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Chapter 1Importance and Basics of EvidenceObjectives

Identify the paralegal's role in working with evidence Explain the importance of evidence Summarize the litigation process List the tasks that a paralegal may be responsible for throughout the litigation

process Recall the four major sources for evidence research Identify methods for conducting legal research regarding evidence Analyze ethical issues in working with evidence Examine paralegal ethics and attorney ethics as they relate to paralegals and

litigation Identify the roles of the different players in the court system and law office

Lecture NotesI. Why Study Evidence?Evidence is a fun and important subject.

II. The Paralegal’s Role in Working with EvidenceThe role of the paralegal is to assist at every step of finding evidence and determining whether it might be admissible at trial, organizing it, and getting it ready for presentation at trial.

III. The Basics of EvidenceA. What Is Evidence?

Evidence: testimony, objects, test results, expert and nonexpert opinions, and anything else that can be gathered and offered at court to prove or disprove a case.

B. How Does an Attorney Use Evidence?Tries to get evidence that is favorable admitted and tries to keep out unfavorable evidence.

C. Direct Evidence vs. Circumstantial EvidenceDirect evidence: can be seen, heard, touched, tasted, or smelled and directly proves something. Circumstantial evidence: indirect evidence.

D. Things Other Than Evidence That Can Be Used to Prove a CaseFact finder can also consider material the court takes judicial notice of, and stipulations that the parties make.

IV. Ethical Issues for ParalegalsParalegals can get their attorneys in disciplinary trouble if ethics rules are not followed

COPYRIGHT © 2008 Delmar Learning. ALL RIGHTS RESERVED.1

A. Ethics in the Law Office It's more complicated than just being "good."

1. Unauthorized Practice of LawMake it clear that you are a paralegal, not an attorney.

2. Conflicts of InterestAttorneys cannot be on both sides of a case, nor can they undertake representation against a former client where the new case is a related matter. Conflict of interest rules have been applied to paralegals.

3. Duty of ConfidentialityAn attorney has a duty of confidentiality to the attorney's current and former clients. This duty extends to paralegals.

B. Ethics and EvidenceAdditional ethics rules apply to evidence issues.

1. Presentation of false testimony2. Duty of Confidentiality

Attorneys are required to protect a client's confidences.

3. Duty to Preserve EvidenceA lawyer has a duty as an officer of the court not to destroy, allow the destruction of, lose, or otherwise spoliate evidence.

V. Roles of Different People in the Court SystemA. Lawyer

Advocates for clients, is an officer of the court.

B. ParalegalAssists attorneys in various ways.

C. Law ClerkAssists judges with legal research.

D. JudgeIssues oral and written rulings.

E. Court ReporterMakes transcripts of court hearings and depositions.

F. Peace OfficerInvestigates crime and makes arrests.

List of Key Termsadmissible answerburden of proofChinese Wallcomplaintcounterclaim


cross-complaintexculpatoryfact finderinadmissiblejudicial notice motion in limineprecedentpreponderance of the evidenceprimary lawsecondary sourcesspoliatestipulationsummons

Internet Linkshttp://www.consumer.govA federal multi-agency portal to federal consumer resources.

http://www.identitytheft.orgSite of an identity theft expert who is an attorney, reserve sheriff deputy, and identity theft victim, it features advice on how to prevent and deal with identity theft, including form letters.

http://www.privacyrights.orgSite of the Privacy Rights Clearinghouse, it features information on identity theft and other data privacy topics.

http://www.westlaw.comA subscription site for conducting legal, public records, and news research, it also has forms, jury verdicts and settlements, and court documents.

http://www.findlaw.comLinks to legal sites including statutes, cases, and law firms as well as basic information on areas of law typically needed by consumers, such as adoption, divorce, bankruptcy, criminal law, and employment law. It also includes some forms, legal news, articles, and message boards.

http://www.paralegals.orgSite of the National Federation of Paralegal Associations, it features legal resources and a model code of ethics.

http://www.nala.orgOfficial site of the National Association of Legal Assistants, it provides information about the paralegal profession, including a code of ethics, articles, and their books that are available for purchase.


http://www.nala.org/

http://www.paralegals.org/

http://www.findlaw.com/

http://www.westlaw.com/

http://www.privacyrights.org/

http://www.identitytheft.org/

http://www.consumer.gov/

http://paralegal.westlaw.comOffers training on how to use Westlaw and how to become Westlaw certified.

http://lawschool.westlaw.comFeatures tips on surviving law school, including course outlines, advice on how to brief a case and conduct legal research, and job postings.


http://lawschool.westlaw.com/

http://paralegal.westlaw.com/

Chapter 2Investigating Cases Outside the Court SystemObjectives

Explain the importance of investigating a case Analyze different methods for obtaining information relating to a case Outline how to investigate a case Compare the advantages and disadvantages of different methods of investigating a

case Organize an investigation file Make a tickler system Characterize resources that are available on the Internet

Lecture NotesI. Importance of Fact InvestigationAttorneys are required to conduct a fact investigation before bringing suit. The investigation will gather the evidence that will be needed to prove the case at trial.

II. Getting EvidenceThe client is a good source for evidence.

A. Lay WitnessesAn investigator can find fact witnesses through the client, by examining documents, and by talking to witnesses that are already known.

B. Expert WitnessesThe client and database searches are sources for expert witnesses. Jurisdictions vary on whether and when expert consultations must be revealed to the opposing party.

C. Crime and Accident ScenesPolice reports are a good source for cases involving crime and vehicle accidents.

D. Private InvestigatorsA private investigator can find people and find out about people.

E. The InternetThere are many investigatory resources available on the Internet.

1. For-Fee ResourcesThere are private investigation sites that claim to allow users to search for FBI records, credit reports, unlisted phone numbers, e-mail and street addresses, and more.

2. Westlaw Resources


Westlaw has public records and asset databases that can help with finding people and collecting judgments.

3. Lexis-NexisLexis-Nexis has data similar to Westlaw’s.

4. Other Subscription ProvidersThere are generally less expensive providers than Westlaw and Lexis-Nexis.

F. Public RecordsGoing to a government building can produce public records such as birth, marriage, and death records, real estate transaction and property records, assessments, lawsuit records, criminal records, judgments, and court filings.

1 Birth Certificates2 Death Certificates3 Marriage Records4 Real Estate Assessor Records5 Real Estate Transaction Records6 Motor Vehicle Records

G. Freedom of Information Act and State EquivalentsThe Freedom of Information Act requires the government to release information upon citizen request.

H. Weather ReportsWeather information is available through the National Weather Service, http://www.weather.com, and newspapers.

