THE PRICE OF FAILING TO GIVE A COMPLETE ANSWER TO THE EXPERT INTERROGATORY: $3,603,712

September 20, 2012 § 4 Comments

What is the price of numerous discovery violations, including failure to make timely disclosure of the substance of the expert’s expected testimony and failure to supplement seasonably?

In Ballard Realty, et al. v. Ohazurike, et al., decided September 6, 2012, the MSSC reversed a jury verdict of $3,602,712 for those very failures on the part of the plaintiffs to designate their expert properly and give a complete answer to the expert witness interrogatory.

The Ohazurikes had designated a witness, Dr. Glover, and answered the rest of the usual expert interrogatory that their expert was …

 expected . . . to testify to all things in her evaluations and opinions regarding the valuation of the lost income of the Plaintiffs and as to other things regarding the present value calculations and potential economic value and profitability of Plaintiffs company Upstart Games and the lost value of Plaintiff’s damages intellectual property board games.

The Ohazurikes attached a copy of the expert’s curriculum vitae (CV) as an exhibit to their designation of experts and added that “[a] copy of Dr. Glover’s report will be forwarded once it is received.” It was not until only five days before trial, on morning of the day that the expert was to be deposed that the report was received by opposing counsel. That report for the first time disclosed that the expert expected to project damages in excess of $15 million.

The defendants did file various motions with the court to try to get the expert testimony excluded, and they did object at trial based on the discovery violations, all to no avail. There was no other evidentiary basis in the record other than this particular expert’s testimony to support the $3 million-plus verdict, which the supreme court reversed.

Justice Randolph’s opinion explained:

¶14. We find that the trial court abused its discretion by allowing Glover to testify despite numerous discovery violations, including failure to timely disclose the substance of Glover’s expected testimony and to seasonably supplement discovery responses, and allowing the witness to give previously undisclosed testimony at trial. Mississippi Rule of Civil Procedure 26(b)(4) provides that “[a] party may through interrogatories require any other party to [1] identify each person whom the other party expects to call as an expert witness at trial, [2] to state the subject matter on which the expert is expected to testify, and [3] to state the substance of the facts and opinions to which the expert is expected to testify and [4] a summary of the grounds for each opinion.” Miss. R. Civ. Proc. 26(b)(4)(A)(i). Additionally, Rule 26(f) provides that “a party who has responded to a request for discovery with a response that was complete when made . . . is under a duty  seasonably to supplement that party’s response with respect to any question addressed to . . . the subject matter on which [a person expected to be called as an expert witness] is expected to testify, and the substance of the testimony.” Miss. R. Civ. Proc. 26(f). We have provided that “[t]he failure seasonably to supplement or amend a response is a discovery violation that may warrant sanctions, including exclusion of evidence.” Hyundai Motor Am. v. Applewhite, 53 So. 3d 749 (Miss. 2011) (citation omitted)

¶15. The Ohazurikes failed to comply with Rule 26. In their original designation of experts, they named Glover as an expert witness and identified the subject matter of her opinions, but failed to state the substance of the facts and opinions to which she was expected to testify or to provide a summary of the grounds for her opinions. Ohazurikes did not provide the Defendants with the substance of Glover’s opinion until the morning of her deposition, five days prior to trial. The Ohazurikes’ disregard for the rules of discovery continued to trial, when they violated Rule 26(f) by introducing for the first time a new opinion without having amended or supplemented their discovery responses. In Hyundai Motor America v. Applewhite, 53 So. 3d 749 (Miss. 2011), we provided that, where a party had failed to amend or supplement its discovery responses with material changes to an expert’s opinion, the trial court’s refusal to grant any relief was an abuse of discretion warranting reversal, because “[w]e do not condone trial by ambush. [The defendant] was entitled to full and complete disclosure of the plaintiffs’ expert testimony. . . .” Hyundai, 53 So. 3d at 759. The introduction of an entirely new lost-profits estimate clearly was a material change to Glover’s opinion, of which the Defendants were entitled to full and complete disclosure seasonably before trial. We refuse to condone the Ohazurikes’ failure to comply with discovery requirements. Accordingly, we find that the trial court’s refusal to grant the Defendants any relief for the Ohazurikes’ failure to comply with the mandates of Rule 26 was an abuse of discretion and, combined with other errors to be discussed infra, warrants reversal.

Those “other errors” will find their way into another post.

