Federal Rule of Evidence 404(b) (FRE 404(b)) is significantly underutilized in civil construction cases. Characteristically thought of as an evidentiary statute used only in criminal cases, Rule 404(b) excludes evidence of one’s character or actions as proof that one acted in conformity with that character trait. However, there are exceptions to the rule, such as prior knowledge, lack of mistake, motive, or the doctrine of chances. Though rarely used in construction cases, these exceptions allow savvy counsel to include evidence that might not typically be heard in a civil construction case. This article examines how this rule of evidence could be used in construction cases.
While FRE 404(b) statute lists useful exceptions to the rule, other exceptions such as the doctrine of chances may be used to admit this type of “other acts” evidence. Even if this type of evidence is found inadmissible, there is an advantage to going through discovery on these issues. After discovery, one has more relevant information, and more information leads to more leverage, both at settlement and at trial.
The Civil Application of 404(b)
Rule 404(b), at its heart, prevents evidence of a person’s character from being admitted at trial to prove that the person acted in accordance with that character or trait.1 There are, of course, statutory exceptions to this rule. Rule 404(b) states that evidence of other acts are admissible to show opportunity, intent, knowledge, or absence of mistake.2 This rule of evidence is often used in criminal trials, but is criminally underutilized in civil trials.
The use of Rule 404(b) evidence in both civil and criminal trials can help a jury determine whether an act was merely an accident or was actually intentional.3 For example, in civil cases involving fraud or misrepresentation, evidence of other acts perpetrated by the defendant has been received into evidence4 under the knowledge, intent, or plan “other act” exceptions found in Rule 404(b).5 Other courts have allowed 404(b) to prove discriminatory intent in discrimination cases.6 While not used often, this type of “other acts” evidence can be crucial in a civil case as indirect, if not direct, evidence of foul play.
Though not mentioned in the Rule, another exception that could allow inclusion of 404(b) other acts evidence is the “doctrine of chances.” The doctrine of chances is a theory that allows the jury to determine for itself that a number of seemingly unrelated coincidences are in fact a pattern, and not random misfortune.7 This is not a character theory, because the defendant’s character is not being used as a prognosticator of behavior; instead, the jury is being asked to use their common sense to see whether a theory is plausible.8
The seminal doctrine of chances case is United States v. Woods.9 In this case, a young boy in a foster home died due to respiratory issues. To show that the death was not a coincidence, the government provided evidence that the foster parents had custody of nine other children who suffered from the same sickness, and that seven of those children died. When the evidence as a whole was examined, the court found that the foster parent had committed murder.10 It was, unfortunately, only after a large number of children fell ill that logic could prevail; before that, there was not enough evidence to convict.11
Similarity between the act at issue and the prior act is typically required.12 This is reasonable, as it is the parallel nature of the acts that leads the jury, through common sense, to the conclusion that it was a lack of accident that both acts occurred.13 As stated by the Seventh Circuit: “The man who wins the lottery once is envied; the one who wins it twice is investigated.”14 Because this principle simply uses common sense to determine whether a lack of accident exists, it is a documented exception to the Rule 404(b) ban on character evidence.15
How the Doctrine of Chances Can Be Useful
In certain circumstances, courts allow 404(b) evidence under exceptions other than those listed in the statute, such as the doctrine of chances. However, civil attorneys are unreasonably reticent to use this exception. One example of a case where counsel should have considered using the doctrine of chances is Weitz Co. LLC.16 In this case, the court denied the admission of evidence of prior construction jobs where the owner had delayed the contractor. The court held that such evidence did not show intent, motive, or knowledge.17 However, if counsel could have shown the jury, under the doctrine of chances, that on multiple past occasions the owner acted in a way to delay the project, such evidence could have led the jury to believe that there was a lack of accident regarding the owner’s delaying actions in this matter. Such an argument, based on the evidence, could have changed the jury’s decision.
Similarly, the doctrine of chances exception could have been put to great use in Chicago College of Osteopathic Med. v. George A. Fuller Co.18 In this case, the plaintiff contended that the contractor systematically underbid his projects, and then consistently charged delay claims and extra work claims to the owner. The doctrine of chances could have been used to show that in the past, the contractor underbid his claims. Undoubtedly just a few instances of underbidding would not have been enough to convince the jury of the contractor’s liability, much less the judge, but if underbidding on enough jobs could be shown, the jury could have decided that this underbidding was not through accident, but instead deliberate deception committed over and over against unknowing developers.
Thus, while exceptions other than those listed in Rule 404(b) have not historically been useful in civil construction cases, the above hypotheticals show that in certain situations, exceptions such as the doctrine of chances could prove extremely useful.
More Is Better – Information Wins the Battle
It must be noted that even in cases where the evidence was excluded, other advantages might have accrued. More information typically means more leverage. Whether the evidence will be admitted or not, the parties have spent time – and money – gathering this evidence for the opposing party.