I. VideotapesThere are a number of types of videotapes that can come into evidence, such as reenactment, day-in-the-life, and security.

J. AudiotapesAudiotapes may be available, such as through phone messages or recorded phone calls.

K. Computers and DataIt is best to have a professional handle retrieval of computers and electronic data.

L. Medical RecordsIn cases with injuries or illness, medical records may be sought; however, medical professionals and their staff must be careful to comply with federal law when providing medical records.

M. Other SourcesBe creative when conducting an investigation. A number of sources that are either nontraditional or more general might be utilized.

III. Organizing and Conducting the Investigation and Preserving EvidenceKeeping organized during the investigation phase of a case will make things easier later on and will save time in the long run. The best way to get and stay organized is to start with a plan for the investigation.


IV. Collecting a Debt and Performing Bankruptcy InvestigationsDebtor-creditor law investigations involve finding assets and following the Fair Debt Collection Practices Act.

A. Finding and Recovering AssetsHaving a judgment against a debtor allows the creditor to search for assets through formal court discovery processes.

B. Fair Debt Collection Practices ActAnyone who collects a debt as a professional, including attorneys, must follow the federal Fair Debt Collection Practices Act (FDCPA).

C. Bankruptcy InvestigationsBankruptcy attorneys are responsible for the completeness and accuracy of information submitted on their debtor client's bankruptcy petitions and schedules.

List of Key Termsboutique class actionclass representativecontingency feecriminalistCSI effectdatabasejudgmentjurisdictionmini-Miranda warningskip tracesourcetestatorworkers’ compensation case

Internet Linkshttp://directory.westlaw.comA searchable list of the databases on Westlaw that is also organized by category and has links to information about the scope of each database, search tips, and available fields.

http://w3.nexis.com/sourcesA searchable directory of more than 36,000 Lexis sources with scope information about each source.

http://www.westlaw.comA subscription site for conducting legal, public records, and news research that also has forms, jury verdicts and settlements, and court documents.

http://www.lexis.com


http://www.lexis.com/

http://www.westlaw.com/

http://w3.nexis.com/sources

http://directory.westlaw.com/

A subscription site for conducting legal, public records, and news research, it also has forms, jury verdicts and settlements, and court documents.

http://www.versuslaw.comA subscription-based site that provides "access to court decisions, federal and state statutes, and administrative codes and regulations."

http://www.catalaw.com"CataLaw is the catalog of catalogs of worldwide law on the Internet. It aids legal research by arranging all indexes of law and government into a uniform, universal and unique metaindex."

http://www.ilrg.com"Internet Legal Research Group. A categorized index of more than 4,000 select web sites in 238 nations, islands, and territories, as well as thousands of locally stored web pages, legal forms, and downloadable files."

http://www.loislaw.com"Loislaw offers a powerful, one-source digital gateway to primary law, public records and treatises."

http://www.deponet.comA business that connects law firms to a network of "court reporters, legal video services, process service, videoconferencing, interpretation and other legal support services." Its service is particularly useful for scheduling purposes when a firm has needs out of town.

http://www.findlaw.comLinks to legal sites including statutes, cases, and law firms as well as basic information on areas of law typically needed by consumers such as adoption, divorce, bankruptcy, criminal law, and employment law. It also includes some forms, legal news, articles, and message boards.

http://www.jurispro.comA searchable directory of expert witnesses. Searches can be made with names or areas of expertise.

http://www.expertwitness.comA searchable directory of expert witnesses. Searches can be made with names or areas of expertise.

http://www.expertlaw.comThis site includes a searchable directory of expert witnesses but also has additional resources such as articles and tips on legal matters, legal forums, and legal links.

http://www.privateye.com


http://www.privateye.com/

http://www.expertlaw.com/

http://www.expertwitness.com/

http://www.jurispro.com/

http://www.findlaw.com/

http://www.deponet.com/

http://www.loislaw.com/

http://www.ilrg.com/

http://www.catalaw.com/

http://www.versuslaw.com/

A web portal featuring links to services that can find people as well as employment, bankruptcy, and driving records.

http://www.google.comA search engine for the Internet that also provides additional business services such as e-mail and spreadsheets.

http://www.lycos.comAn Internet search engine that also features games and other general content such as news and entertainment.

http://www.dogpile.comAn Internet search engine that combines four Internet search engines.

http://www.metacrawler.comAn Internet search engine that combines four Internet search engines.

http://www.excite.comAn Internet portal that offers a variety of services including e-mail, news, and a search engine.

http://www.mapquest.comThe site provides maps and driving directions.

http://www.weather.comProvides weather information for national and international cities, including recent historical weather going back about a month.

http://www.ncdc.noaa.govOfficial site of the National Oceanic and Atmospheric Administration, it features the "World's largest archive of climate data," and information on weather events such as tornados and hurricanes.

http://www.knowx.comAllows searches for people, businesses, and assets and the relationships among them. The company provides background checks, locates assets, and verifies property values for a fee.

http://www.jurisearch.comSite provides online legal research for a low flat fee but includes limited content such as California and Florida state cases, and U.S. Supreme Court cases going back to 1906 with limited coverage to 1793.

http://peoplesearch.comSite provides the opportunity to search for people.


http://peoplesearch.com/

http://www.jurisearch.com/

http://www.knowx.com/

http://www.ncdc.noaa.gov/

http://www.weather.com/

http://www.mapquest.com/

http://www.excite.com/

http://www.metacrawler.com/

http://www.dogpile.com/

http://www.lycos.com/

http://www.google.com/

http://switchboard.comAllows searches for businesses or people using name or phone number; also users can search for a city using an area code or zip code or vice versa.

http://whitepages.comLook for phone numbers for a particular business or person or for a type of business.

http://www.spj.orgSite of the Society of Professional Journalists, featuring articles and resources on freedom of information.


http://www.spj.org/

http://whitepages.com/

http://switchboard.com/

Chapter 3Witness and Client InterviewsObjectives

Identify the communication dynamics of an interview Recall that listening is a skill Explain the role of nonverbal communications in interviews Prepare for an interview Construct good interview questions Role-play how to build rapport with an interviewee Discuss how to set up an interview Demonstrate how to interview a witness Summarize and analyze an interview Identify factors involved in interviewing special witnesses

Lecture NotesI. Communication Theory Communication theory is the study and analysis of how people exchange information among themselves.

A. Communication Theory As Applied to InterviewsAn interview is dyadic communication. A number of factors should be avoided because they can cause noise in an interview. First, the environment where the interview takes place can interfere if it is too cramped, too lavish, an uncomfortable temperature, or too messy. A second factor is state of mind. A third factor is differences between the client's and the interviewer's social, racial, economic, religious, or educational status or upbringing, or gender, or sexual orientation.