Experts appear often in chancery. They testify to the matters like the best interest of children, parties’ and children’s mental and physical health, land lines, valuations, damages, surveys, handwriting, water flow, investments, and on and on. Usually, when an expert is involved, there is a lot at stake, either emotionally or financially, or both.

I have not seen many disputes over the adequacy and/or timing of the expert disclosures. When they happen, though, the results can be cataclysmic. And when they are not cataclysmic at trial, they can turn out to be up the line, as the Ohazurikes learned.

I have refused to allow an expert to testify who was not timely designated 60 days before trial per UCCR 1.10. I even refused to allow an expert to testify where there was no answer at all to the expert interrogatory (the actual answer was to the effect that “None at this time. Timely supplementation will be made.” It wasn’t). But I have not yet had to weigh the adequacy of the substantive questions.

Read this case closely for what it can teach you about what won’t cut it as an expert-witness response, as well as what it can teach you about how to make a record of objections that will do the job on appeal.

TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #4

July 19, 2012 § Leave a comment

This is the seventh in a series counting down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor.

TOP TEN TIP #4 …

Make sure you have enough copies of exhibits to comply with UCCR 3.05.

Read and follow UCCR 3.05. It requires that you have a copy of each exhibit for the court and opposing counsel. And remember that if you take the original exhibit away from the judge to have the witness use it, the judge has no clue what you are asking the witness about. So have an extra copy of the exhibit for the witness.

Some lawyers go an extra step and provide the court with a “mark-up” copy of the financial statements so that the judge can make notes directly on a copy of the exhibit during examination of the witness. That’s a useful idea.

Rule 3.05 is merely a manifestation of the golden rule of chancery court, which is “The easier you make the judge’s job, the more likely it is you will prevail.”

PLEADINGS AND THE PROOF

November 1, 2011 § 2 Comments

“It is the pleading that makes the case for adjudication, and it is the evidence that sustains or defeats it upon the final hearing.”  Terry v. Jones, 44 Miss. 540, 1871 WL 8413 (1871).

Voilà! After 140 years and a sea-change in the rules of Mississippi pleading, that ancient formula holds oh-so true in our courts. The pleadings frame the issues; the evidence admitted at trial determines the outcome.

Put another way: THE PLEADINGS ARE NOT EVIDENCE.

This immutable principle has not only for ages been a bedrock of procedure in Mississippi courts, it has also been the rock that has dashed the case of many an unseasoned or unwary practitioner.

Don’t ever assume because you have pled something that the court will take it as true. On the contrary, without actual evidence in the record, the court can not take it as true, whether it wants to or not.

I have seen lawyers leave key elements of their cases lying on the court room floor simply because they neglected to offer proof thereof. This is a chronic problem when it comes to claims for attorney’s fees, but the problem is not limited to that issue. I see Rule 59 motions more frequently than I’d like where the motion claims I “overlooked” a point, but the attorney concedes that the witness never testified about the matter. I should grant the motion, the lawyer pleads, because it was, after all, in the pleadings.

Here’s the deal: If you don’t include a properly-pled issue in your pleadings, the court can not consider it. BUT, just because it is in your pleadings does not mean it is established; you still have to put on evidence in support of it.

AN OBJECTIONABLE OBJECTION

September 14, 2011 § 4 Comments

One of the most baffling objections is “Object to the form of the question.” It’s baffling because it doesn’t tell the judge what the real problem is.

It’s actually a lazy objection because it is several objections in one. Problems with the form of the question arise from nine distinct sources, each of which is a separate objection in its own right.

These are the real objections to the form of the question:

  • Leading. MRE 611(c) says that “Leading questions should not be used on the direct examination of a witness except as may be used to develop his testimony.” Which means that the judge may grant some leeway in order to ensure that testimony is developed. Leading is, of course, permitted on cross examination, for hostile or adverse witnesses, and for preliminary matters.
  • Compound question. You can ask only one question at a time. Often the witness answers only one of multiple questions, not always making it clear which one she is answering.
  • Argumentative and Harrassing. This is really two different things. A question is argumentative when it is merely a comment on the evidence, or a legal argument, or an attempt to get the witness to adjudge his own credibility. A question is harassing when the probative weight of the information sought is outweighed by the embarassment to the witness or its outrageous nature. UCCR 1.01 states that “The counsel, parties, and witnesses must be respectful to the court and to each other,” and “Bickering or wrangling between counsel or between counsel and witness will not be tolerated.”
  • Asked and answered. You enjoyed the answer so much the first time that you just can’t resist doing it again.
  • Assumes facts not in evidence. You have broad scope within the bounds of relevance to develop new facts, but not by framing your questions in such a way that they take as true facts that have not been established. In chancery, with no jury, this is a touch-and-feel objection that the judge may overrule and then disregard the answer.
  • Ambiguous and confusing. A question is ambiguous when it is susceptible to more than one interpretation. A question is confusing when it is phrased in such a way that it can be misunderstood.
  • Misleading. Misstatement of the witness’s or another witness’s prior testimony.
  • Narrative. The question calls for a recitation of the whole story, which may or may not include objectionable material.
  • Repetitious. You already made that point. Move on to something else.

