Being a trial lawyer is no easy feat. It requires a unique set of skills, knowledge, and experience to navigate the complexities of the courtroom. Whether you're just starting your journey as a trial lawyer or looking to enhance your skills, here are five essential lessons that every trial lawyer should learn:
One of the most crucial lessons for any trial lawyer is the importance of preparation. A successful trial lawyer leaves no stone unturned when it comes to gathering evidence, researching case law, and anticipating potential arguments and objections, and preparing evidence for admission at trial. By thoroughly preparing for each case, a trial lawyer can build a strong foundation for success in the courtroom.
Use eLEX's ULTIMATE Evidentiary Objection & Evidence Foundations Guide when preparing for trial - the ULTIMATE will help you get any item of evidence that admissible admitted!
Effective storytelling is a powerful tool in the arsenal of a trial lawyer. Being able to craft a compelling narrative that resonates with the judge and jury can make all the difference in a case. By presenting the facts in a clear and engaging manner, a trial lawyer can captivate the audience and effectively advocate for their client's position.
Joe Bodiford's book A Short & Happy Guide to Trial Advocacy contains great tips for crafting and delivering winning stories at trial. Joe is a veteran trial lawyer, board certified in trial law by the Florida Bar and the National Board of Trial Advocacy, and a NITA Certified Advocate. He has taught trial advocacy for years at the #1 ranked trial school, Stetson Law. His experience can help you.
No two cases are the same, and as a trial lawyer, it's crucial to be adaptable. Each case presents its own unique challenges and requires a tailored approach. Being able to quickly assess the situation, adjust strategies, and think on your feet is a skill that can greatly impact the outcome of a trial.
Cross-examination is a critical skill for any trial lawyer. It involves questioning witnesses from the opposing side to challenge their credibility and poke holes in their testimony. Mastering the art of cross-examination requires careful planning, active listening, and the ability to think quickly. A skilled trial lawyer knows how to ask the right questions to elicit the desired responses.
Joe Bodiford's Cross Examination in a Nutshell is a perfect companion for both the learner and the seasoned attorney. eLEX Cross Examination Witness Worksheets will also give you the upper hand.
Professionalism and integrity are the cornerstones of being a trial lawyer. It's essential to maintain a high level of professionalism both inside and outside the courtroom. Treating all parties with respect, adhering to ethical standards, and conducting oneself with integrity are qualities that not only build a strong reputation but also contribute to the overall success of a trial lawyer.
Being a trial lawyer is a lifelong journey of learning and growth. By embracing these essential lessons, aspiring trial lawyers can set themselves on a path to success in the courtroom.
]]>The program will be launching January 2020! We are very excited to be offering advanced study and training for trial lawyers.
The A.T.T.A.C. program will consist of a 10 part video series, that will result in the award of a Certificate of Completion. Let the world know you've achieved a new level of understanding and are infusing advanced techniques into representing your clients!
We will also be offering private one-on-one advocacy lessons, much like you'd take if studying the piano or trumpet. These lessons can be general or case-specific (perhaps for an upcoming trial). The advocacy lessons will be offered live or online.
eLEX is pleased to announce that as a part of the A.T.T.A.C launch, it will be building its own practice courtroom at its main offices in Tallahassee in the summer of 2020.
Please contact Joe Bodiford (joe@elexpublishers.com) with any questions.
]]>Hearsay - out of court statement, offered for the proof of the matter asserted . . . six points for authentication of business records . . . leading . . . best evidence . . . and the list goes on.
eLEX's ULTIMATE Guide is perfect for going back to trial armed and ready. Not only does it have the 28 Evidentiary Objections, but it has the litanies (list of questions) for authenticating just about anything you want to put into evidence. Impeachment and refreshing recollection are in there, too.
DON'T GO TO COURT WITHOUT IT!
]]>TALLAHASSEE July 24, 2019 -- eLEX Publishers has been selected for the 2019 Best of Tallahassee Award in the Publisher category by the Tallahassee Award Program.