II. ListeningThere is a difference between hearing and listening.

A. Listening Is ImportantListening is important for paralegals because they need to communicate professionally with attorneys, experts, clients, witnesses, deputy court clerks, process servers, and others.

B. Listening Is a SkillActive listening is a method to make sure that the listener is hearing the same thing that is being said by the speaker by listening with a purpose.

III. Interviewing a ClientThe first goal for an attorney-client interview is to impress client that he or she has found the right lawyer/law office for the case. Second, find out if the client’s case is one the


firm wants to undertake. Third, find out the status of the case and the client's overall version of what happened. Fourth, educate the client about what would happen if he or she goes forward with the case. Fifth, let the client know what needs to be done to retain the attorney or firm.

A. Starting the InterviewGeneral advice is given in the text regarding how to start the interview.

B. Avoid Giving Legal AdviceExplain to the client that you are a paralegal, not an attorney, and that you cannot give legal advice.

C. Conducting the Interview1. Get the Facts

Find out what happened. The focus of these questions will vary greatly.

2. Ask Open-Ended QuestionsAn open-ended question is one that cannot be answered with a "yes" or a "no" or some other single word or short phrase. "What happened next?" is open-ended. "Did you tell the police?" is not.

3. Avoid Leading QuestionsTry to avoid leading questions. Leading questions suggest an answer. For example, "you recycle, don't you?" is a leading question.

4. Have an OutlineIt may be productive to start the interview with an outline so that you ask about all the major topics that should be covered. However, do not become tied to your outline.

5. Take Good NotesOne technique to get good notes on the interview is to dictate out loud in the client's presence a memo regarding the meeting.

D. Ending the Interview and Assessing ItAt the end of the interview, let the client know what the next step is.

IV. Interviewing a Witness

Witness interviews are used to gather information about the case.

A. Starting the InterviewAs with client interviews, an important first step is to establish rapport.

B. Conducting the InterviewIn addition to open-ended, nonleading questions, additional techniques may be needed to keep the witness talking.

C. Ending the Interview and Assessing ItAt the end of the interview, you can ask if there is anything else the witness wants to tell you or that he thinks you should know.

V. Special Interviewees


A. ChildrenIt takes special training to be able to interview a child regarding sexual or physical abuse. In any interview with a child, it is ultra-important to avoid leading questions due to the propensity for children to try to seek adult approval with their answers.

B. Other Difficult WitnessesWitnesses who do not speak fluent English or are hostile may also require special treatment.

C. Expert Witness InterviewsAn investigator may need to find an expert witness to support the case, and in so searching, may have a chance to speak with an expert.

List of Key Termsattorney work productcoachdyadic communicationleading questionno-fault divorceopen-ended question

Internet Linkshttp://www.cornerhousemn.orgThis Web site of an interagency child abuse and evaluation center features resources for reporting child abuse, including information on those who are mandated reporters, and an outline of the techniques that are utilized in investigating child abuse.

http://www.listen.orgThe International Listening Association Web site features articles and newsletters on listening, a listening bibliography, and the ability to purchase listening assessment tools, and books and tapes related to listening.

http://www.highgain.comThis Web site of a training company that specializes in listening offers an online listening class, a free e-book on listening, and a free listening self-test.


http://www.highgain.com/

http://www.listen.org/

http://www.cornerhousemn.org/

Chapter 4Discovery: Getting Evidence Through the Court SystemObjectives

Construct a set of interrogatories and requests for production of documents List the various methods of discovery that are available through the legal system Relate how depositions work Characterize legal issues that can come up with discovery, such as privileges, trade

secrets, and discovery abuse Differentiate civil and criminal discovery Examine how discovery differs under the modern federal approach

Lecture NotesI. Purpose and Importance Of Discovery

A. Purpose of DiscoveryEach side gathers information and material that it might be able to use to prove its case.

B. Importance of DiscoveryDiscovery is important because it is a good source for evidence; information obtained through it can lead to settlement of a case or victory at trial.

C. Who Pays?Generally, each party is responsible for covering its own costs of litigation, including the costs of discovery.

D. What is Discoverable?Anything that is reasonably calculated to lead to the discovery of admissible evidence is subject to a discovery request.

II. Types Of DiscoveryParties can obtain discovery of anything reasonably calculated to lead to the discovery of admissible evidence.

A. InterrogatoriesAn interrogatory is a written question sent to a party that must be answered in writing, under oath.

B. Requests for ProductionAttorneys may request copies of documents or things. These are generally sent along at the same time as the interrogatories, usually as part of the same document.

C. Depositions


A deposition is a hearing where a witness’s testimony is transcribed by a court reporter. A deposition gives lawyers a chance to gather evidence and to see how deponents perform as witnesses, how much they know, and what they will say.

D. Depositions via Written QuestionsA party sends written questions to the witness, with copies to all other parties. Other parties may serve cross-examination questions, the party requesting the deposition can then send redirect questions, and finally other parties can send re-cross questions. After all the questions are served, the witness answers them.

E. Requests for AdmissionsRequests for admissions can be used to reduce discovery costs by establishing facts that are costly or difficult to prove. One party can ask another to admit some fact or application of law or admit that a document is genuine. The request cannot be solely to admit a matter of law.

F. Electronic Data Discovery and Computer ForensicsInformation from e-mails, Web pages, word processing, instant messaging, and handheld devices, as well as from computers and servers, is subject to discovery and is increasingly common, as 93 percent of corporate documents are created electronically.Attorneys and paralegals have a duty to make sure that all electronic sources of discovery are located and searched to comply with discovery requests.

III. Problems with DiscoverySometimes responding parties refuse to turn over requested information, provide incomplete answers, or raise a privilege as a defense to a request. Requesting parties may make requests that go beyond what would be appropriate for the case.

A. Continuing Duty to DiscloseParties have a continuing duty to update their discovery responses.

B. Privileges, Protections, and AbuseWhen a party determines that a privilege prohibits it from answering a discovery request, it can state an objection to the question on that basis and refuse to answer.

C. SanctionsOccasionally, discovery abuse becomes bad enough that the court may find it necessary to sanction the offending party.

IV. Discovery in Criminal CasesDiscovery in criminal cases is generally somewhat analogous to the modern federal civil discovery rules in that an almost automatic exchange of information occurs, except that the defendant determines whether or not to invoke the discovery rule that causes the exchange.