Unless you’re objecting just to hear yourself talk, you want your objections to accomplish something for the benefit of your client. General objections like “Object to the form of the question” are an objectionable waste of time. Your chances of getting your objection sustained go up when you make a specific objection.

SURREBUTTAL SURVIVES

April 28, 2011 § Leave a comment

Not long ago an attorney asked to be allowed surrebuttal.  I refused the request and quipped that surrebuttal had been deep-sixed by the MRCP.

I was wrong.  About the MRCP, anyway.

Actually, the MRCP does not even mention surrebuttal.  I do remember a discussion about surrebuttal in the various seminars we had around 1982-3 in preparation for the effective date of the “new” rules.  The common wisdom in those sessions was that the old practice in chancery for liberal surrebuttal was going away.  In the ancient, pre-rules days it was common practice to get trampled by an older lawyer who was invariably afforded one or even more “surrebuttals” that he used skillfully to repair whatever damage you had done or points you had scored in your examination of a witness.

After the new rules went into effect, that practice thankfully died out in our district, and every other one where I set foot, and since then one rarely hears requests for surrebuttal — as on that day in my court not long ago.

The matter is covered by UCCR 3.02, which provides in part:

 The examination of witnesses shall be limited to the direct examination, the cross-examination, and the redirect examination concerning matters brought out on cross-examination. Counsel for either party may be permitted, on request, to inquire about new matters pertinent to the issues which may have been inadvertently omitted. Opposing counsel may also inquire concerning the same matter.

There you have it.  It’s what we used to call surrebuttal.

Nowadays it arises mainly in situations where the court allows evidence in over the objection that the question is “outside the scope of rebuttal.”  In McGaughy v. State, 742 So2d 1091, 1094 (Miss. 1999), the court said, “Where there is doubt as to whether the evidence is properly case-in-chief or rebuttal evidence, the trial court should resolve the doubt in favor of reception in rebuttal if: (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.”

It is error to permit the introduction of case-in-chief evidence in rebuttal where the evidence clearly should have been offered in the case in chief.  Hosford v. State, 525 So.2d 789, 791-92 (Miss. 1988).  But where it is not clear, introduction is within the discretion of the trial judge and will be reversed only if the decision is found to be arbitrary and capricious.  Smith at 1095.

After the court has allowed in the testimony, you may request further questioning under UCCR 3.02.

To preserve the point for appeal, you need to object timely when your opponent offers evidence in rebuttal that should have been offered in the case in chief.  If the court overrules the objection, ask immediately for surrebuttal or explain to the court why you will be unable to meet the evidence and how it will prejudice your client.

In the case in my court, I did not see that surrebuttal was necessary or desirable to meet anything offered in rebuttal, but it’s an interesting point that arises rarely in chancery court.

GETTING THAT SUMMARY INTO EVIDENCE

March 9, 2011 § Leave a comment

I’ve talked here before about the beauty of MRE 1006, which allows you to summarize voluminous records and admit the summary into evidence.  The charm of the rule is that (1) it eliminates the need for tedious searching through documents to locate the nuggets you need and eliminates as well the tedious testimony it takes to do that, and (2) it makes the judge’s job easier, which makes the judge happier, and a happier judge is better for your case than a grumpy one.

So you’ve gone and condensed those ten years of credit card statements into a summary showing the expenditures for jewelry for the opposing party’s girlfriend, their trips to Gulf Shores, the vacation spending on the family, and the payments on the credit card showing that he never ran a balance until the separation, when the balance began to balloon.  All great stuff, and it’s going to help your alimony claim big time.

You proudly offer the summary and your wily opponent objects.  Sustained.  Every attempt you make to get the summary in meets with an objection.  Sustained.  You close your eyes and silently curse the judge who gave you the idea to go to all the trouble to do the summary in the first place.  Where did you go wrong?