Each year, the Tallahassee Award Program identifies companies that we believe have achieved exceptional marketing success in their local community and business category. These are local companies that enhance the positive image of small business through service to their customers and our community. These exceptional companies help make the Tallahassee area a great place to live, work and play.
Various sources of information were gathered and analyzed to choose the winners in each category. The 2019 Tallahassee Award Program focuses on quality, not quantity. Winners are determined based on the information gathered both internally by the Tallahassee Award Program and data provided by third parties.
The Tallahassee Award Program is an annual awards program honoring the achievements and accomplishments of local businesses throughout the Tallahassee area. Recognition is given to those companies that have shown the ability to use their best practices and implemented programs to generate competitive advantages and long-term value.
The Tallahassee Award Program was established to recognize the best of local businesses in our community. Our organization works exclusively with local business owners, trade groups, professional associations and other business advertising and marketing groups. Our mission is to recognize the small business community's contributions to the U.S. economy.
SOURCE: Tallahassee Award Program
]]>In a new opinion from the Fourth District Court of appeal, we have a holding that a photo (screenshot) of a contact from a cell phone address/contact book is non-hearsay, when offered for the limited purpose of proving that the owner of the cell phone had a connection to the person in the contact.
The actual screen shot of the contact (from the opinion)
The State of Florida offered the photo, taken from the co-defendant's phone, NOT to show that the phone number was that of the defendant, but simply that the co-defendant knew and had a connection to the defendant.
The data entry of the phone number into the cell phone and the photograph was not made at the trial or hearing, as the photograph would have been hearsay if offered to establish Henry's phone number. The court cited to cases from the Federal Courts, Texas and New England for the premise that
The contact information screen here at issue is tantamount to a modern-day entry in an address book. Courts have generally held a witness's address book entry to be non-hearsay when used for the limited purpose of proving association between the maker of the address book and another.
Thus, the photograph of the contact information screen was admissible for the limited purpose of linking the co-defendant and the defendant.
Henry v. State of Florida, --- So. 3d ---, 44 Fla. L. Weekly D267a (Fla. 4th DCA 2019)
]]>The docket sheet accompanying a judgment is admissible as a public record; it is a document maintained by the trial court clerk setting out the trial court’s activities. See Tex. R. Evid. 803(8)(A)(i).
Fingerprint cards taken at time of booking are not testimonial, rather are "routine business matters". See Tex. R. Evid. 803(8)(A)(ii). Fingerprint cards are not of the inherently adversarial and potentially unreliable nature that would require its exclusion under rule 803(8)(A)(ii) and that the trial judge did not abuse his discretion by admitting it.
Emich v. Texas, 2019 WL 311153 (Jan. 24, 2019).
]]>For your convenience, the text of the actual amendments is as follows:
PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE
Rule 5. Serving and Filing Pleadings and Other Papers
* * * * *
(b) Service: How Made.
* * * * *
(2) Service in General. A paper is served under this rule by:
(A) handing it to the person;
* * * * *
(E) sending it to a registered user by filing it with the court’s electronic-filing system or sending it by other electronic means that the person consented to in writing—in either of which events service is complete upon filing or sending, but is not effective if the filer or sender learns that it did not reach the person to be served; or
* * * * *
(3) Using Court Facilities. [Abrogated (Apr. 2018, eff. Dec. 1, 2018.)]
* * * * *
(d) Filing.
(1) Required Filings; Certificate of Service.
(A) Papers after the Complaint. Any paper after the complaint that is required to be served must be filed no later than a reasonable time after service. But disclosures under Rule 26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing: depositions, interrogatories, requests for documents or tangible things or to permit entry onto land, and requests for admission.
(B) Certificate of Service. No certificate of service is required when a paper is served by filing it with the court’s electronic-filing system. When a paper that is required to be served is served by other means:
(i) if the paper is filed, a certificate of service must be filed with it or within a reasonable time after service; and
(ii) if the paper is not filed, a certificate of service need not be filed unless filing is required by court order or by local rule.