List of Key TermsBrady rulecase in chiefdeponent


depositionexculpatory evidenceinterrogatorymetadatamotion to compeloverbroadprotective orderreasonably calculatedspoliatesubpoena duces tecumwork-product privilege

Internet Linkshttp://www.krollontrack.comSite of a company that provides computer forensic services, featuring sample pleadings, discovery requests, and notices, links to federal and some state rules of civil procedure, case law summaries, articles relating to e-discovery, and a glossary of computer and legal terms.

http://www.nala.orgThe official site of the National Association of Legal Assistants provides information about the paralegal profession, including a code of ethics, articles, and its books that are available for purchase.

http://www.mobius.comSite of a company whose software can be used to respond to electronic discovery requests.

http://www.josephnyc.comThis site of a law firm that handles complex litigation features a complex litigation blog, articles, and a bibliography of books and articles on complex civil litigation.

http://www.uscourts.gov / The official site of the federal judiciary features definitions of terms, forms, fee schedules, statistical reports, and court news.


http://www.uscourts.gov/rules/newrules6.html

http://www.josephnyc.com/

http://www.mobius.com/

http://www.nala.org/

http://www.krollontrack.com/

Chapter 5Courts and Evidence OverviewObjectives

Diagram a big picture of the court system Recall an overview of the rules of evidence Identify how a court might keep evidence in or out Analyze whether the rules of evidence will apply to a tribunal Analyze whether the rules of evidence will apply at a particular stage of a case Examine rules of evidence regarding foundation and chain of custody Summarize how facts can be established without evidence through judicial notice,

admissions, and stipulations

Lecture NotesI. Overview of the Court SystemThere are two main branches of courts, federal and state. Certain cases belong in each court.

A. Federal CourtsFederal courts are courts of limited jurisdiction. There must be something special about a case in order for it to be brought to federal court, such as when there is a federal question, when all the defendants live in a state other than the one where plaintiff lives, or when the amount in controversy exceeds $75,000.

B. State CourtsState courts are courts of general or residual jurisdiction. Any case that cannot be brought in federal court is brought in state court. Most cases are filed in state court.

C. Trial vs. AppealTrial courts hear cases and make determinations of fact and law. Appellate courts review decisions of the trial court. Appellate courts can base their review only upon material that is in the record.

II. Overview of the Rules of EvidenceThe rules of evidence, and sometimes other laws, govern what is admissible and inadmissible. If something is admissible, the court will let it into evidence. If the evidence is testimony, and if it is admissible, the jury will hear it and may consider it.

III. Federal Rules of EvidenceThe Federal Rules of Evidence govern cases heard in federal courts, including bankruptcy courts and district courts.

A. History


Prior to the adoption of the federal rules, evidence rulings were based upon case law precedent. The Federal Rules of Evidence became law in 1975.

B. Where AdoptedForty-one states have adopted some form of the Federal Rules of Evidence.

IV. Foundation and Chain of CustodyFoundation and chain of custody are ways of making sure that the evidence being offered in court is authentic.

A. FoundationFoundation is evidence that supports the admission of other evidence. Foundation evidence supports that idea that an object is what the person offering it is holding it out to be.

B. Chain of CustodyChain of custody evidence says, "This is the object that I am talking about and I know it is the same object that is important to this case because. . ." For chain of custody to be established, each person in the chain must indicate that she received the item, what she did with it, and how it was kept safe from being replaced or altered when it was not in her possession.

V. Judicial Notice, Admissions, and StipulationsJudicial notice, admissions, and stipulations all have the effect of making a fact true for the purpose of the case without presenting evidence of the fact.

A. Judicial NoticeCourts can take judicial notice of facts that cannot reasonably be disputed, that are general knowledge in the community, or that can easily and accurately be determined by referring to sources whose accuracy cannot readily be questioned.

B. AdmissionsDuring the pleading phase, a party may admit something in an answer or answer and counterclaim. During discovery, a party can request another party to admit something and it may be admitted. In these cases, no evidence needs to be presented on the item that was admitted.

C. StipulationsStipulation means that the parties agree that the factfinder may assume that those facts are true.

VI. Best Evidence RuleThe best evidence rule requires an original document, but a subsequent rule then says a copy is treated the same as an original unless there is a valid question about the authenticity or it would be unfair for some other reason.

VII. When Do the Rules Apply?The rules of evidence do not usually apply in administrative law hearings, or probation or parole hearings.


List of Key Termsbest evidence rulechain of custodyclearly erroneousde novofoundationobjectionoffer of prooforder in limineoverruledpublishedrecordself-authenticatingstandard of reviewsustained

Internet Linkshttp://www.ncsconline.org/index.htmlThe site of the National Center for State Courts features a database of state court topics and links to state court information, and a bookstore of its publications.

http://www.uscourts.gov/The official site of the federal judiciary offers definitions of terms, forms, fee schedules, statistical reports, and court news.


http://www.uscourts.gov/

http://www.ncsconline.org/index.html

Chapter 6RelevanceObjectives

Contrast relevant and irrelevant evidence Classify evidence as likely to be admissible as relevant, or inadmissible as

irrelevant Examine Evidence Rules 401–415 Predict when evidence might be so prejudicial that it will not be admitted Differentiate admissible character evidence from inadmissible character evidence Examine Evidence Rules 608–610

Lecture NotesI. IntroductionRelevant evidence is that which tends to make a fact in dispute more or less likely.

II. Relevant, Irrelevant, and Prejudicial EvidenceA paralegal can help a lawyer get a case ready for trial by knowing what information from a client, witness interview, or deposition is likely to become evidence because it is relevant, and what will likely be inadmissible because it is irrelevant or prejudicial.

A. All Relevant Evidence Is Admissible Anything that could shed light on an issue that matters to the outcome of the case is admissible, unless otherwise specified by another rule or a law. Logically, then, anything that is irrelevant is not admissible.

B. Otherwise Admissible Evidence Is Prohibited by Another Law or Rule

A rule prohibits the admission of otherwise relevant evidence if it is prohibited by some other rule or law. Examples are evidence of a sexual assault victim's prior sexual activity, negotiations, and subsequent remedial measures.

C. Prejudicial Evidence Is InadmissibleA rule says that relevant evidence may be excluded if it would be prejudicial. The rule provides a balancing test where, on one side of the scale, the court considers how much the evidence tends to prove an important fact; on the other side, it places the likelihood that the evidence will inflame the jurors and cause them to become biased against the other party.

III. Character Evidence Character evidence is information about a person's character, personality, or habits.

A. Character Evidence Is Inadmissible to Prove ConductThe general rule is that character evidence is inadmissible to prove conduct.


