By Travis H.D. Lewin and Tyler P. Hite
It seemed to be a clear case of self-defense that Abe could not lose—but he did. Was it, in fact, a case he could not win?
By Ian H. Fisher
Asking questions containing negative presumptions on cross-examination may be the basis for sanctions—or even a mistrial.
By Kristine K. Meredith
To elicit testimony that will be useful at trial, let the witness tell the story in his or her own words.
By James A. King and Eric B. Gallon
Federal Rule of Civil Procedure 23 requires proper notice to class members after class certification, binding settlement, and attorney fee motions.
By Michael R. Lied
When an expert's theory would aid the jury in its deliberations, Daubert is satisfied even if the expert's testimony mismatches the plaintiff's account.
By Matthew D. LaBrie
Despite the name, the common interest privilege is not as common as you might think.
By Alexander S. Rusek
Tablet computers can provide an effective means to present to the judge and jury.
By Ryan C. Hudson and Kenneth J. Duvall
The plain language of Federal Rule of Evidence 407 reveals that it should be applied in both civil and criminal matters.
By Matthew R. Shindell, Robert J. McCaffrey, and Graham M. Silk-Eglit
When it comes to a client’s mental condition, is three is a crowd?
By Jennifer Zedalis
Tips to help you craft a compelling closing argument and secure a fair outcome for your client.
By Ralph H. Schofield Jr.
We explore how the "objective" view of this elusive concept continues to develop and how it can affect other contract defenses.
By Jeffrey K. Dicker
The relaxed standard for determining whether a case is exceptional, coupled with the more deferential standard of appellate review, has the potential to change the landscape.
By Travis H.D. Lewin
Lessons to learn from the trial Lincoln could not win but dared not lose.
By David J. Marmins and Rebecca I. Lunceford
A look at the possible implications of Halliburton II.
By Dennis I. Wilenchik and Brian J. Hembd
Potential solutions for moving past these obstacles.
By Justin J. Wolosz and Nick W. Rose
How courts may be able to require production of some adverse party witnesses.
By Michael W. Stockham and Mackenzie S. Wallace
Key questions parties should consider in cases involving potential breaches of fiduciary duties.
By Michael R. Lied
In Crawford, the appellate court ruled that a substitute medical examiner may testify as to autopsy report under the exception.
By Charles E. Harris II and Ranjit J. Hakim
We examine the amount of evidence, if any, that courts around the country are requiring defamation plaintiffs to offer.
By Narsid Golic
The validity of the results is frequently criticized by opposing experts. We break down why you shouldn't jump to conclusions.
By Andrew B. Flake
The burden of monitoring potential improper use of social media by jurors during trial falls mostly on trial counsel.
By Onika K. Williams
How the rule can affect the selection of documents used to prepare deponents.
By Hon. J. Michelle Childs
A view from the bench.
By Mariel Goetz
Discovery pointers and pitfalls.
By Katie L. Dysart and Camalla M. Kimbrough
Strategies and safeguards to combat the threat of injustice posed by jurors' use of social media.
By Ben Stone
An attorney who understands the law and acts quickly to preserve potentially relevant ESI will insulate his or her client from any allegations of spoliation later on.
By James A. King
A crash course on the admissibility requirements of Rule 56.
By John Kenneth Felter and Samuel Brenner
Discoverability and admissibility of settlement license agreements and negotiations in calculating patent-infringement damages.
By Michael R. Lied
Incriminatory emails sent from workplace computer not protected by marital communications privilege.
By Michael R. Lied
Court admits testimony of fingerprint expert and DNA expert in a residential burglary case.
By Betsy Collins
Pay close attention to the rules pertaining to admitting expert testimony in summary-judgment briefing.
By Veronica Smith Lewis
You can only achieve long-term success in your career if you can pursue that career while fulfilling your personal and family life goals.
By Tonya Moffat Ramsey
Being a successful lawyer is a lifelong process with many paths, and each presents various trade-offs.
By Coyt Randal "Randy" Johnston
I made my peace with the practice of law by providing representation to those people who were not well served by their lawyers.
By Steven R. Trybus and Michael G. Babbitt
Be smart, be careful, and be diligent. These are good rules to follow in the practice of law, but even more so in dealing with subpoenas directed at counsel.
By Aileen P. Clare
Our evidentiary system presumes the reliability of eyewitness testimony, and jurors tend to over-credit eyewitnesses, so how do you compensate for or avoid faulty testimony?
By Katie L. Dysart
Lawyers should be prepared to manage jurors' expectations by reconfiguring opening and closing statements, by tailoring the examination of witnesses and experts, and more.
By James E. Foster Esq.
A district judge shares his view of trial evidence and how to handle evidence in the courtroom, and things he's seen in the courtroom that he found effective.
By Ben Lewis
Jeffrey Louis Jones has two very peculiar feet. Mr. Jones's feet are so remarkable that they have twice caused him to be sentenced to death.
By Emily R. Schulman and Melissa Turitz
The majority of the Supreme Court left open for interpretation how, if at all, courts should treat reliability when conducting a primary purpose inquiry.
By Roger K. Smith and Lisa R. Veasman
You could move to strike the changes to the transcript, or you could move to reopen the deposition and question the witness about the changes.
By Michael R. Lied
The Illinois Supreme Court took a more flexible, less exacting view of the foundational requirements for admitting a survelliance video under the "silent witness" theory.
By Kara Altenbaumer-Price
For securities class-action defendants, the "higher hurdle" created by the court's loss-causation analysis is proving an important defense tool.
By Laura M. Fontaine
The evidentiary framework presented by the prevailing party in Karlseng v. Cooke makes a useful template for post-arbitration discovery.
By Dawn C. Van Tassel
Commentators have speculated on everything from a minimal impact of the Stern decision to a catastrophic clogging of the Bankruptcy Courts.
