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American Bar Association


Admitting Emails under Rule 803(6) Is No Slam Dunk

By Kirsten R. Fraser

Evaluating for compliance and laying testimonial foundation are necessary to ensure successful admission of the evidence.


Rules Clarified for Admitting Identification Evidence in Illinois

By Michael R. Lied

The defendant should be able to examine the officer outside the jury's presence to explore familiarity, bias, or prejudice.


Harnessing the Power of Simulated and Illustrative Evidence Without an Expert

By Justin Bryan

When to consider offering illustrations as evidence.


Summaries of Western Union and MoneyGram Records Properly Admitted

By Michael Lied

Seventh Circuit held that summaries of business records created in part by third parties were admissible with proper corroboration.


The Hearsay Exception for Market Reports

By Ryan W. Babcock

Recent cases and traps for the unwary.


The State-of-Mind Exception to the Hearsay Rule

By Michael R. Lied

Three circuit court cases illustrate the difficulty of applying the exception.


Who Uttered the "Statement Made for Medical Diagnosis or Treatment"?

By Ankur Mandhania

A burgeoning split of authority.


Illinois High Court Clarifies Rules for Admitting Identification Evidence

By Michael Lied

At issue was the admissibility of lay opinion identification testimony under the state’s Rule of Evidence 701.


Prior Consistent Statements: The Dangers of Misinterpreting Amended Rule 801(d)(1)(B)

By Laird Kirkpatrick and Christopher B. Mueller

To apply the amendment properly, attorneys and courts must research and consider law outside the rule.


Present Sense Impression and Excited Utterance Hearsay Exceptions

By Thomas J. Whiteside

A primer on Federal Rule of Evidence 803(1) and (2).


Using Evidence of Industry Standard in Medical Record Breach Cases

By Bryan H. Heckenlively

The storage of electronic data by a healthcare provider may have the same requirement as the provision of services.


Say Goodbye to the "Ancient Documents" Rule

By James A. King and Kirsten Fraser

In light of the prevalence, volume, and easy storage of ESI, Rule 803(16) may be abrogated in favor of a self-authentication rule for electronic records.


Use of "Hawk" Recording Device Did Not Violate Best Evidence Rule

By Michael R. Lied

In the context of electronic evidence, the best evidence rule does not always require the "original."


Ohio v. Clark: The Supreme Court's Latest Look at "Testimonial" Hearsay

By Mark Dobson

A word of caution may be in order about the Court's potentially global statements.


Surveillance Video Authenticated Even Absent Eyewitness with Personal Knowledge

By Michael R. Lied

A witness is not required to have prior knowledge of an individual captured by camera in order to establish identification.


People v. Truett: A Murder Case That Could Not Be Won—But Was

By Travis H.D. Lewin and Tyler P. Hite

It seemed to be a clear case of murder that Abe could not win—but he did. Was it, in fact, a case he should have lost?


Mr. Lincoln and the Almanac Enigma from People v. Armstrong

By Travis H.D. Lewin and Tyler P. Hite

Was "Honest Abe" really being honest when he avoided unfavorable evidence and stretched the truth during the trial?


Court Addresses 911 Call and DNA Evidence

By Michael R. Lied

Illinois appellate court holds that a defendant's statements are admissible nonhearsay and that evidence submitted should not have been excluded.


Changes to FRCP 45 Substantially Alter Federal Subpoena Practice

By Steven C. Corhern

The 2013 amendments to Federal Rule of Civil Procedure 45 altered the requirements for issuing, serving, and opposing a domestic federal subpoena.


Lincoln's Second-to-Last Murder Case: People v. Patterson

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?


Dirty Tricks or Fair Game in Cross-Examination?

By Ian H. Fisher

Asking questions containing negative presumptions on cross-examination may be the basis for sanctions—or even a mistrial.


What a Trial Lawyer Needs from a Deposition

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.


Class Action Notice

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.


Expert's Testimony Not Barred by Mismatches to Plaintiff's Testimony

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.


The Common Interest Privilege

By Matthew D. LaBrie

Despite the name, the common interest privilege is not as common as you might think.


The Basics of iPad Trial Evidence Presentation

By Alexander S. Rusek

Tablet computers can provide an effective means to present to the judge and jury.


Why FRE 407 Applies in Criminal Cases and Proceedings

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.


Third-Party Observer Impact on Neuropsychological Exams in Litigation

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?


Lost in Case: 10 Ways to Bring Justice into a Closing Argument

By Jennifer Zedalis

Tips to help you craft a compelling closing argument and secure a fair outcome for your client.


The Demise of the "Meeting of the Minds" in Contract Law

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.


Supreme Court Decisions Both Relax and Raise Standards in Patent Litigation

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.


Lincoln's Last Murder Trial: People v. Harrison

By Travis H.D. Lewin

Lessons to learn from the trial Lincoln could not win but dared not lose.


Securities Fraud Class Actions Face Supreme Court Test

By David J. Marmins and Rebecca I. Lunceford

A look at the possible implications of Halliburton II.


Overcoming Authentication and Hearsay Issues in Email Evidence

By Dennis I. Wilenchik and Brian J. Hembd

Potential solutions for moving past these obstacles.


But I Want to Call Him in My Case!

By Justin J. Wolosz and Nick W. Rose

How courts may be able to require production of some adverse party witnesses.


