The Illinois Trial Practice Weblog

A Few Things to Know About Juries

In the April, 2008, issue of the Illinois Bar Journal, you'll find some interesting tidbits about juries in "Lessons from Jury Research," by Sara Parikh and Terrence Lavin.

Some examples--

• Juries care most about the "strength of the evidence" and make decisions on that basis, rather than giving in to pre-conceived biases or emotional appeals.
• Juries try to fit each bit of evidence into a "cohesive story"; if they can't do it, the evidence "tends to get dismissed or serves to reframe the story."
• Juries tend to discount expert testimony unless it is firmly rooted in the factual evidence.
• While lawyers must sometimes "emphasize and even repeat important concepts," juries quickly become frustrated by needless repetition.
• Even if jurors come to a trial with a particular bias in favor of the plaintiff or defense, these feelings are rarely so entrenched that they will predict the juror's decision about a particular case.

To learn more interesting lessons about juries, read the complete article at your nearest law library or online here (ISBA members only).

Using Emails in Support of Summary Judgment or at Trial

Emails present special evidentiary problems when used in support of summary judgment or at trial. The problems presented--and the answers, too--are the topic of "Authenticating E-Mail Discovery as Evidence," by Beatrice O'Donnell And Thomas A. Lincoln. For any lawyer who deals with emails in discovery, it's well worth reading. Here are a few points:

• To authenticate an email, you must prove it is genuine. This must be done not only to make an email admissible at trial, but also in order to use an email in support of a motion for summary judgment.
• In federal court, some emails are self-authenticating under 902(7).
• If not, you'll need to use stipulations or requests for admissions to authenticate the email; failing that, you can find a witness who can authenticate the email.
• A second evidentiary hurdle is hearsay.
• If the email is an admission by a party-opponent, it's not hearsay.
• When the opposing party is a corporation, emails by lower-level employees might not be admissions. "In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority."
• Emails might fit within the business-record exception to the hearsay rule, but this might be difficult if the email is merely "chatter, statements that are made casually and not as a matter of obligation or even routine."
• In many courts, you will have to face the issue of authentication and hearsay with respect to each separate email in an email chain or thread.

There are more tips in the article. Thanks for the link to Celia Elwell, a paralegal in Oklahoma City.

Related post: "Electronic Discovery: Think About Admissibility Well in Advance of Trial."

A Roadmap for Privilege Issues in Federal Court

As I mentioned yesterday at Legal Underground, there was an interesting and useful order issued a few days ago by Judge Fallon in the federal Vioxx MDL: "Order & Reasons dated August 14, 2007" (pdf, link from the Vioxx MDL website).

The ruling concerns defendant Merck's attorney-client-privilege objections on a representative sampling of about 30,000 documents. The ruling is useful for analyzing privilege claims by large corporations, and discusses the following issues:

• General principles re attorney-client privilege, pgs. 10-13;
• Issue: whether the primary purpose of a communication is really legal advice, especially in light of ease of email within corporations, pgs. 13-18;
• Issue: the arguably enlarged scope of legal communications within corporations that are highly regulated by agencies such as the FDA, pgs. 18-23;
• Analysis of the defendant's "reverse-engineering" argument, i.e., that by producing documents not technically privileged, readers would be able to "reverse engineer" the legal advice that preceded the communications, pgs. 23-25;
• Issue: the way in which the choice of a method of organizing a corporation's working units (and the powers it gives its legal department) can affect claims of privilege, pgs. 25-28.

The opinion is also interesting for the procedure the Court used to analyze claims of privilege for the massive set of 30,000 documents, which comprised about 500,000 pages of materials. Rather than analyzing each document, the Court looked at a representative sampling. In his opinion, Judge Fallon noted that he went into "considerable detail" in the hopes that the procedures employed by his Court would serve as a guideline to resolving privilege issues in complex cases "in the dawn of the age of electronic discovery."

A post at the Pharmalot weblog captures the essence of the undertaking--

Fallon called the battle “a time consuming and expensive saga that has spiraled out of control.” The cost to review a sample of 2,000-plus documents exceeded $400,000, which is to be split by Merck and plaintiffs’ lawyers, and took three months.

Hearsay: The Business Record Exception and Opinions in Illinois

Question: In Illinois, are documents otherwise admissible as business records under Rule 236(a) barred because the documents contain opinions?

Answer: Generally, no.

The foundational requirements for business records are found in Illinois Supreme Court Rule 236(a):

Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term "business," as used in this rule, includes business, profession, occupation, and calling of every kind.