For example, in Chicago College, the plaintiff alleged systematic underbidding by the contractor. One can imagine that giving the opposing party information regarding every bid that contractor participated in over years, if not decades, could result in a large amount of potentially damaging material. One should never engage in a “fishing expedition” for information that would not be relevant to the issue at bar, but that information was not only relevant, it was arguably dispositive in that case.
Had that information been demanded, the contractor would have had to ask himself whether he wanted that information made public at trial. If underbidding had been exposed, every other owner for whom that contractor had worked may have had a valid fraud claim against him. With the uncertainty a jury can bring to a case, the contractor may have opted to settle rather than risk the possibility of every owner or developer for whom he had underbid – intentionally or not – suing him for fraud.
This type of evidence is simply not often used in civil construction cases. One reason is the valid concern that the admission of this evidence will result in a trial-within-a-trial, and that the jury will be confused, or, worse, uninterested. However, counsel should realize that evidence such as that used by the doctrine of chances can make a trial much more stimulating for a jury – prior acts, a history, things that flesh out a story – if done correctly, these things can invigorate, not bore, a jury. Thus, construction lawyers should consider whether this type of evidence, especially doctrine of chances evidence, could be useful in their cases.
Evidence of “other acts” isn’t likely to supplant evidence of business records in civil construction cases any time soon. However, this type of evidence, in certain situations, can be extremely valuable – even dispositive. Exceptions such as prior knowledge, lack of mistake, or motive can show a jury evidence that would not be admitted otherwise. This evidence can be admissible not only under the exceptions listed in the statute, but under other exceptions as well, such as the doctrine of chances. Also, even in cases where the evidence was excluded, the parties still went through discovery on these issues. As the above cases show, this type of evidence could be admissible. Thus, it is discoverable. The result is access to more information – and more relevant information leads to more leverage in settlement and at trial. Therefore, construction lawyers should consider using this evidence more frequently.
1. FRE 404.
2. FRE 404(b).
3. Ronald Carlson and Michael Scott Carlson, Carlson on Evidence 120 (5th ed. 2016) (hereinafter “Carlson on Evidence”) (“Courts have reflected that [Rule 404(b)] was created to assist juries to determine whether similar occurrences were random or intentional.”).
4. McCormick on Evidence § 197. Other misrepresentations and frauds (7th ed.) (“In cases alleging fraud or misrepresentation, proof that the defendant perpetrated similar deceptions frequently is received in evidence.”).
6. Demers v. Adams Homes of Nw. Florida, Inc., 321 F. App'x 847, 854 (11th Cir. 2009) (“Thus, discriminatory intent may be proven by direct or circumstantial evidence, such as that admitted under 404(b).”).
7. Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding A Non-Character Theory of Logical Relevance, the Doctrine of Chances, 40 U. Rich. L. Rev. 419, 437 (2006) (hereinafter “Imwinkelried, The Doctrine of Chances”) (“If the jury finds the requisite extraordinary coincidence under the doctrine of chances, the proponent may invite the jury to finally conclude that, as a matter of common sense, the coincidence is evidence that one or some of the incidents were not accidents.”)
8. Imwinkelried, The Doctrine of Chances (“Under a character theory, the second inference entails using the defendant's subjective character as a predictor of conduct. The second inference under the doctrine of chances is quite different. At trial, the litigants present the jury with at least two competing hypotheses: one that all the incidents are accidents, and the other that one or some of the incidents were not accidents. When a jury is presented with competing versions of the events, the jury is expected to use its common sense to gauge the relative plausibility of the versions.”).
9. 484 F.2d 127, 130 (4th Cir. 1973).
10. United States v. Woods, 484 F.2d 127, 133 (4th Cir. 1973) (“Only when all of the evidence concerning the nine other children and Paul is considered collectively is the conclusion impelled that the probability that some or all of the other deaths, cyanotic seizures, and respiratory deficiencies were accidental or attributable to natural causes was so remote, the truth must be that Paul and some or all of the other children died at the hands of the defendant.”).
11. Id. (“Thus, with regard to no single child was there any legally sufficient proof that defendant had done any act which the law forbids.”).
12. Carlson on Evidence, 143 (“Admission under the doctrine of chances has been held to require similarity between the other act and the incident at bar in a given case.”).
13. Carlson on Evidence, 142 (“The doctrine of chances is based on the instinctive logical process that reasonably determines that unusual and abnormal events are unlikely to recur by chance.”).
14. United States v. York, 933 F.2d 1343, 1350 (7th Cir. 1991) overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999).
15. Imwinkelried, The Doctrine of Chances 459 (“The doctrine of chances is now a fixture in the American jurisprudence on uncharged misconduct evidence.”).
16. 665 F.3d 970, 975 (8th Cir. 2012).
17. Id. (“Proving a breach here does not put motive, intent, plan, or knowledge at issue.”).
18. 719 F.2d 1335, 1346 f.14 (7th Cir. 1983).