By Judge Elisabeth A. French, Julia T. Cochrun, and LaBella S. McCallum
With changes in the law school curriculums in terms of evidence requirements, many in the legal profession have observed that attorney trial skills have declined in recent years. The goal of this article is to present practical trial tips and important concepts to understand when offering evidence at trial.
The scope of voir dire examination is left largely to the discretion of the trial judge.[i] “It is well settled that a trial court is vested with great discretion determining how voir dire examination will be conducted. . . the trial court’s decision will not be overturned except for an abuse of that discretion.”[ii] During voir dire examination, the judge will usually address the jury to determine whether a juror is covered under an insurance policy providing coverage to a defendant in the case. Challenges for cause are allowed when a juror, in the case of a mutual company, is the holder of a policy of insurance with an insurance company indemnifying any part of the case.[iii] Only in exceedingly rare circumstances will the existence of insurance be admissible.
The purpose of opening statements is to explain the case and what the parties expect the evidence will show. Some attorneys provide details about witnesses and what they expect the testimony will be. Many jury trials in this state involve automobile accidents. Accident reports are generally not admissible and should not be discussed in opening statements. Attempts to admit accident reports as evidence may result in a mistrial.[iv] Accident reports can be admissible evidence when the officer who is authoring the reports personally observes all the events described in the report.[v]
Pretrial and Motions in Limine
Trial preparation necessitates knowing the admissibility foundations for the required elements of proof.[vi] Identifying the forms of proof available and eliminating admissibility obstacles is key. Anticipating the form of the objection and the response thereto will allow coherent trial flow.[vii] Standard pretrial orders and an individual judge’s pretrial orders compel parties to preemptively address evidentiary issues. Stipulations can streamline issues. Motions in limine allow the court to address evidentiary issues so that the parties can plan accordingly.[viii] Rulings, pretrial and otherwise, must be made part of the record. Despite a ruling pretrial that offered evidence is not precluded, a proper foundation must still be laid at trial. If the evidence is ruled precluded, make an offer of proof on the record. Protect the record, clearly stating grounds for or against admissibility[ix]. Follow through on pretrial and in-trial rulings by instructing witnesses as to how they may impact their testimony to avoid a mistrial or other sanctions.[x]
Demonstrative evidence is a vital tool of persuasion in a trial. There is a clear difference between non-admissible demonstrative exhibits that may be used to highlight or explain other evidence and admissible demonstrative evidence that may go back to the jury for deliberations. Authentication using evidence sufficient to support that the exhibit is what you claim is required.[xi] It must be relevant,[xii] be more probative than prejudicial,[xiii] overcome hearsay issues,[xiv] must be based on personal knowledge,[xv] and if it contains opinions, must comply with ARE Rules 701 and 702.
Educational summaries are generally not admissible. Example: Counsel’s writings on a flipchart of key points of a witness’s testimony. The court may permit a party to use such materials in presenting its unilateral view of the evidence to assist the jury.[xvi] As a form of argument, the court (and opposing counsel) should make clear that the summary exhibit is not actual evidence. It is excluded from the jury room during deliberations.
Substitute evidence is admitted in place of actual evidence. A creation of a party, it should be vetted by both the opposing counsel and the court to prevent introduction of otherwise inadmissible material. Example: A compilation summary listing of medical bills incurred by the injured party. Ala. R. Evid. Rule 1006[xvii] establishes the method for admissibility of such substitute evidence when the underlying evidence would be impracticable to present at trial due to sheer volume. This condensed version allows for focus on what the voluminous data represents. Experts can be involved in reducing data to a more understandable and succinct compilation while maintaining the significance of the data. The original data must have been previously made available to the other parties. The writings must be 1) voluminous, 2) cannot be conveniently examined in court, 3) vetted to ensure accuracy in the compilation, and 4) otherwise admissible. The court may require that the underlying data be likewise produced to the court. This is best handled well before the start of trial so that objections can be made to the underlying data as well as the compilation itself. In practice, if the underlying larger materials are already admitted, use Rule 1006 to support an argument that the summary should likewise be admitted.
Rule 803(18) creates a hearsay exception allowing admissibility, with proper foundation, of published writings on a learned subject, as direct, substantive evidence to prove the matter asserted therein.[xviii] This exception only permits the treatise statements to be read into evidence. Critical to preventing error, counsel should inventory all admitted exhibits at case close to prevent exhibits admitted under this rule from going to the jury room for deliberations.
The foundation requires that the writing first must be established as a reliable authority. Reliability can be supported by testimony by a witness (i.e. an expert) that the author of such writing is recognized in the field and that other professionals acknowledge the accuracy of the publication.[xix] The writing can be deemed reliable by judicial notice; however, it still must be brought to the attention of an expert. Then, the person offering the publication must show either that the publication was relied upon by the expert during direct examination or was called to the expert’s attention on cross-examination. This second requirement ensures that the content is used by the jury with expert assistance in explaining or applying the information. If you intend to cross examine an opposing expert using a treatise, unless the opposing expert admits that it is authoritative, be sure that you have established it as authoritative through another witness.