Well, you have to lay a foundation first.

To get a Rule 1006 summary into evidence, you have to establish 5 things:

  1. That the original writings, recordings or photographs are, in fact, voluminous;
  2. That the originals can not be conveniently examined in court;
  3. That the originals, or duplicates, have been made available for examination or copying, or both, by the other party at a reasonable time and place;
  4. That the originals would be admissible in evidence; and
  5. That the chart, summary or calculation offered in lieu of the voluminous originals is fair and accurate.

Now, let’s rewind the above scenario and do it right (assuming you’ve already laid a foundation for entry of the credit card statements):

You:  Mrs. Smith, did you have an opportunity to examine all 120 of the MasterCard statements?

Witness:  Yes, I did.

You:  How many pages of statements were there?

Witness:  More than 600.

You:  After you examined them, what did you do?

Witness:  I extracted certain information, collated it into categories, and organized it into a summary.  I also highlighted the various charges on the original duplicates in colors corresponding with the categories.

You:  Does your summary fairly and accurately duplicate and summarize the information in the credit card statements?

Witness:  Yes.

You:  Your honor, I would ask that the record reflect that I did make the original credit card statements available to counsel opposite for examination and copying in discovery more than three months ago.

Counsel Opp:  That is correct, Judge.

You:  I offer the summary into evidence.

Counsel Opp:  Objection.  Best evidence rule, hearsay, self serving, redundant and cloud of witnesses.

Judge:  Overruled.  Let the document be marked as the next numbered exhibit and admitted into evidence.

That’s really all there is to it.  When the judge is poring over his notes and the exhibits to adjudicate the case, he will be extremely grateful that he has that nice summary to use instead of having to dig through 600 pages of credit card statements with thousands of transactions.  Not only that, he will be less likely to overlook something you considered critical.  The extra money your client has to spend for you to prepare the summary will be worth every dollar.

Wells v. State, 604 So.2d 271, 274-5 (Miss. 1992) is a case that illustrates the use and authentication of a summary in a jury trial.

LAYING THE FOUNDATION FOR A BUSINESS RECORD

March 3, 2011 § 1 Comment

Business records play a role in many chancery court matters.  Getting them into evidence can sometimes be crucial to your case.

MRE 803(6) allows introduction of business records, and states that they are “not excluded by the hearsay rule, even though the declarant is available as a witness.”  Before you can get the records into evidence, however, you must lay a foundation that the records come within the rule.  The four elements of foundation are:

  1. The record was made and kept in the course of regularly conducted business activity;
  2. The record is one that is routinely made and kept in the course of business, in the business’s usual practice;
  3. The record was made at or near the time of the event that it records; and
  4. The record was made by a person with knowledge, or from information transmitted by a person with knowledge, and who reported such knowledge in the regular course of business.

The witness who establishes the four elements will be either the record custodian or “other qualified witness,” who may be any person who can testify that the records satisfy the four elements.  The witness need not have personal knowledge of the contents, nor is it required that the witness was custodian at the time the record was made.  All that is required is that the witness have knowledge of the procedures under which the records were made and maintained.  In H & E Equipment v. Floyd, 959 So.2d 578, 581 (Miss. App. 2007), the trial court properly excluded the invoices upon which the plaintiff sought to sue on open account because the custodian failed to explain how the invoices, many of which were reprints, were created, or that the invoices relied on were created at the time the charges were incurred. 

Under the rule, the focus is on when the documents were created, their trustworthiness, and whether they were created in the course of regularly conducted business.  Ferguson v. Snell, 905 So.2d 516, 519-520 (Miss. 2004).  In Bower v. Bower, 758 So.2d 405, 414-415 (Miss. 2000), husband offered the monthly internet bills to prove wife’s internet usage, and the husband’s testimony was the only authenticating testimony offered.  The supreme court held that the trial court properly excluded them as not being proven to be business records; if you click through the criteria above, you can see that husband’s testimony did not meet them.

The fact that the records are maintained on a computer or in a data file does not require any additional foundation requirements. 

The person who generated the information in the record must have had personal knowledge, but the person who entered or recorded the information need not have personal knowledge.  For example, an employee of the business observes a chemical process and records the temperatures, reactions and times involved in hand-written notes, which she then tenders to a stenographer who turns the notes into a typed record that is maintained by a custodian.  The employee who observed must have had first-hand knowledge when the notes were made and if called as a witness, but neither the stenographer nor the custodian are under the same requirement simply to authenticate the documents as business records.  In Dillon v. Greenbriar Digging Service, 919 So.2d 172, 174 (Miss. App. 2005), it was held that the trial court properly let in an inspection report, even though the inspector/custodian who testified was not the inspector who performed the documented inspection, because he adequately authenticated it as a business record.    