(2) Nonelectronic Filing. A paper not filed electronically is filed by delivering it:
(A) to the clerk; or
(B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk.
(3) Electronic Filing and Signing.
(A) By a Represented Person—Generally Required; Exceptions. A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.
(B) By an Unrepresented Person—When Allowed or Required. A person not represented by an attorney:
(i) may file electronically only if allowed by court order or by local rule; and
(ii) may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions.
(C) Signing. A filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.
(D) Same as a Written Paper. A paper filed electronically is a written paper for purposes of these rules.
* * * * *
Rule 23. Class Actions
* * * * *
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
* * * * *
(2) Notice.
* * * * *
(B) For (b)(3) Classes. For any class certified under Rule 23(b)(3)—or upon ordering notice under Rule 23(e)(1) to a class proposed to be certified for purposes of settlement under Rule 23(b)(3)—the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice may be by one or more of the following: United States mail, electronic means, or other appropriate means. The notice must clearly and concisely state in plain, easily understood language:
* * * * *
(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:
(1) Notice to the Class.
(A) Information That Parties Must Provide to the Court. The parties must provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class.
(B) Grounds for a Decision to Give Notice. The court must direct notice in a reasonable manner to all class members who would be bound by the proposal if giving notice is justified by the parties’ showing that the court will likely be able to:
(i) approve the proposal under Rule 23(e)(2); and
(ii) certify the class for purposes of judgment on the proposal.
(2) Approval of the Proposal. If the proposal would bind class members, the court may approve it only after a hearing and only on finding that it is fair, reasonable, and adequate after considering whether:
(A) the class representatives and class counsel have adequately represented the class;
(B) the proposal was negotiated at arm’s length;
(C) the relief provided for the class is adequate, taking into account:
(i) the costs, risks, and delay of trial and appeal;
(ii) the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims;
(iii) the terms of any proposed award of attorney’s fees, including timing of payment; and
(iv) any agreement required to be identified under Rule 23(e)(3); and
(D) the proposal treats class members equitably relative to each other.
(3) Identifying Agreements. The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) New Opportunity to Be Excluded. If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Class-Member Objections.
(A) In General. Any class member may object to the proposal if it requires court approval under this subdivision (e). The objection must state whether it applies only to the objector, to a specific subset of the class, or to the entire class, and also state with specificity the grounds for the objection.
(B) Court Approval Required for Payment in Connection with an Objection. Unless approved by the court after a hearing, no payment or other consideration may be provided in connection with:
(i) forgoing or withdrawing an objection, or
(ii) forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.
(C) Procedure for Approval After an Appeal. If approval under Rule 23(e)(5)(B) has not been obtained before an appeal is docketed in the court of appeals, the procedure of Rule 62.1 applies while the appeal remains pending.
(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered, or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States’ behalf. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
* * * * *
Rule 62. Stay of Proceedings to Enforce a Judgment
(a) Automatic Stay. Except as provided in Rule 62(c) and (d), execution on a judgment and proceedings to enforce it are stayed for 30 days after its entry, unless the court orders otherwise.
(b) Stay by Bond or Other Security. At any time after judgment is entered, a party may obtain a stay by providing a bond or other security. The stay takes effect when the court approves the bond or other security and remains in effect for the time specified in the bond or other security.
(c) Stay of an Injunction, Receivership, or Patent Accounting Order. Unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken:
(1) an interlocutory or final judgment in an action for an injunction or receivership; or
(2) a judgment or order that directs an accounting in an action for patent infringement.
(d) Injunction Pending an Appeal. While an appeal is pending from an interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. If the judgment appealed from is rendered by a statutory three-judge district court, the order must be made either:
(1) by that court sitting in open session; or
(2) by the assent of all its judges, as evidenced by their signatures.
