If you try cases, then admitting or objecting to the admission of evidence has to be in your life blood. The challenge is that the rules are complex and don’t easily fit together.
The solution would be an admissibility logic that ties all of the rules together sequentially that could be called upon in a moment’s notice. I’ve created a version of that logic for use in my trial consulting practice that I believe works well in civil cases. This admissibility logic is built on an alliterative set of “P’s”…
- Preliminaries
- Purpose
- Prejudice
- Privilege
- Predicate
When considering any type of evidence, a trial lawyer should first focus on its purpose: why am I or my opponent trying to introduce this? From a high-level perspective there are only two purposes for introducing evidence…
- Prove or disprove the elements of a claim or defense
- Impeach or rehabilitate the credibility of a witness
Both of these purposes are important but between the two proving your case and disproving your opponent’s case is most important. (This is especially true for plaintiffs who must survive a directed verdict motion). This underscores the importance of having a ready reference deskbook of cause of action and defense elements. One of the best sources are jury instructions. In a later blog post I’ll unpack this further. Here is what it looks like graphically…
Mastery of admissibility basics is fundamental to any civil trial practice. The mechanics of admitting text messages and emails fits into the broader admissibility logic we have developed and describe in our free e-Book.
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A New Way to Think About Evidence, Part 2 . Witness Credibility: the other reason for introducing evidence. Read more…
A New Way to Think About Evidence, Part 3 . Steps to becoming proficient in laying an evidentiary foundation to introduce evidence. Read more…