B. ExceptionsThe first exception to the general rule that character evidence is not admissible is for a criminal defendant to offer proof of his or her own good character. The second exception is to show a character trait of the victim. The third exception is a list of three rules that cover impeachment. A rule says that a party may attack the credibility of a witness, even if it is the party who called the witness. Another rule says that, in civil cases, a defendant's felony conviction may be admitted as long as it passes the balancing test for potentially prejudicial evidence. In a criminal case, evidence of a felony conviction may be admitted against the defendant if it is not too prejudicial compared with what it proves.

C. Methods of Proving CharacterThe general rule is that character must be shown through evidence of the reputation, or through opinion.

IV. Other Relevance RulesA few other relevance rules apply to particular situations.

A. Subsequent Remedial MeasuresSubsequent remedial measures are steps taken after someone is injured to fix the problem and, in order to encourage defendants to fix problems, they are not admissible.

B. Settlement NegotiationsSettlement negotiations and offers to settle are inadmissible in order to encourage parties to settle.

C. Plaintiff's Medical ExpensesIf the defendant pays the plaintiff's medical expenses, that is inadmissible.

D. Guilty Pleas and Plea BargainingA rule prevents the admission of withdrawn guilty pleas and plea bargaining discussions.

E. InsuranceA rule prevents the admission of evidence regarding whether the plaintiff was insured.

F. Sexual Assault Victim's Sexual BehaviorA rule makes a sexual assault victim's sexual behavior on other occasions inadmissible.

G. Prior Incidents of Sexual Assault or Child MolestationA rule allows into evidence prior incidents of sexual assault or child molestation committed by defendants accused of those crimes or sued civilly for those acts.

List of Key Termsfact finder side barimpeachment subsequent remedial measuresinstant case testatormaterialopening the doorprejudicialrape shield lawrelevant


Chapter 7HearsayObjectives

Define hearsay Contrast the difference between the common definition of hearsay and the legal

definition Identify what is not hearsay because a rule says it is not hearsay Examine Rules 801, 802, 805, and 806 Recognize hearsay within hearsay and demonstrate how to apply the hearsay rules

to each level of hearsay

Lecture NotesI. Hearsay Is Not AdmissibleHearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A statement is an oral, nonverbal, or written assertion. Hearsay does not include anything that was said by the witness during the proceeding. If the party offering the statement can show some purpose in offering it other than proving the content of the statement, it is not hearsay.

II. When Hearsay Is Not HearsayThe rule that defines hearsay excludes from the definition two things that would otherwise be hearsay: prior consistent or inconsistent statements from the witness, and admissions by a party-opponent.

A. Prior Consistent or Inconsistent Statement by WitnessA witness may say something at trial that differs in a significant way from what he or she said during an interview or deposition. When that happens the witness can be impeached by his or her former statement.

B. Admission by Another Party-OpponentIf the party in a case said something that another party wants to come into evidence, it is not hearsay. It does not have to be an admission.

III. Impeaching the DeclarantWith hearsay, the declarant is essentially an absent witness who is testifying through the actual witness. A rule allows attorneys to impeach the declarant as well as to support the declarant's credibility.

IV. Hearsay Within Hearsay


When the witness is testifying about what someone heard from someone else, that is hearsay within hearsay. In order for hearsay within hearsay to be admissible, each step in the hearsay chain must be admitted because of a rule or exception.

List of Key Termsdeclarant hearsay hearsay within hearsayterm of art


Chapter 8Hearsay ExceptionsObjectives

Identify what is hearsay but is admissible due to a hearsay exception, regardless of declarant's availability

Describe when a witness is unavailable Analyze when hearsay is admissible because of an exception that applies only

when the declarant is unavailable Explain the catch-all exception to hearsay Examine Rules 803, 804, and 807

Lecture NotesI. Exceptions

II. When Declarant Is AvailableThe following are not excluded by the hearsay rule, even though the declarant is available as a witness.

A. Present Sense ImpressionThe declarant's statement must be made spontaneously so that the declarant lacks an opportunity to develop favorable commentary on the situation that favors the declarant; it must describe what the declarant personally heard, saw, felt, tasted, or smelled and be made while the declarant was sensing it or immediately afterwards.

B. Excited UtteranceIn order for a statement to be considered an excited utterance there must be a startling event, the statement must be made during the event or just after it so that there is no time to conjure up a lie or an exaggeration, and it must be made when the declarant is still feeling nervous or excited due to witnessing the event.[A and B make up the res gestae exception]

C. State of MindFor a statement to fall under the state of mind exception it must be made at the same time as the event, the declarant must not have had time to reflect or to think about the most advantageous thing to say about his or her state of mind, and the statement must be relevant to an issue in the case.

D. Medical Diagnosis or TreatmentThe critical factor in determining whether a statement will be admitted under this exception is whether it is a statement that a doctor would rely upon in making a diagnosis and setting a course of treatment.

E. Recorded Recollection


The witness must have personally known about the things noted in the document not be able to remember enough about the event to be able to testify completely and accurately, and the record must have been made when the events that are noted in the record were fresh in the witness's mind.

F. Records of Regularly Conducted ActivityRecords that are made regularly and systematically as part of running a business are admissible under this exception, as long as the business expects to rely on the records. The word "business" is broadly defined, meaning that it can be almost any sort of an office such as a nonprofit organization, a school, or an association. However, documents prepared for litigation, or in anticipation that there might be litigation, are not admissible under this exception.

G. Absence of Entry in RecordsWhen a record that would be admissible under the business records exception is missing this fact is admissible.

H. Public Records and ReportsThis exception is somewhat similar to the public records exception. It has three subparts. Clause A admits public records and reports reflecting a public agency's activities, Clause B makes observations and reports of the agency admissible (with the exception of police reports), and Clause C allows, in certain cases, factual findings from reports that an agency was required by law to make.

I. Records of Vital StatisticsRecords of marriages, births, and deaths are admissible under this exception

J. Absence of Public Record or EntryThere is an exception analogous to G above that makes the absence of a government record admissible.

K. Records of Religious OrganizationsPersonal information from a religious organization is admissible under this rule.

L. Marriage, Baptismal, and Similar CertificatesThere is an exception for marriage, baptismal, and similar certificates that is not used very often.

M. Family RecordsThere is an exception for records contained in family bibles, family trees, family pictures, and the like.

N. Property RecordsThere is an exception for records of documents affecting property rights.

O. Statements in Property RecordsThere is an exception for statements in documents affecting property rights. This exception differs from the previous exception in that it allows into evidence statements contained within documents that affect property rights.

P. Statements in Ancient Documents


Documents 20 years old or older at the time they are offered into evidence are admissible under this exception. The rationale is that someone who wrote something that long ago would not have foreseen or been thinking about the litigation.