* * * * *
Rule 65.1. Proceedings Against a Security Provider
Whenever these rules (including the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions) require or allow a party to give security, and security is given with one or more security providers, each provider submits to the court’s jurisdiction and irrevocably appoints the court clerk as its agent for receiving service of any papers that affect its liability on the security. The security provider’s liability may be enforced on motion without an independent action. The motion and any notice that the court orders may be served on the court clerk, who must promptly send a copy of each to every security provider whose address is known.
]]>
Where a voice identification witness may acquire a special familiarity with the defendant's identity at any time prior to trial, that witness may then make that identification before a jury. F.S. 90.701.
]]>The Florida Supreme Court decided Johnson v. State (SC17-845) on September 6, 2018. It receded from a prior position, and now holds that where a voice identification witness may acquire a special familiarity with the defendant's identity at any time prior to trial, that witness may then make that identification before a jury.
Following is the text from the case, with the agent's name removed:
The lesson learned is that prior to trial, the witness must make great efforts to become familiar with the defendant's voice, such to constitute a "special familiarity".
]]>In Raymond v. State, 43 Fla. L. Weekly D2460a (Court Case No. 5D17-2759), Raymond was charged with attempted second degree murder of his mother. Allegedly, he fired a shotgun over her head while she was in her bedroom. She called 911, and was "distraught . . . crying" and told the 911 operator what happened and "he's going to kill me . . . hurry . . . please hurry."
Officers arrived on scene - Raymond was gone, and his mother was "crying hysterically and shaking uncontrollably" as she relayed the incident.
ISSUE: did admitting the mother's statements in the 911 call and to the officers on scene violate the Confrontation Clause, and were they improperly admitted hearsay?
HELD AS TO 911 CALL: not testimonial, as the statements described events "as they were actually happening" in order to assist law enforcement. The 911 call statements met the excited utterance exception to hearsay under 90.803(2) (made regarding a startling event before there was time to contrive or misrepresent while the person was in under the stress or excitement caused by the event).
HELD AS TO STATEMENTS TO OFFICERS ON SCENE: testimonial, as the statement occurred after the threat ceased and were the result of police interrogation intended to capture historical information.
REVERSED: Raymond's mother did not testify and was not "ever cross-examined" thus the Confrontation Clause was violated. The error was not harmless, as the state could not have established beyond a reasonable doubt Raymond's guilt for second-degree murder in the absence of the improperly admitted testimony.
*EDITOR'S TAKEAWAY NOTE: Remember your Crawford analysis:
In Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court discussed in depth the history of the Confrontation Clause. The Court held that “[w]here testimonial evidence is at issue . . . the Sixth Amendment demands [witness] unavailability and a prior opportunity for cross-examination.” Id. at 68. The Court left open the precise qualities of testimonial statements but provided that “[w]hatever else the term covers, it applies at a minimum to . . . police interrogations.” Id.
In two consolidated cases, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006), the Court defined the nature of testimonial statements. Both cases involved statements officers obtained in the course of their investigations. The Court explained:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822.
]]>
We recognize that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. Both purport to provide a trial judge with the tools necessary to ensure that only reliable evidence is presented to the jury. Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. With our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.
So, it appears that Florida goes back to the simple "general acceptance" theory. Watch for a rule change soon.
The opinion can be found here.
]]>The number one thing I am asked as a teacher of advoacy is about how to make objections. Like a football referee, you must know the rules in order to use them as a tool, a sword, and a shield. Here are some quick ideas on how to make trial objections.
First, you have to know the objections. Using eLEX's Federal Rules of Evidence Summary Trial Guide is the best place to start - on the back cover, you have the 28 most common objections at your fingertips. What's more, each objection cites to the relevant rule.
Second, know your case. Anticipate hearsay, relevance, things a witness may speculate about, and the like. You have your entire case well in advance of trial - why not go through everything and make a note of the objection you know you'll make? Better yet, know what objections your opponent will make, and have your arguments ready as to why the testimony or piece of evidence is admissible. If you are really on your game, you may file a motion in limine to get a ruling on the evidence before the trial even starts. Motions in limine are especially recommend (and appreciated by judges) when the issue is complicated and requires argument outside of the jury's presence. Compare your case to the Federal Rules of Evidence - get the kinks worked out before trial!