By Aaron S. Weiss
As an alternative to service through the central authority, service of process may be effectuated by mail under article 10(a) of the Hague Service Convention.
By Allison Jacobsen
Those who compose a trial team without regard to the diversity of the team overlook a powerful opportunity to be effective in the courtroom.
By Christina L. Dixon
It is best to represent a client with a team that includes individuals with varying backgrounds. The diversity of a legal team is tantamount to success in the courtroom.
By Lori L. Lorenzo
The diversity of our nation is an untapped fountain of skills, perspectives, and experiences that, if properly utilized, holds limitless possibilities for innovation and growth.
By David Coale and Margarita Coale
A vibrant, diverse team can help attract clients and encourage the development of relationships with clients over time in several ways.
By James A. Reeder Jr.
Trial lawyers should consider a few things to avoid the inadvertent unfair or disrespectful treatment of LGBT judges, jurors, witnesses or others in the courtroom.
By Leah Knowlton and Hart Knight
Attorneys should be mindful of the possible risks of extensive involvement in drafting expert reports and otherwise guiding the formulation of testimony.
By Mary-Christine (M.C.) Sungaila
Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.
By Carol Owen
Without predictability and uniformity in how the Federal Rules of Civil Procedure are applied, corporations are frustrated in their attempts to determine their legal obligations.
By Richard Marcus
The preservation of electronically stored information is a hot topic, but the adoption of new rules about spoliation, sanctions, or both could change things.
By Lisa Stockholm
Litigants should disclose all potential evidence and supplement all required disclosures and discovery responses to avoid the possibility of having their evidence excluded.
By John P. McCahey and Jonathan M. Proman
Federal Rule of Evidence 706 may be used more often as the issues become more complex and the testimony of litigants' experts become more partisan.
By Matthew K. Edling
While the means of obtaining evidence prior to an evidentiary hearing are inhibited, arbitrators have greater discretion as to what material is relevant.
By S. Christian Platt and Bob Chen
The rejection of the 25 percent rule will require patent holders to more rigorously tie evidence proving damages to the parties, patents, and accused products at issue.
By David I. Schoen
Preliminary questions of admissibility turn on traditional analysis, but some factors specific to social media networking can complicate the application of those concepts.
By Gregory P. Joseph
As of December 1, 2010, the Federal Rules of Civil Procedure that govern the disclosure of expert opinion are substantially amended.
By Zachary G. Newman and Anthony Ellis
While we have been learning to deal with such concepts as electronic discovery, metadata, email retrieval, and spoliation, we need to remember the basics of evidentiary procedure.
By Maria-Vittoria "Giugi" Carminati
Parties seeking to depose reticent deponents abroad can do so under the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.
By Chip Rice
Preparing for the direct examination of a friendly witness is like choreographing a dance scene in a movie.
By Caroline Boudreau Sweeney
The majority of litigation costs are the result of the document review process and avoiding the production of privileged work product or communications.
By Kara Altenbaumer-Price
A recent court ruling has added insurance brokers to the list of nonattorneys who may be protected by the attorney-client privilege.
By Calvin Cheng
The Judicial Conference of the United States approved the recommendations of the Committee on Rules of Practice and Procedure, including proposed amendments to Federal Rule of Civil Procedure 26.
By James D. Abrams, Esq.
Ask two trial lawyers about how they view the hearsay rule and you are likely to get two different responses depending on their personal experiences in trial.
By James R. Tumbridge, Timothy D. Pecsenye, and Gregory J. Urbanchuk
The globalization of business and the convergence of world markets create unique challenges for businesses involved in disputes.
By Neil Steinkamp, Gavin J. Fleming Esq., and Jacob Reed
In commercial litigation, a reasonable level of certainty relating to the cause of damages and the damages amount is required for damages to be awarded.
By Gregory P. Joseph
Are you wondering what the state of the law is with respect to waiver? Click here to read a submission from one of the Trial Evidence committee?s presentations at the upcoming Section Annual Conference.
Responding to Subpoenas from Federal Agencies: Does FRE 502(d) Provide the Means to Protect Privilege?
By Laura D. Cullison
Practitioners looking for a way to produce documents to a federal agency such as the Securities and Exchange Commission (SEC) while maintaining privilege may find a glimmer of light in Federal Rule of Evidence 502(d).
Learn more about the proposed changes to the Federal Rules of Evidence
Garbage In, Garbage Out: Why Careful Crafting of a Search Protocol is Essential to Meaningful E-Discovery
By Jennifer A. Baumann
For most attorneys, the existence of e-discovery is not breaking news. However, the basic fundamentals, the nuts and bolts, of e-discovery appear to be alluding some attorneys in our practice and implementation of e-discovery. One of these fundamentals is the crafting of a meaningful search protocol.
By Michael Gerard and Andrew Rafalaf
On December 1, 2006, the amendments to Federal Rule of Evidence 408 (Amended Rule 408) became effective. Amended Rule 408 generally bars evidence concerning efforts to settle or compromise a dispute when offered to prove liability for the invalidity of a claim or its amount.
The changes to the Federal Rules of Civil Procedure, particularly those concerning e-discovery, are not the only federal rule changes with an effective date of December 1, 2006. Earlier this year, the Supreme Court approved four amendments to the Federal Rules of Evidence which deserve equal attention and consideration.
By Michael Cavendish
Key current employees of corporate litigation parties cannot be approached by counsel representing opposing parties during litigation. Former corporate party employees, however, are fair game, and may be subpoenaed and interviewed in advance of their deposition or court testimony. But when a member of a party’s litigation team conducts an informal, ex parte interview of an adverse party’s former employee, there is a potential that the source will divulge information or documents that may be protected by attorney-client privilege.