Fiduciary Duty Litigation and Burden Shifting

By Michael W. Stockham and Mackenzie S. Wallace

Key questions parties should consider in cases involving potential breaches of fiduciary duties.


Autopsy Report Falls under Business Records Exception

By Michael R. Lied

In Crawford, the appellate court ruled that a substitute medical examiner may testify as to autopsy report under the exception.

Don't Assume: Local Variations in the Quantum of Proof to Support a Claim for Presumed Damages

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.

Treatment of Influential Observations and Outliers in Regression Analysis

By Narsid Golic

The validity of the results is frequently criticized by opposing experts. We break down why you shouldn't jump to conclusions.

Juror Use of Social Media: Closing the Evidentiary Back Door

By Andrew B. Flake

The burden of monitoring potential improper use of social media by jurors during trial falls mostly on trial counsel.

Federal Rule of Evidence 612 and Preparing Witnesses for Depositions

By Onika K. Williams

How the rule can affect the selection of documents used to prepare deponents.

Social Media and the Federal Rules of Evidence

By Hon. J. Michelle Childs

A view from the bench.

Social Media Evidence in Civil Litigation

By Mariel Goetz

Discovery pointers and pitfalls.

#Justice? Social Media's Impact on the U.S. Jury System

By Katie L. Dysart and Camalla M. Kimbrough

Strategies and safeguards to combat the threat of injustice posed by jurors' use of social media.

Avoiding the ESI Minefield on the March to Trial

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.

Summary-Judgment Evidence 101

By James A. King

A crash course on the admissibility requirements of Rule 56.

Settlement Evidence and Patent Damages

By John Kenneth Felter and Samuel Brenner

Discoverability and admissibility of settlement license agreements and negotiations in calculating patent-infringement damages.

What Can You Safely Tell Your Spouse?

By Michael R. Lied

Incriminatory emails sent from workplace computer not protected by marital communications privilege.

Fingerprints, DNA Evidence, and Expert Testimony

By Michael R. Lied

Court admits testimony of fingerprint expert and DNA expert in a residential burglary case.

Using Expert Testimony by Plaintiffs to Oppose Summary Judgment: Part I

By Betsy Collins

Pay close attention to the rules pertaining to admitting expert testimony in summary-judgment briefing.

How to Make Practicing Law a Satisfying, Lifelong Career

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.

Evidence of a Successful Practice Through Ups and Downs

By Tonya Moffat Ramsey

Being a successful lawyer is a lifelong process with many paths, and each presents various trade-offs.

Why I Sue Lawyers

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.

Practical Considerations for Subpoenas Directed at Counsel

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.

Is Eyewitness Testimony Inherently Unreliable?

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?

Managing the CSI Effect in Jurors

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.

Interview with Gregory A. Presnell, District Judge

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.

Barefoot Insole Impressions: The Curious Case of Mr. Jones's Feet

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.

The Shifting Grounds of the Constitutional Right to Confrontation

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.

Handling Substantive Changes in Adversaries' Errata Sheets

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.

Court Provides Guidance on Admission of Surveillance Video

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.

Supreme Court Reverses Trend on Loss Causation

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.

Establishing an Arbitrator's "Evident Partiality"

By Laura M. Fontaine

The evidentiary framework presented by the prevailing party in Karlseng v. Cooke makes a useful template for post-arbitration discovery.

Supreme Court Decides Stern v. Marshall

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.

The Status of Service by Mail in the Eleventh Circuit

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.

The Advantages of a Diverse Trial Team

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.

For Legal Teams, Perception Is Reality

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.

Diversity Provides a Kaleidoscope of Perceptions

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.

Diversity and the Legal Marketplace

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.

A Trial Lawyer's Guide to LGBT Issues in the Courtroom

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.

The Risks and Benefits of the Rule 26 Amendments Regarding Expert Reports

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.

What Appellate Lawyers Should Know About Making a Trial Record

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.

The Duty to Preserve: Victor Stanley and Its Progeny

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.

Is Rule Making a Cure for Preservation Headaches?

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.

The Duty to Disclose: Rule 37(c) and Self-Executing Sanctions

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.

Federal Rule of Evidence 706: Court-Appointed Experts

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.

The Evidentiary Hurdles of Arbitration

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.

Proving Patent Damages after Uniloc

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.

The Authentication of Social Media Postings

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.

2010 Expert Witness Rule Amendments

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.

The Reliability, Admissibility, and Power of Electronic Evidence

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.

Deposing a Witness under the Hague Convention in a Mexican Court

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.

Dancing on Direct: Direct Examination of Witnesses

By Chip Rice

Preparing for the direct examination of a friendly witness is like choreographing a dance scene in a movie.

Preventing Inadvertent Privilege Production

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.

Protecting Insurance Broker Communications from Discovery

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.

The End of Expert Practice as Usual: Proposed Changes to Rule 26

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.

What's Wrong With Hearsay?

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.

Rules Governing Experts: The European Perspective

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.

Presenting Evidence when Businesses Have Limited Financial Information

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.

The Impact of Rule 502(d) on Protective Orders

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).

Proposed Changes to the Federal Rules of Evidence

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.

Protecting Settlement Negotiations Amended Rule 408

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 Federal Rules of Evidence

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.

Best Practices for Interviewing The Adverse Corporation’s Former Key Employees

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.


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