Finally, listen and react. "John told me that . . . " should trigger a hearsay objection. "I'm not sure, but I think . . ." should trigger a speculation or lack of personal knowledge objection. Don't wait to make the objection; stand, say "objection, Your Honor" and state the legal basis for the objection. If you need to argue, follow it with, "may I be heard?" Most of the time, you won't need to - the judge is listening, and she or he will make a ruling. If you need to argue, ask to be heard and to approach the bench or for a sidebar. DO NOT make speaking objections in front of the jury!
Remember, you must be timely - contemporaneous objections are the hallmark of appellate review. No objection, no issue for appeal. Even if you need a moment, make your objection and ask, "may I have just a moment, Your Honor?" Then consult your eLEX Federal Rules of Evidence Summary Trial Guide. Don't forget to consult your trial partner!
Good luck, and keep objecting!
]]>”Can I order one of your evidence cheat sheets?”
I always cringe at the well-intended request. All I can think about is an ill-prepared middle schooler freaking out. Score a test, and resorting to desperate measures. My guides aren’t cheat sheets! My guides aren’t something scribbled on a little piece of notebook paper and hidden away from the teacher’s view! They are noted Summary Trial Guides, courtroom tools for the polished and prepared litigator. Good lawyers don’t cheat, for heaven’s sake!
But, I’ve gotten over it and realize it’s a term of endearment as opposed to a dismissal or relevance or disrespectful slight.
If you think about it, cheat sheets are designed for success. They are prepared in advance, which is something trial lawyers must do. Cheat sheets are concise and accurate, which is what eLEX’s guides are known for. And, as I recall the cheat sheets I’ve seen (but never used!!) in my time, they are inexpensive. eLEX’ guides are all less than $15 each.
Preparation is key - and we have done it for you by summarizing the evidence and procedure rules for quick ease of use. Use our Summary Trial Guides to study the rules, prep for court, and for quick and easy reference in the heat of battle. We’ve done the work - you reap the reward!
So, while I’ll always bristle a bit at the moniker, if you want an evidence cheat sheet, we have what you need. Just don’t wad it up and hide it in your sock.
~ Joe
]]>Learning and studying evidence can seem daunting. There are lots of rules, exceptions to rule, exceptions to exceptions, and the case books are not the most compelling reading ever. This is especially true for law students who are new to the whole legal world and judicial system.
So how do you learn the Federal Rules of Evidence? How to you study something in the abstract, i.e. learn the rules of the game without knowing the game? Think about it - how hard would it be to learn all the rules of football without having seen a football game? Not easy, and not fun. Same with baseball - the infield fly rule?? Yeah, right. Explain that without a diagram.
When you first watched a football game, you learn it as you went along. As penalties were called, you learned what can and can’t be done. The replay showed you the penalty. When you saw what happened, it all made sense. As you have seen more and more penalty replays, no doubt you have started to see them for yourself in real time.
Think you could get to that level of football appreciation by reading the rules, over and over? Nope. No way.
Trial work and evidence are much the same. Unless you know what you can and can’t do in the context of the heat of trial, you are never going to get it. Unless you know how a trial works, and what the big picture is, you can't truly grasp how the complexities of the Federal Rules of Evidence come into play.
Borrowing from football watching, here are some pointers on how to learn the Federal Rules of Evidence without giving yourself a major headache. To be honest, numbers 1 and 2 can be reversed. Read on.
1. GO WATCH A TRIAL
Elementary, my good Watson. I am always amazed at how many 3rd-year law students have never gone to the courthouse and watched a trial. I started watching them before I went to law school. I admit to cutting class in law school to go to the courthouse to watch a high-profile case that was going on. In my internship with the local prosecutor, I was either trying cases (did 6 jury trials before I graduated law school), second-chairing cases with any prosecutor who'd let me or watching trials. I was on the trial team, and got lots of experience with evidence that way. Because of all that, evidence always made sense to me.