Q. Market Reports and the LikeThere is an exception for market reports and quotations, lists, commercial publications, and directories upon which either the general public or people in a particular occupation rely. These are considered reliable because such things are published by those with motives for accuracy. If a phone book had many errors in it, the phone company would be inundated with complaint calls and people would rely on more accurate sources.

R. Learned TreatisesWhen an expert testifies, the expert may refer to treatises, journals, or the like and the opposing attorney may cross-examine an expert using those items as well, even if the expert did not testify from them. The expert needs to be able to explain and assist in the application of the concepts in the treatise or article in order for it to be admissible. Therefore, the treatise would not be admitted as an exhibit and jurors would not be able to view it during deliberations. It must be established that the treatise is "a reliable authority," which can be done through testimony, or the court might take judicial notice of a particularly well known authority.

S. Reputation Concerning Personal or Family History There is an exception for reputation concerning personal or family history.

T. Reputation Concerning Boundary or General HistoryThere is an exception for land boundaries and general history. This exception is rarely used.

U. Reputation as to CharacterThere is an exception for character evidence; however, such evidence may not be used to show that a person acted consistently with his or her reputation.

V. Prior Conviction RecordsIf a person pleads guilty or is convicted of a felony, that conviction may be entered into evidence.

W. Judgment as to Personal, Family, or General History or Boundaries

Civil judgments may be admitted under this exception if they prove matters of personal, family, or general history, or boundaries, which were essential to the judgment, and if the same assertion could be proven through reputation evidence.

X. Residual Exception[discussed below in section IV]

III. Declarant Unavailable ExceptionsThere are additional exceptions to the hearsay rule that apply only if the declarant is unavailable to testify. An unavailable declarant is one who has a privilege not to testify, refuses to testify, is dead or physically or mentally unable to testify, or disappears and the party trying to introduce her statement has made a good faith effort to find her.

1A. Former Testimony


When an unavailable witness has previously testified under oath, the former testimony may be admissible under this exception if the witness was then subjected to examination by the party against whom the testimony is offered or, in civil cases only, a person who had similar interests in terms of the issues needed to win the case.

B. Dying DeclarationThere is a very narrow exception for time of near-death statements. The declarant must believe that he or she is about to die when making the statement, and the statement can be about only the circumstances or cause of the declarant’s predicament. Such statements are admissible in any civil case, but the only criminal case in which they can come into evidence is homicide.

C. Statement Against InterestIf a declarant says something that goes so far against his or her interests that no reasonable person would make such a statement unless it were true, then it may be admissible under this hearsay exception.

D. Statement of Personal or Family HistoryThere is an exception for a declarant to state information about the declarant's birth, adoption, marriage, divorce, "or other similar fact" of personal or family history. The exception is not frequently used.

E. Catch-All Exception[discussed below in section IV]

F. Forfeiture by WrongdoingIf a declarant is unavailable due to a party's wrongdoing, then the declarant's statement will be admitted under this exception.

IV. Catch-All ExceptionThe catch-all exception basically says, if a statement does not fit one of the specifically listed exceptions, but it is just as trustworthy as something that does, it is admissible. However, in order to come into evidence under this exception, there must extraordinary circumstances.

List of Key Termscatch-alldying declarationexcited utterancelearned treatisepresent sense impressionrecorded recollectionres gestaestate of mindunavailable


Chapter 9OpinionObje c tives

Classify opinion evidence as lay or expert Examine Rules 701-706 Deduce the likelihood of opinion testimony being admissible Relate the process for obtaining expert testimony Contrast the different standards for admitting expert testimony such as Frye and Daubert

Lecture NotesI. Why Let Opinion Evidence In?It is difficult to draw a hard and fast rule between fact and opinion. There used to be a blanket rule that opinion evidence was not admissible. This rule proved to be unworkable. Yet making a distinction between fact and opinion has some utility in determining what evidence should be admitted. Therefore, witness statements that reach conclusions, draw inferences, or make evaluations are generally admissible.

II. Lay Opinion TestimonyLay opinion is testimony from a nonexpert that is admissible when it is about a subject that does not require training or experience in order for the witness to provide helpful insight to the fact finder. It can be difficult to distinguish between fact and lay opinion evidence. Lay opinion evidence can involve allowing the witness to state the conclusion that was apparent from the obvious facts.

III. Expert Opinion TestimonyThe rules regarding expert opinion evidence vary from the rules for lay experts.

A. Qualifications of an Expert WitnessAn expert needs to have either knowledge, skill, experience, training, or education that would qualify an individual to help the jury understand the evidence. The expert need not have testified as an expert before, nor have expertise in the exact topic at hand, nor have a specialized degree.

B. Expert Testimony Must Assist the Trier of FactExpert testimony must assist the judge or jury in understanding something that is generally beyond the knowledge of the average citizen. Expert testimony will not be helpful to the trier of fact if it is conclusory or argumentative.

C. Standards for Admitting Expert Testimony1. Frye Standard


Prior to the enactment of the Federal Rules of Evidence, expert testimony was evaluated for admissibility using the Frye standard, which asked whether the test was generally accepted by the scientific community.

2. Daubert Overrules Frye Daubert held that the Frye standard was incompatible with both Rule 702 and the intention of the drafters of the rules to remove obstacles to expert witness testimony. It said that courts should act as gatekeepers to make sure that expert testimony is admissible.

D. Factual Basis of Expert TestimonyAn expert may rely upon unsworn statements from other experts even if not admitted into evidence, hearsay such as medical records (as long as it is of a type upon which experts in the field rely), a party's statements, data the expert did not personally collect, summaries of data, and things that are inadmissible.

E. Ultimate IssueThere used to be a rule that experts could not testify on the ultimate issue. This meant that the expert was not supposed to testify to the jury about how to decide the case. The difference between providing a useful opinion and not saying how to decide the case was a thin one.

F. Miscellaneous Expert Opinion Points

List of Key Termscollective facts ruleDaubertexpert opinionFryegatekeeperlay opinionultimate issue


Chapter 10Getting Ready for TrialObjectives

Relate the importance of having a paralegal organize a file Describe how to keep a file organized during its progression Construct a trial notebook Illustrate the steps taken to subpoena a witness for a deposition or trial Comprehend motions in limine Distinguish among the various alternative dispute resolution systems

Lecture NotesI. Why Having a Paralegal Organize a File Is ImportantOrganizing a file is one area where a paralegal can demonstrate tremendous value to an attorney and client. Attorneys left to their own devices may jam everything into a single file folder because they are either too busy or too disorganized or too much of an absent-minded professor type, or all three, to do a thorough job organizing a file.

