Trial Evidence

Practice Points

What you need to know in a quick-to-read format. Find all of the Trial Evidence Committee’s Practice Points in this archive.

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Lessons from Sanctions for Evidence Spoliation
By Aren Tau – December 17, 2020
Providing only email printouts while deleting the electronic originals can lead to trouble.

Expert May Rely on OSHA Standards and Industry Guidelines to Support Opinion
By Mike Lied – Deember 17, 2020
What started off as a garden-variety personal injury case but ended up before the Illinois Supreme Court on issues related to expert witnesses.

Internal Audits May Not Be Precluded from Trial as a Subsequent Remedial Measure
By Kenneth Klemm – April 23, 2020
An appellate court ruling highlights the risks of internal audits and investigations being used by opposing parties in litigation.

Older by the Day: “Ancient Documents” in the Internet Age
David C. Kent– April 23, 2020
A December 2017 change to the rules of evidence add the qualification that a document whose authenticity has been “established” must have been “prepared before January 1, 1998” to be considered “ancient.”

Website Hyperlinks May Not Bind the Linking Party
Allison Caramico – February 14, 2020
This is great news for companies with a large web presence, but poses a difficult obstacle for plaintiffs hoping to challenge these companies.

Warning: Court Bars Expert Testimony on Implicit Bias
Michael R. Lied – February 14, 2020
The court believed that introducing the concept of unconscious bias based on inadequate data and analysis ran the risk of unfairly tilting the scales.

Defending Against a Pro Se Litigant – Six Tips
Miriam Manber – January 16, 2020
Navigate the rocky waters by preparing for some unique issues ahead of time.

Discovery of Your Adversary’s Litigation Funding May Be Precluded
Michael R. Lied – January 16, 2020
The defendants’ argument that the plaintiffs’ litigation funding was not only relevant, but a critical piece of information, was “flatly rejected.” 


Third-Party Affidavit Statements Admissible When Offered to Explain Listener Reactions
Kenneth Klemm – October 17, 2019
Trial court finds statements of third-parties in affidavit submitted to oppose summary judgment motions as hearsay are admissible when not offered to prove the truth of the matter asserted in such statements.

Florida Adopts Daubert Standard
Michael R. Lied – August 2, 2019 
Practitioners should be prepared to apply the new standard in matters in the Florida state courts.

Can a Court Take Judicial Notice of Government Tweets
Anastasia L. McCusker and Daniel J. Zeller – July 30, 2019 
When confronted with a request for judicial notice of statements made by government entities or representatives via official twitter or Facebook accounts, an authenticity assessment is key.

Be Careful with Admissions
Michael R. Lied – May 21, 2019
Evidentiary admissions can diminish credibility if they need to be changed; judicial admissions may lock in the litigant to a position that may later prove to be undesirable.

How to Use Errata Sheets to Your Advantage
Helene Hechtkopf and Amory McAndrew  –  January 31, 2019
Courts are permitted to disregard an amendment from an errata sheet that “reflects a party’s attempt ‘to retrieve the situation by scratching out and recanting his original testimony.’”


Caution: Even a Self-Serving Affidavit May Preclude Summary Judgment
Michael R. Lied  –  December 20, 2018
The fact that an affidavit may contain self-serving or uncorroborated statements does not prevent the affiant from raising a genuine issue of material fact.

A Guide to Using Documents at Trial for First-Time Trial Lawyers
Miriam J. Manber  –  December 14, 2018
How to avoid frantically shuffling through piles of paper while the jury is watching your every move.

How to Ask a Federal Court to Take Judicial Notice of State Court Proceedings
Kenneth Klemm  – December 5, 2018
A judge of the U.S. Court of Appeals for the Seventh Circuit recently provided practical guidance on the scope of judicial notice under the Federal Rules of Evidence and how to invoke this concept in federal court.

Four Tips for Making a Successful Sealing Motion
By Dustin Grant – December 4, 2018
How to avoid some of the common pitfalls that befall attorneys moving to seal.

Tips from the Bench: Effective Closing Arguments
By Hon. Thomas E. Stevens – August 28, 2018
Insights about avoiding common mistakes and sound practices for lawyers in the courtroom.

New Rules for Self-Authenticating Electronic Evidence
By Andrew Toft – June 22, 2018
Federal Rules of Evidence 902(13) and (14) make it easier to authenticate electronic data.

Tips from the Bench: Objections
By Michelle L. Alamo with Hon. Sean F. Cox – May 7, 2018
An experienced trial judge to offers tips on when and how to object.

Tips from the Bench: Cross-Examination
By Benjamin L. Tompkins and Andrew Alexander with Hon. J. Thomas Marten – February 26, 2018
An experienced trial judge to offers tips on effective cross-examination.


Tips from the Bench: Direct Exam
By Eric R. Harlan with Hon. J. Mark Coulson – December 18, 2017
The first part in a new series asking experienced trial judges to provide insight regarding certain aspects of trial.

Voices of Recovery Podcast Series
By ABA CoLAP – November 10, 2017
The ABA Commission on Lawyer Assistance Programs debuted the first of a series of podcasts that will address substance use disorders, mental health issues, addiction, and recovery issues. Episode 1 features attorney Laurie Besden, the Executive Director of Lawyers Concerned for Lawyers of Pennsylvania, who shares her battles with alcohol and drug addiction.

Expert Witness Found Not Credible in Wrongful Death Suit
By Michael R. Lied – October 24, 2017
Appeals court will not second guess trial court’s credibility determinations.

"Cooked" Meeting Minutes Do Not Qualify as Business Records
By Michael R. Lied – May 15, 2017
A revenge tax filing results in a prison sentence—to nobody's surprise.

How, When, and When Not to Use Pattern Questions in Expert Depositions
By Robert H. Foster – January 27, 2017
Despite the expenses, the benefits generally outweigh the cost.


Appeals Court: That Was Not Improper “Character” Evidence
By Michael R. Lied – October 9, 2016
A look at an excessive force case.

Summaries of Western Union and Moneygram Records Properly Admitted
By Michael R. Lied – June 5, 2016
Additional sources of corroboration can cure the hearsay problem that a third party’s involvement in creating a business record introduces.

Failure to Follow California Court's Order Results in Terminating Sanction
By Thomas Whiteside – May 20, 2016
A trial court has the inherent authority to control proceedings before it.

Hearsay Exception for Recorded Recollections: Pitfalls to Avoid
By Ryan W. Babcock – April 1, 2016
Lessons to learn from recent cases.