If the record includes a statement by a person who is not a part of the business and is under no duty to make the report, and the statement is offered to prove the truth of the matter asserted, it will be treated as hearsay that is inadmissible, unless it can be shown to come within an exception to the hearsay rule.  An example:  The business’s employee reports the contents of a conversation he had with a customer.  If the statement is offered to prove the truth of the matter asserted by the customer, it is hearsay and will not be allowed in unless it comes within an exception, such as the customer’s own statement offered against him.  In Bingham v. State, 723 So.2d 1189, 1190 (Miss. App. 1998), the court of appeals held that a police officer’s report may be admitted only to prove matters observed by the officer, but not to prove inadmissible matter such as the hearsay statements of persons interviewed by the officer.  Copeland v. City of Jackson, 548 So.2d 970, 975 (Miss. 1989).  But see, Watson v. State, 521 So.2d 1290, 1294 (Miss. 1990), where the supreme court upheld admission of letters of complaint from customers maintained by a bank on the basis that the documents were made a part of the ban business records. 

It sometimes happens that records generated by third parties become part of a business’s records.  An expert’s report and recommendations, for instance, may be included in the records of a project.  The expert’s testimony would not be required for introduction of the report if:  (1) the custodian can establish that the expert’s report was incorporated into records kept in the normal course of business; (2) that the business keeping the record relies on its accuracy in the conduct of its business; and (3) “other circumstances” indicate the trustworthiness of the document.  Documents that are prepared for litigation or “litigation inspired” are generally found to lack trustworthiness.  Jones v. Hatchett, 504 So.2d 198, 201 (Miss. 1987); See, e.g., Gilbert v. Ireland, 758 So.2d 1050, 1053-1054 (Miss. App. 2000) 

When the source of the information is an outsider who is not a member of the business organization, the statement may be admissible if there is proof that there is a regular practice of verification by an employee so that the outsider’s statements are adopted by the business and become its own statements.  An example of an admissible outsider record would be an invoice submitted by an outside company that is verified by an employee, matched to a purchase order of the business, and attached to records in the business’s files.  An example of an inadmissible outsider statement would be a letter from someone not connected with the business that is merely placed in the files of the business.  

Objections that the records include ambiguous or inaccurate statements or that they are incomplete go to the probative weight and not to admissibility.

Proof of matters based on absence of entries in business records and admissibility of public records are subjects of other posts.

MRE 902 addresses self-authentication, which may apply to some business records.

ADMITTING A PHOTOGRAPH INTO EVIDENCE

January 24, 2011 § 2 Comments

One of the simplest tasks of a trial lawyer is to get a photograph admitted into evidence, but I have seen some painful exercises as lawyers strive mightily against repeated objections in their task.

Only two things are required to be shown:

  1. That the witness knows relevant facts about the scene or objects represented in the photo; and
  2. That he or she can say that it correctly and accurately portrays those facts (or, as many of us say, “It is a true and accurate depiction …”).

It is not necessary for the witness to establish the date when the photograph was taken because it does not matter what date it was taken if the condition is unchanged.  It is not required that the witness describe how the camera mechanism was properly calibrated, or to establish a chain of custody or any other such thing, although I did have a chancellor years ago sustain objection after objection until I guessed that he was requiring me to ask the witness to identify who took the photos.  But that judge was in error; who took the photos is not relevant to admissibility.  All that is necessary is for the witness to establish knowledge of the matters depicted and to affirm that the photo does truly and accuractely depict the conditions he observed.

For example:

Q.     Where is the field located where the body you described was found?

A.     Adjacent to my farm house. 

Q.     Are you familiar with that field?

A.     Yes, I am in and around that field every day.

Q.     Did you observe the field on the day that the body was found, and in particular the area where it was found?

A.     Yes, it was I who found the body while I was working in that field.

Q.     Let me show you a photograph and ask you if you can tell me what it shows.

A.     This is a picture of the field.

Q.     Is this picture a true and accurate depiction of the condition of the field that you observed on that day?

A.     Yes.

Then offer it into evidence.

I hope this helps.

UNDERSTANDING THE BEST EVIDENCE RULE

January 12, 2011 § 8 Comments

I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule).