The rule itself contains no language excluding records that contain opinions. Illinois courts haven't imposed such limitations either. In a recent case, Troyan v. Reyes (3d Distr. 9/29/06), the Third District ruled that opinions contained in medical records could be published to the jury even without a sponsoring witness, since the medical records were established to be business records. The court commented:

Illinois courts have held that “Rule 236(a) does not bar the admission of business records because they contain opinions.” Birch, 139 Ill. App. 3d at 407, 487 N.E.2d at 806 (safety study that contained opinions was admissible business record); see also Amos v. Norfolk & Western Ry. Co., 191 Ill. App. 3d 637, 646, 548 N.E.2d 96, 102 (1989) (accident reports containing conclusions and opinions fall within business records exception); People ex rel. Schacht v. Main Insurance Co., 122 Ill. App. 3d 826, 833, 462 N.E.2d 670, 675 (1984) (financial documents containing opinions were proper business records).

For more about court's ruling in the Troyan case, see my previous post, "Admissibility of Medical Records as Business Records in Illinois."

For Illinois Lawyers Only: Deceased Plaintiff's Discovery Deposition Cannot Be Used as Evidence at Trial

Illinois Supreme Court Rule 212(a)(5) seems to clearly prohibit the use of a deceased plaintiff's discovery deposition as evidence at trial:

(a) *** Discover depositions taken under the provisions of this rule may be used only:

5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.

Rule 212(a)(5) (emphasis added).

In Longstreet v. Cottrell, Inc., No. 5-06-0316 (5th Dist. 2007) (pdf), the plaintiff argued that 212(a)(5) should not bar the use at trial of a discovery deposition of a deceased plaintiff if the deposition was also admissible under 212(a)(3), which states that a discovery deposition can be used at trial "if otherwise admissible as an exception to the hearsay rule." According to plaintiff's theory, the discovery deposition would be "otherwise admissible" under the former-testimony exception to the hearsay rule.

Though a worthwhile argument, the Fifth District rejected it, finding itself unable to support an exception to the express prohibition of 212(a)(5)--

The policy in Illinois, as established by the Illinois Supreme Court, specifically disallows the interpretation advanced [by plaintiff]. Given the express prohibition of the use of a deceased party's discovery deposition in Rule 212(a)(5), we are not able to interpret Rule  212(a)(3) to let in portions or the entirety of such a deposition as former testimony. There is no Illinois case law or treatise language directly on point supporting [plaintiff's] theory throughout the 50-plus years that Illinois has recognized the two types of depositions.

The case is recommended for its review of the uses at trial of discovery and evidence depositions, as well as its discussion of the application of the former-testimony exception to the hearsay rule to depositions.

Electronic Discovery: Think About Admissibility Well in Advance of Trial

Electronic documents aren't automatically admissible just because they were produced to you by the other side. That's the message of a useful article in the National Law Journal: "Don't Let Your E-Evidence Get Trashed," by Jerold S. Solovy and Robert L. Byman.

Once you've assembled that stack of "hot documents," your job is only halfway done. Now it's time to start thinking about issues like authentication and hearsay.

In the quoted article, the authors mention a three-step approach: "seek a stipulation; barring that, propound a request for admission; and barring that, be prepared to establish authenticity and hearsay exceptions at trial."

In my own practice, I follow these steps but sometimes in a different order, sending the request for admission first. It's often once of the best ways to prod your busy opponent to start thinking about stipulations well in advance of trial. 

I suggested a form for authenticating electronic documents in "Authenticating Exhibits Using Requests for Admissions: Two Methods." Look at the second method.

Related post: "Electronic Discovery: Don't Get So Caught Up in the Form that You Neglect the Substance."

Related sections from my book Deposition Checklists and Strategies (for readers who own it):    

1. §6:73 Practice Tip: Discovery of E-Mails

2. §6:76 Practice Tip: Admissibility of Employee E-Mails

Electronic Discovery: Don't Get So Caught Up in the Form that You Neglect the Substance

Legal commentator Craig Ball has an important message for the "trial lawyers in the trenches" who spend time working on electronic discovery:

We need to devote more time to thinking about what the evidence is instead of where it lodges. Too often, we fixate on the containers — the e-mail, spreadsheets and databases — with insufficient regard for the content. This isn't just a rant against producing parties. I see the failure as well in requesting parties determined to get to the other side's tapes and hard drives but unable to articulate what they're seeking.

Saying, "I want the e-mail" is as meaningless as saying, "I want the paper." E-mail, voicemail, ledgers or lipstick on the mirror are just media used to hold and convey information. It's the transaction and the content that make them evidence.

The form matters, but only for reasons of accessibility (Can I view or hear it?), preservation (How do I protect it?), utility (Can I search and sort it?), completeness (Is something added or absent?) and authentication (Can I rely on it?).

Pondering the essential nature of evidence can't remain the exclusive province of law review commentators and law school professors.

As never before, trial lawyers in the trenches must think hard about just what is the evidence? What are we really looking for? What gets us closer to the truth?

The quoted passage comes at the end of Ball's recent column about e-discovery in Law Technology News: "E-Evidence: Who Let the Dogs Out?" If you want to know why you might be wasting time asking the wrong questions about e-discovery, read the whole thing.