Go watch a trial. Show up at the courthouse and walk around. Ask at the info desk. Walk in the courtrooms, and as a bailiff if there’s a jury trial going on - they will know. A little searching will get you where you need to be. I almost forgot - watch the newspaper for high-profile cases!
Remember, the trial is not the objections. Most trials go on without many evidentiary objections. Sometimes they are worked out in advance. Most times the advocates know what can and cannot be entered into evidence, so the questions are refined and the witnesses prepared. That is important to note, as you may not get too many objections, but you will see that the rules are running the game smoothly. Think about it - holding and pass interference are not built into the plays that are being run!! No coach makes a game plan around how many penalties his or her team will get!
You can also find parts of some great trials on YouTube without too much trouble. Most are high profile, and you may even be somewhat familiar with them prior to watching. Note, do not let YouTube take the place of the very valuable experience of seeing a real life trial!
There’s not a lot to tell you other than listen and take notes. When objections come, make a note. Then go to number 2, below.
2. LEARN EVIDENTIARY OBJECTIONS FIRST
Holding, offsides, pass interference. Hearsay, relevance, authentication. Knowing what you can and can’t do tells you how the game works. So learn those first!
All of eLEX Publishers’ evidence summary trial guides come with a list of 28 evidentiary objections. It is the most comprehensive list out there. Each objections has the verbiage needed to properly make the objection, and cites to the applicable rule.
Once you have your list, think back to the trial you say, or go see another one. When an objection is made, look at your evidentiary objection list and read the rule. You will start to see how the little evidentiary objection fits into the whole scheme of the overall trial.
3. REMEMBER THE BASICS
The evidence code is a sieve though which we filter what we want the jurors to hear. While there are many nuances in the Federal Rules of Evidence, there are five (5) main rules you need to remember. Everything else builds off of these rules. So, if you know the main rules, everything else makes sense.
Just remember BARPH (pronounced “barf”, as in vomit). Usually we use this old pneumonic mostly when dealing with items of tangible evidence (as opposed to testimonial evidence), but it works well as a basis for understanding what it admissible evidence. On a very simple level:
Best evidence - Federal Rule of Evidence 1002 - the original document must be offered into evidence or its absence accounted for. Generally, copies permitted so long as someone can identify that it is from the original.
Authentication - Federal Rules of Evidence 103(d) and 901(a) - proof must be offered that the exhibit that is being offered for admission into evidence is in fact what it is claimed to be. The thing is what it is. Examples: the knife is in fact the knife found at the murder scene; the receipt of purchase is from the time of purchase and for the thing purchased; the voice recording is in fact that of the person alleged to be speaking. Basically, whoever wants to get an item before the jury has to be able to prove that "it is what it is."
Relevance - Federal Rule of Evidence 401 - the testimony or item of evidence tends to may any fact of consequence more or less probable. In a breach of contract case, what type of printer used to print the contract is really of no consequence. In a case where the identification of the culprit is an issue, whether the shirt was light blue, royal blue, French blue, or navy blue, could be very relevant.
Personal knowledge - Federal Rules of Evidence 103(d), 602, 701 - 702 - witness must have direct personal knowledge over that which he or she is testifying; opinions are not permitted except by experts. Witnesses cannot speculate, or offer their opinion as to why something did or did not happen. Experts can only opine when their opinion is critical the jury understanding something - for instance, in a tire blowout crash case, most jurors don't have any idea about how tires are made or tested, so an expert's opinion would assist the jurors in their decision.
Hearsay - Federal Rule of Evidence 103(d), 802 - any out of court statement, including what the witness on the stand may have said outside of court. NOTE: there are a bunch of exceptions, and some out of court statements are in fact NOT considered hearsay. But knowing that when you hear a witness starting to relate what someone said, or told them, or what they overheard, the hearsay alarm should go off.
This basic framework controls the whole trial. As mentioned above, most witnesses and evidence are prepped before the trial with the rules in mind, so penalties (objections) are kept to a minimal.