II. How to Organize a FileThe best way to organize the data you collected through your investigation and the discovery process is to be organized in the way you conduct the investigation and discovery. There should be an orderly system that dictates what happens to documents as they arrive, whether by mail or courier. Filing systems will vary by firm size, practice area, how large the file is for a particular matter, and degree of automation. An index should be maintained of anything that goes into a file, whether it is created by the attorney or received from someone else.

III. How To Make a Trial NotebookThe purpose of having a trial notebook is to make sure that key material is at the attorney's fingertips during the trial. A trial notebook is typically one or more three-ring notebooks with the essentials that a lawyer needs to try a case, such as notes for opening statements and closing arguments, anticipated objections, direct and cross-examinations, and final argument.

IV. Subpoenaing WitnessesA subpoena is a court order to appear at a hearing, trial, or deposition. If a subpoenaed witness fails to appear, law enforcement can go get the witness and bring him or her to court. The first step is to consider whether or not subpoenaing a witness is necessary. Subpoenas should be issued as far in advance of the trial as is possible, but only after it appears that the case will actually be tried.

V. Anticipating Evidence Problems


A. Motions in LimineA motion in limine is a request made in advance of trial for the court to rule on the admissibility of evidence; generally, such motions are to exclude evidence and to preclude mentioning the inadmissible evidence in front of the jury. If a motion in limine is granted, it means that no reference may be made to the excluded item. A court may grant the motion in limine either absolutely or preliminarily.

B. Objections That Can Be AnticipatedParties should try to anticipate objections, both to evidence they intend to offer and to evidence that they expect to be offered.

1. Best Evidence RuleAn objection based upon the best evidence rule would indicate that the proffered document is not the original document and argue that the original document is needed. The relevant rules are found in the Federal Rules of Evidence between 1001 and 1008.

2. IrrelevanceRelevance objections can bar the admission of evidence that is not material to the case. Through the other party's discovery questions in interrogatories and depositions, it may be apparent that they valued, and may try to offer, such immaterial evidence.

3. Hearsay The many exceptions and definitional loopholes are the key to whether or not a hearsay objection is going to be sustained or overruled. If you can recognize that a document might be considered hearsay, it is wise to consider what exception the attorney can raise at trial to get the evidence admitted.

4. OpinionNonexpert opinion testimony can be anticipated if it appears from the opposing party's discovery responses, motions, and filings that it intends to offer such testimony.

5. Parol EvidenceIn a case with a written contract, one party may attempt to offer evidence that shows the contract was orally modified or introduce a document that predates the contract.

6. PrivilegeThere are a number of privileges that protect certain people from having to testify about certain things. For example, the attorney-client privilege, the clergy-parishioner privilege, the therapist-patient privilege, and the doctor-patient privilege preclude these professionals from revealing information learned through relationships with clients.

VI. Alternative Dispute Resolution and NegotiationsOverburdened courts are increasingly sending parties to have their disputes resolved outside of the courtroom.

A. Plea BargainingWhen the defense negotiates with a prosecutor, it is called plea bargaining.

B. ArbitrationArbitration has the parties present evidence to an arbitrator in a shortened proceeding and the arbitrator makes a decision that may or may not be binding.


C. MediationMediation involves both parties and their attorneys meeting with a mediator to try to resolve the dispute.

D. MedarbMedarb combines mediation with arbitration. The third-party neutral serves first as mediator, trying to get the parties to agree to a negotiated settlement, and failing that, he or she makes a decision as an arbitrator.

E. Mini-TrialAnother form of alternative dispute resolution is a mini-trial, also called a summary jury trial. The parties get together with some people paid to sit through a short version of the case as mock jurors and render an advisory opinion.

F. Other forms of ADROther forms of alternative dispute resolution include appointing by consent a special magistrate, early neutral evaluation, and neutral fact finding.

VII. Pretrial HearingsA pretrial hearing is the court's last opportunity to get the parties to settle the case. Many times cases settle at the pretrial hearing.

List of Key Termsalternative dispute resolution (ADR)binding arbitrationcontinuancedate certainmedarbmediationmini-trialmotion in liminemotion to suppressnonbinding arbitrationobjectionoverruleparol evidenceplea bargainingside barsubpoena subpoena duces tecumsustaintickler system

Internet Linkshttp://www.adr.org


http://www.adr.org/

The American Arbitration Association (A.A.A.) Web site has information about arbitration, mediation, forms for filing a case with the A.A.A., the text of some international and federal statutes, and citations to state arbitration and mediation laws.

http://www.nmb.gov / The site of the National Mediation Board, a federal agency that deals with airline and railroad labor disputes, features the text of the Railway Labor Act, and information about mediation, online dispute resolution, arbitration, and forms.

http://www.voma.orgThe Victim Offender Mediation Association, "an international membership association, supports and assists people and communities working at models of restorative justice." Its Web site features information on victim offender mediation and restorative justice, links to articles, and newsletter archives.

http://www.bindertek.comThe site of a company that sells organizing material such as binders, trial notebooks, exhibit cases, and other supplies.

http://www.atla.orgThe Web site of the American Association for Justice (formerly the American Trial Lawyers Association) features information on continuing legal education seminars, litigation tips, and packets. The organization offers paralegal affiliate membership.

http://www.indatacorp.comThe site of a company that provides litigation products and services including trial presentation software, ediscovery, online electronic document review, and video deposition software.

http://www.visync.comThe site of a company that provides trial presentation software that helps to synchronize visuals with text.


http://www.visync.com/

http://www.indatacorp.com/

http://www.atla.org/

http://www.bindertek.com/

http://www.voma.org/

http://www.nmb.gov/

Chapter 11Trials and AppealsObjectives

Relate the steps in a trial Relate how a paralegal can help during trial List the goals of jury selection Discuss the difference between an opening statement and a closing argument Distinguish between direct and cross-examination Relate objections that cannot be anticipated prior to trial

Lecture NotesI. TrialThe parts of a jury trial are jury selection, preliminary instructions, opening statements, presentation of evidence through direct and cross-examination, rebuttal, closing argument, and final jury instructions.

A. Jury SelectionAttorneys are given the opportunity to remove jurors who are not likely to favor their case. There are two ways to get potential jurors off of the jury. The first is to have them removed for cause. Panel members may be excused for cause if they are unable to be impartial. The other way attorneys can get jurors excused is with peremptory challenges. An attorney can use a peremptory strike to get rid of a juror for any reason at all, except race.

B. Preliminary Jury InstructionsAfter the jury is impaneled, the court will provide preliminary instructions, which are designed to give a framework of the facts and major contentions and describe procedures.