Proving Up Medical Bills #4: More About Reasonableness

In most jurisdictions, including Illinois, proving up medical bills at trial requires evidence that the charges for medical services were reasonable. Usually, the reasonableness of a bill can be easily established with proof that the bill was paid. But what if the bill hasn't been paid yet?

If the bill hasn't been paid, you'll have to work a little harder. Testimony about reasonableness can come from the following sources:

• A treating or physician can testify about the usual, fair, and customary charges for the treatment given to the plaintiff. Since physicians often won't have the requisite personal knowledge, as when a plaintiff receives treatment in a hospital, you'll often have to look elsewhere for the testimony.
• A non-treating physician listed as an expert who has knowledge of the usual, fair, customary charges can give an opinion about the reasonableness of the plaintiff's medical bills.
• An employee of the medical provider such as a custodian of records or credit manager with knowledge of the costs of the services provided to the plaintiff can testify about their reasonableness.

Cases on these points are easy to find in Lexis or Westlaw. Be sure to examine the case closely so that when you're questioning the witness, you can jump all the hoops required to lay a proper foundation. Also, when proving up medical bills, you should always consider doing so by means of requests for admission or stipulations. This is always more efficient than live testimony. Just remember to ask for stipulations well in advance of trial, since your opposing counsel is less likely to stipulate once you've waited too long to get your evidence by other means.

Related posts:

1. Proving Up Medical Bills #1

2. Proving Up Medical Bills #2

3. Proving Up Medical Bills #3

Admissibility of Medical Records as Business Records in Illinois

A recent case from the Illinois Appellate Court, Troyan v. Reyes (3d Distr. 9/29/06), contains a helpful primer for getting medical records into evidence without a doctor to sponsor them. Though plaintiff's counsel wanted to introduce medical records at trial, the doctors were not available to testify. As a work-around, plaintiff's counsel called the record keepers from the various hospitals and had them testify to the foundational requirements for business records, which are found in Illinois Supreme Court Rule 236.

Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter . . .

At trial, the record keepers testified to these foundational requirements. During closing, plaintiff's counsel wanted to publish the records to the jury. When the defendant objected, the trial court denied the request as to a radiology report and some of the other medical records that contained "observations, assessments, diagnoses and impressions of certain doctors."

On appeal, the Troyan court considered whether the medical records, which contained the opinions and diagnoses of absent doctors, should have been published to the jury under the business-records exception to the hearsay rule.

After setting out the foundational requirements for business records from Rule 236, the court made the following points:

• First, in order to introduce a record under the business-records exception to the hearsay rule, "it is not necessary that the author or creator of the record testify or be cross-examined about the contents of the record";
• Second, once a witness has established the foundational requirements, "the records themselves should be introduced";
• Third, these rules apply even to "diagnoses and opinions contained in medical records," which should be "admissible and published to the jury as a proper part of the business records exception to the hearsay rule";
• Fourth, there is an important exception: when the medical records either aren't relevant or are "too complex for the jury to understand on its own," then these rules do not apply and the medical records should not be introduced into evidence.

Applying these principles, the Troyan court held that the radiology report, which contained "complicated medical terminology," was "too complex and confusing to aid the jury absent medical testimony." Most of the other medical records were admissible, however, since the jury "could have easily understood the opinions and diagnoses contained" in the reports in that they did not contain "difficult medical terminology or opinions."

Related post: "Police Accident Reports and the Business Records Rule."

An Example of the Use of Demonstrative Evidence in a Modern Case

This is the second part of a post that began earlier this week with "The Use of Demonstrative Evidence in Civil Cases: A Brief History."

In modern trials, lawyers often incorporate demonstrative evidence into all parts of their cases. From David Ball on Damages comes an example of the way a plaintiff's lawyer might use such evidence during a life-care planner's testimony:

Show-and-tell. Turn your life-care planner's testimony into a magnificent show-and-tell. Have her bring things to court--the leg braces, the special dinnerware, the Velcro fasteners for clothing, the urinary catheter, etc. Pass these things around the jury.

Have your life-care planner teach the jury what these things are for, specifically how they are used, and what makes them work. Have her show videos of the kinds of therapy in her plan. Show a blow-up photo of the rehabilitation center.

Make everY important item memorable. Do that not with words but with the objects themselves (pass them around), with pictures, with videos, with tactile demonstrations. . . .

Words are never enough. Neither are tiny pictures from a medical supply catalog. Minimum life-care planners who do their jobs right probably need to drive large vans to haul all the stuff.

You get the idea. These paragraphs are directly descended from the views of Melvin Belli that I quoted in the first part of this post, and apply to counsel for plaintiffs as well as defendants. As David Ball says, when it comes to persuasion at trial, "Words are never enough."