • That a given person made a particular statement
    • The court must assume the statement was made by that person for purposes of assessing its admissibility.
Notes: There’s a division in legal practice between questions of fact and questions of law. The judge is the “trier of law:” they have the authority to decide questions of law. In jury trials, the jury is the “trier of fact:” they’re supposed to resolve factual questions. Objection arguments are always posing questions of law, which the judge is supposed to resolve, but sometimes that requires solving questions of fact. If, for instance, you’re using the party-opponent exemption to hearsay, we might have to settle a question of fact if it’s unclear who uttered the statement. This case law explains how to solve that problem when the issue is the identity of the person making a statement. The “proponent of the statement” (the person trying to enter it into evidence) has to persuade the judge that a reasonable jury could find by a preponderance of the evidence that the declarant is who they say it is. A preponderance of the evidence is the same burden of proof used for civil cases overall, and essentially means that the assertion being proved has a greater than fifty percent chance of being true, given the evidence. Notice that the proponent of the statement doesn’t actually have to prove the identity of the speaker by a preponderance of the evidence. They have to persuade the judge that a reasonable jury could conclude that, a slightly easier thing to do. If a judge does not personally believe it’s been proven by a preponderance of the evidence, but does think a jury could find that, the proponent of the statement has succeeded.