C. Opening StatementThe party with the burden of proof is given the advantage of speaking first. That means the plaintiff in a civil case and the prosecutor in a criminal case speak first. An opening statement is not supposed to be argumentative. The attorney is allowed to state only what the evidence will show.

D. First Party's CaseFollowing the opening statements, the party with the burden of proof begins to present its case. It can call witnesses and introduce exhibits.

E. Motions at the Close of the First Party's CaseAt the conclusion of the plaintiff’s or prosecutor's case in chief, the defense may, and in some cases must, make a motion for a directed verdict in its favor.

F. Second Party's Case


Following the prosecutor’s or plaintiff's presentation of the case in chief, the defense may present its case in chief.

G. Rebuttal and SurrebuttalFollowing the conclusion of the defense case, the plaintiff or prosecutor may present rebuttal evidence.

H. Objections That Cannot Be AnticipatedCertain objections are based upon the form of the question; hence, they may not be anticipated.

1. ArgumentativeIt is improper to badger or argue with the witness.

2. Asked and AnsweredAn attorney may not ask the same witness essentially the same question more than once in the same proceeding.

3. Assumes Facts Not in EvidenceIn order to ask a nonpreliminary question, the attorney must first establish a basis for asking it.

4. Calls for a ConclusionWhen a question calls for a legal conclusion or for the witness to do the jury's job and reach a factual conclusion, that question is objectionable.

5. Confusi n g When a question is confusing there is a possibility that the jury or witness will not understand the question.

6. Conjecture or SpeculationWitnesses must testify regarding what they hear, see, smell, taste, feel, or otherwise know. Witnesses may not speculate.

7. Cumulati v e A cumulative objection is analogous to asked and answered. When evidence is admissible but the same information has already been presented, it is cumulative.

8. Narra t ive An attorney cannot just put a witness on the stand and ask a question that is so open ended as to just let the witness ramble on and on.

I. Closing ArgumentAt the end of the case, each side has an opportunity to argue its side.

J. Final Jury Instructions and DeliberationsAfter the attorneys have concluded their closing arguments, the judge reads the final jury instructions aloud.

II. AppealDuring the trial, it is very important to protect the record for the appeal. The record on appeal consists of the testimony, exhibits, pleadings, and material in the trial court file related to the case. Appeals courts generally review decisions of law de novo and reverse


factual findings only if they find a clear abuse of discretion such that no reasonable jury could have found the facts the way it found them.

List of Key Termsalternate jurorcase in chiefcomparative negligencecross-examinationde novodirect examinationdouble jeopardyperemptory challengepro serecrossredirectremoval for causeres ipsa loquitorspecial verdict formtestatortheme of the caseultimate question of factvenirevoir dire

Internet Linkshttp://www.nita.orgSite of the National Institute of Trial Advocacy, a group of "professors, judges and practicing lawyers who believe that skilled and ethical advocacy is a critical component of legal professionalism." The site features links to training publications, including several on evidence and depositions.

http://www.mri-research.comSite of a market research firm that performs case specific demographic surveys.

http://west.thomson.com/software/default.aspSite of Thomson West, from which software such as WestCheck and CiteLink may be downloaded.

http://courttv.com Site of the TV network that features links and videos of trials and law enforcement situations.

http://www.law.umkc.edu (search for “famous trials”)This site presents information on and summaries of famous and infamous trials from as far back as 399 BC up to the 21st century.


http://www.law.umkc.edu/

http://courttv.com/

http://west.thomson.com/software/default.asp

http://www.mri-research.com/

http://www.nita.org/

Chapter 12Technology, Evidence, and the FutureObjectives

Consider upcoming changes in population, demographics, and technology Identify how changes in population, demographics, and technology have affected

the legal profession and the rules of evidence Examine how traditional rules of evidence apply to new technologies Consider likely hot topics in litigation

Lecture Note s I. Likely TrendsTechnology is making people more connected through cell phones and city wide public wireless Internet access.Digital convergence will see the merger of television, Internet, and home and wireless phones. As changes occur in society, they impact the practice of law. Changes in population, demographics, technology, and politics all impact the types of cases that will be brought and the nature of law practice.

II. The Future of EvidenceThe changes in population and technology will impact the law office in terms of both the types of cases and the practical aspects of running a law office.

A. Courtroom and Office TechnologyB. New Technology and Improved Technology

Technology will create new types of cases and make existing cases easier to prove. New, unforeseen technologies will continue to develop.

C. Evolving Technology in EvidenceLaw tends to evolve slowly while technology and science have been evolving at a breakneck pace. Changes in law are usually made in an incremental manner as cases that no longer make sense are criticized or distinguished rather than overturned. In stark contrast, consider Moore's Law, which says that computer speed and memory doubles every 18 months.

D. Hot Topics in LitigationUpcoming hot topics will include copyright issues with digital media, Internet disputes, education finance litigation, securities fraud, Ponzi schemes, toxic torts, and product liability cases relating to prescription drugs and herbal supplements.

E. Increased Use of Alternative Dispute ResolutionCourts are under pressure to keep costs down due to pressure from taxpayers to keep taxes low and government services efficient. Yet, at the same time, they are experiencing increasing caseloads, so they will increasingly turn to alternative dispute resolution.

F. Rules Will Be Less Uniform


After many states adopted the Federal Rules of Evidence, there was a trend toward uniformity in evidentiary rules. As states and the federal government amended their rules and courts in different jurisdictions issued conflicting opinions interpreting their own rules of evidence, the uniformity began to devolve. This trend will continue, although the differences will be mostly technical.

List of Key TermsDNA testingPonzi schemeshaken baby syndromestare decisistoxic tort

Internet Linkshttp://www.census.govThe official site of the U.S. Census Bureau features demographic information and data tools.

http://www.shakenbaby.comThe Shaken Baby Alliance site has links and information on prevention and investigation of shaken baby syndrome.

http://www.sbsdefense.comThis private Web site and database for defense attorneys with cases involving allegations of nonaccidental head trauma has information on the theories behind shaken baby syndrome and defenses to such an accusation.

http://www.courtroomconnect.comThe site of a company that provides advanced communication services to the legal industry including Courthouse Connect, a Wi-Fi wireless data network for the courthouse.

http://www.trialdirector.comThe site for Trial Director trial presentation software, which allows depositions and exhibits to be organized and presented at trial.

http://www.verdictsystems.comThe site for Sanction trial presentation software, which allows depositions and exhibits to be organized and presented at trial.


http://www.verdictsystems.com/

http://www.trialdirector.com/

http://www.courtroomconnect.com/

http://www.sbsdefense.com/

http://www.shakenbaby.com/

http://www.census.gov/

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