Conclusion
That’s pretty much it! Once you have seen it in action in a trial, learned the objections (i.e. what is going to make a ref throw a flag), and grasped the five basic BARPH rules, learning the minutia of the Federal Rules of Evidence will be much easier. The cases in the book will make more sense, and you will understand why much quicker.
Good luck, and remember to always make a timely objection!
]]>
As of the end of July, it appears that there are no amendments to the Florida Rules of Evidence. Case law continues to interpret the rules, and we will begin posting major cases here at eLEXPublishers.com.
We will be revealing a new look to our Florida Evidence Code Summary Trial Guide soon!
]]>Studying evidence for the first time is daunting. I’ve always said that it’d be easier to watch a few weeks of trials before you start, so there’s some context. But, alas, there’s only the casebook.
We here at eLEX were once 1L law students, and have since been trial lawyers and law professors. And we know that our Summary Trial Guides are the perfect evidence study aid.
Why? Because our evidence guide is a concise and accurate summary - not a regurgitation of the rule, but a breakdown - of the rules of evidence. It’s accurate - written by Professor William Eleazer of the Stetson University College of Law (retired). Professor Eleazer - a retired Marine Corps Colonel - is a stickler for accuracy (and not just with a rifle or shotgun!). You can count on our evidence guides as a perfect evidence study aid.
Our guides are inexpensive and fit right in your notebook - or in your computer as a DIgital Download.
Order your federal evidence summary today - and shoot for that 4.0 in evidence class!
]]>Knowing when and how to make proper evidentiary objections is a key advocacy skill. As I wrote in my upcoming book, Cross Examination in a Nutshell, there are three areas to focus on and apply the proper objection when necessary. By categorizing your objections, you focus your attention and know which objections are available and effective.
The three areas are substance, witness, and opposing counsel.
Certain portions of testimony can be comprised of facts not pertinent to the current trial. They can contain highly “flammable” facts that can improperly influence the jury. Some testimony is subject to attack because there is no background foundation laid, or there is other evidence that better conveys the facts to the jurors.
Witnesses are generally not trained in evidence or testifying. Objections can corral them and control running off on tangents or guessing.
Be sure to know which objections can prevent your opponent from interjecting his or her personal opinion, supplying facts instead of asking the witness to give the facts, and from improperly asking the witness to testify to things he or she can’t or have no place at trial.
Want to know what the specific objections are? Our evidence Summary Trial Guides all have a comprehensive list of the all of the most common objections - order a copy today!
]]>Federal Evidence Summary Trial Guides are concise, accurate, and inexpensive - and ready. Whether trying an actual case or preparing for a law school or Bar exam, the Federal Evidence Summary Trial Guide is the answer.
]]>Florida and National Board Certified Criminal Trial Lawyer Joe Bodiford is now heading up the company. A former student and mentee, and longtime friend of Professor Eleazer, Joe first met Professor Eleazer in the early 1990s as a Stetson Law student. He was on the Stetson trial team, and was Professor Eleazer's research assistant. Now, Joe has 22 years in litigation as a trial lawyer (over 120 jury trials tried!), is an advocacy teacher and coach (Stetson and Florida State), an author, lecturer, and unabashed trial junkie. Joe's vision for Elex has prompted a slight change in the name - to eLEX - which emphasizes the company's move to fuse technology ("e") and the law ("lex").
Happily, Professor Eleazer will remain on board as Publisher Emeritus, and continue to author some of our guides. That is, when he has time between racquetball, poker, craft beer, and now golf. Or is it shuffleboard?
The Trial Guides will not change, and will continue to be the flagship product of eLex Publishers. The evidentiary objection guide will be slightly revised based on Joe's theory of controlling the subject matter, the witness, and opposing counsel.
New products will be coming along soon. We are excited to offer other resources for the courtroom and trial lawyers, including technology products as well as new written materials. We also hope to have presentation items that we test and approve.
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