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Don’t Overlook Prior Bad Acts in Civil Cases: It May Be Your “Chance” to Win!

John S Austin

Summary

  • Judges often frown on the use of “prior acts” evidence in civil cases. One reason is the valid concern that the admission of this type of evidence will result in a trial within a trial and that the jury will be confused.
  • Ordinarily construed as a criminal evidentiary rule, Rule 404(b) excludes evidence of a person’s character or actions as proof that the person acted in conformity with that character attribute.
  • However, evidence of prior acts presented by use of the doctrine of chances may make a case more compelling, and if presented in an interested and fascinating way, it may energize a jury.
Don’t Overlook Prior Bad Acts in Civil Cases: It May Be Your “Chance” to Win!
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Civil litigators often underutilize Federal Rule of Evidence 404(b) at trial. Ordinarily construed as a criminal evidentiary rule, Rule 404(b) excludes evidence of a person’s character or actions as proof that the person acted in conformity with that character attribute. The rule provides, in relevant part, as follows:

Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts

. . . .

(b) Other Crimes, Wrongs, or Acts.

(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.<./p>

The rule bars the use of evidence of prior crimes, wrongs, and bad acts “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” However, there are exceptions to the rule, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” If a client alleges that it has been bamboozled by a con to purchase a business or product that does not match the representations made, often the seller may have committed prior “bad acts” that arguably could help establish the presence of intent, knowledge, and absence of mistake.

Though often overlooked in civil cases, this and other exceptions may enable savvy counsel to employ evidence that might not ordinarily be admitted. And even if such evidence ultimately is ruled inadmissible, the pursuit of it may lead to other, admissible, evidence and may also influence decisions regarding settlement and trial strategy.

While Rule 404 enumerates certain exceptions to the general rule of exclusion, another exception that is not set forth in the rule—the “doctrine of chances”—may also be used to win the admission of “other acts” evidence. The doctrine of chances, developed in the eighteenth century, allows a jury to decide whether a number of apparently unconnected coincidences are in fact part of a larger pattern, and thus not an accident at all. Because the theory is based on occurrences rather than character, a party’s character is not being used as a predictor of conduct; instead, the jurors are being asked to use their common sense to determine whether a theory is credible. Because such evidence is not evaluated based on whether it demonstrates a character or character trait and is evaluated instead based on mathematical probability, in some circumstances the evidence may not be excluded by Rule 404.

For example, in Westfield Insurance Co. v. Harris, 134 F.3d 608, 615 (4th Cir. 1998), the court held that

prior-acts evidence in this case could be particularly relevant because of the doctrine of chances, recognized by both courts and commentators. That doctrine posits that the more often an accidental or infrequent incident occurs, the more likely it is that its subsequent reoccurrence is not accidental or fortuitous. In [United States v.] Queen, [132 F.3d 991 (4th Cir. 1997)], we noted that “[o]nce an act is assumed to be done, ‘the prior doing of other similar acts . . . is useful as reducing the possibility that the act in question was done within innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances . . . that satisfies our logical demand.’” Queen, 132 F.3d at 996 (quoting Wigmore on Evidence § 302, at 245 (Chadbourne rev. 1979) (footnote omitted)).

Clearly, the acts alleged in the complaint must be substantially similar to the prior act. And the more prior acts the better, as it is the parallel between the acts that leads the jury, through common sense, to the conclusion that the matter before them was not merely an accident. As the saying goes, the man who wins the lottery once is envied; the one who wins it twice is investigated.

Because the doctrine of chances applies logic and common sense to explain an occurrence, it is a recognized exception to the Rule 404(b) ban on character evidence. However, civil attorneys rarely avail themselves of this strategy. Perhaps a company that provides services routinely and systematically underbids the costs of services and then consistently increases the prices, blaming the “supply chain” or a need for “unanticipated work.” The doctrine of chances could be used to show that the company underbid in the past. Certainly, one or two examples would not have been enough to convince the jury, but if underbidding were evident on enough jobs, the jury could have decided it was an intentional scheme carried out repeatedly.

Judges often frown on the use of “prior acts” evidence in civil cases. One reason is the valid concern that the admission of this type of evidence will result in a trial within a trial and that the jury will be confused, prejudiced, or—the curse of any trial attorney—bored. However, evidence of prior acts presented by use of the doctrine of chances may make a case more compelling, and if presented in an interested and fascinating way, it may energize a jury.

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