It’s fairly common to hear an exchange like this in court:

Atty 1:     How much did you pay for the house?

Atty 2:     Objection. The best evidence of what was paid would be the closing statement.

That objection and every one like it should be overruled.

MRE 1002 states:

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by law.  [Emphasis added]

The rule only applies and requires the original when a party is seeking to prove the content of the original.  Farris v. State, 906 So.2d 113, 115 (Miss. App. 2004).  It does not apply simply because there exists a writing, recording or photograph that may be considered the “best” evidence of the matter. 

The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a party is trying to prove a matter by using a writing, recording or photograph as evidence of it.  The rule applies only when one seeks to prove the contents of the writing, photograph or recording so that they may be construed, and does not apply when one is seeking only to prove the existence of a writing, recording or photograph.  Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).

An example of (a) would be where the party is trying to testify to the terms of a written contract.  The contract itself would be the best evidence, and the original would need to be produced.

An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of purchase and prices.  The original invoice would itself establish the claim and would be the best evidence of the transaction.

The rule would not apply to the following situations:

A witness with personal knowledge can testify about how much he earned in a pay period without producing the original pay records.  Simply because written documents pertaining to a matter exist does not mean that a witness may not testify on personal knowledge about the matter.  On the contrary, though, if the witness does not have personal knowledge and relies on documents for her information, she would be required to produce the original documents.

A witness may testify that a document exists without producing the original, but any testimony about the document’s content will require production of the original.

A person who heard another make a statement that was recorded may testify about what she heard without having to produce the recording.

The rule does not apply to physical evidence that is not writings, photographs or recordings.  Riley v. State, 1 So.3d 877, 882 (Miss. App. 2008).  In Riley, the appellant argued unsuccessfully that the State had violated the best evidence rule by not offering the original firearm involved in the crime into evidence.

The evidence qualifies as a “duplicate,” as defined in MRE 1001(4).

So here is the bottom line:  A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing, and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its content.

An important caveat:  Just because you have satisfied MRE 1002 by producing the original does not in and of itself make that original admissible.  The document or recording must still meet authentication and hearsay objections, and a foundation must be laid for admission of the photograph.

MRE 1004 provides some exceptions to the requirement for the original, such as loss or destruction of the original, original not obtainable, or original in possession of an opponent.  Production of the original may also be dispensed with if the document, recording or photograph pertains only to collateral matters.

A THOUSAND WORDS’ WORTH

November 29, 2010 § 1 Comment

Rule 1006 of the Mississippi Rules of Evidence allows you to offer charts, summaries or calculations where the evidence is so voluminous that it would be inconvenient to develop it in the course of testimony.  The procedure is simple:  The originals are produced at a reasonable time and place for inspection and copying, and the court may order that they be produced in court, although introduction of the originals is not required, according to the official comment to the rule.

The advantages of this rule can be pretty significant.  It can improve your effectiveness in presenting complex proof, and give you an edge over an opponent who is too lazy to avail himself of it.

Here are a few examples:

  • There is a claim of wasteful dissipation of assets based on abuse of a credit card over a three-year period.  There are literally hundreds of transactions.  Instead of dumping the statements into evidence, prepare a chart showing yearly and monthly totals.  Another chart could highlight spending trends, such as dates and amounts of casino cash advances, jewelry purchases and so on.  Witnesses can then be questioned about particular aspects of the matter without laborious testimony to establish the underlying transactions.
  • Six years of tax returns are relevant.  Chart the income and taxes paid, or the depreciation and deductions claimed, rather than tediously poring over them.
  • The other party has fluctuating income.  Use charts and graphs to illustrate.

A variation on this theme is to present your client’s position in a concise written form, as, for instance, where your client is requesting particular provisions for visitation.  Have the proposed visitation arrangement reduced to writing and have your client testify about the key articles.  Introduce the proposed arrangements through your client.

As always, put yourself in the judge’s shoes.  If all you do is put 76 credit card statements in evidence with some testimony of a witness or two, are you sure that the judge will draw all the conclusions that you want her to?  If all you do is put tax returns into evidence with some testimony, will the judge in his deliberations focus in on exactly what you need to win?  Which evidence is more likely to get a detailed, thorough going over:  raw documents with some notes taken by the judge; or a chart that focuses the judge’s attention like a laser on the details you need?

Rule 1006 is a super tool.  It lets you reduce literally thousands of words (and, consequently judge’s notes) into a picture.  And we all know how many words a picture is worth.

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