A business record, when properly authenticated, may be offered for substantive proof of the matter asserted under Ala. R. Evid. 803(6).[xx] The reliability of such records is codified for civil cases with ARCP 44(h)[xxi] and for criminal cases with Ala. Code § 12-21-43.[xxii] The business must be the maker of the document rather than just a receiver who may have added it to their business’ system of records.[xxiii] Documents authored by a third party, even if contained in a business’ records, do not qualify without more. Those hearsay-within-hearsay documents must meet other foundational requirements in order to be admissible. Opinions and diagnoses are admissible through records if they are otherwise qualified as if the statement had been made by an expert, as recognized by Ala. R. Evid. 702,[xxiv] or by a lay person as helpful, as recognized by Ala. R. Evid. 701.[xxv]
In lieu of calling a qualified witness, Ala. R. Evid. 902 (11)[xxvi] and 902(12)[xxvii] provide methods for meeting the elements for authentication. The certification document must provide the same foundational elements in order to comply with these rules.[xxviii] A party intending to offer a record pursuant to this process must provide written notice of that intention to opposing parties, making the record and certification available for inspection sufficiently in advance so that it can be challenged. As an example, this process can be used to authenticate medical records that fall outside the statutory exceptions.[xxix]
The trial court still has the discretion to exclude records for a lack of trustworthiness even if the elements are satisfied. However, the party objecting to admissibility on that ground has the burden to establish a lack of trustworthiness. The weight to be given to the admitted records is still subject to attack, especially if the admitting witness is not the maker of the records. Documents prepared for litigation use will be scrutinized as they were likely not prepared in the regular course of business.
The foundation to be established with the witness should elicit that the record was kept in the course of a regularly conducted business activity, that it was the regular practice of that business activity to make the record, and that it was done reasonably contemporaneous with the events. There is no requirement that the authenticating witness be the custodian, entrant, or maker of the record.
Introduction of Medical Expenses by Defendant When Plaintiffs Do Not Claim Them as Damages
There is a trend in cases in cases with low medical bills for plaintiff attorneys to not offer the bills at trial. While Alabama has not clarified its position on the issue, it is important to be aware of the national trends favoring admittance of medical bills into evidence. Nationally, there is a great deal of support for the introduction of medical expenses into evidence even though plaintiffs do not claim them as damages. The rationale is that medical bills are helpful to jurors in awarding fair and reasonable verdicts and are indicators of the severity (or lack thereof) of injuries. Most recently, in a South Carolina case,[xxx] the plaintiff claimed damages for pain and mental anguish but not medical expenses, despite the fact they existed. The South Carolina Court of Appeals stated: “[w]e see no reason [the jury] should be kept ignorant of the cost of [the plaintiff’s] medical treatment in determining the facts.”[xxxi] The court allowed this testimony over the plaintiff’s objection as to the relevance of those bills. This case is one among many where courts have supported the contention that medical bills are helpful to jurors in awarding fair and reasonable verdicts.[xxxii]
In Alabama, the issue is somewhat unresolved. Additionally, Alabama Pattern Jury Instruction 11.10 acknowledges there is little guidance for jurors to determine appropriate compensation for pain: “There is no legal rule or yardstick that tells you how much money to award for physical pain (and mental anguish).…”[xxxiii]
Pro Tanto Settlements
A pro tanto settlement is a partial settlement by a plaintiff with one or more joint tortfeasors. Plaintiffs’ counsel should be sure to reserve the right to proceed against remaining joint tortfeasors when executing a pro tanto release to avoid any unintentional releases.[xxxiv] Likewise, once a pro tanto settlement is executed, the remaining co-defendants are entitled to credit any judgment with the pro tanto settlement.[xxxv] Accordingly, defendants should assert a setoff defense with specificity at the first opportunity or otherwise risk losing such post-judgment relief. While defendants can move to admit the pro tanto settlement or have the court set off the settlement against the judgment, the trial court has discretion on whether to instruct the jury on the total amount of the settlement should defendants opt to move for admission of the pro tanto settlement.[xxxvi] Under Alabama Rule of Evidence 408, evidence of pro tanto settlements are admissible so long as it is not offered to prove “liability for, invalidity, of, or amount of a claim.”[xxxvii]
In closing arguments, it is never appropriate to ask the jurors to put themselves in the shoes of the parties. Comments on the wealth or poverty of the parties are likewise not permissible. Be mindful of the inferences that arise from the evidence, the credibility of the witness, and the common sense that is reasonable to support a verdict.
[i] McCray v. State, 88 So. 3d 1,75 (Ala. Crim. App. 2010) (quoting Ex Parte Land, 678 So. 2d 224, 242 (Ala. 1996)). [ii] Burlington Northern R.R. v. Whitt, 575 So. 2d 1011, 1017 (Ala. 1990) See also Redus v. State, 243 Ala. 320, 328 (1942) (holding that voir dire examination of jurors as to qualification and the course and extent thereof is largely within the court’s discretion). [iii] Ala. Code § 12-16-150 (1975). [iv] See, e.g., Mainor v. Hayneville Telephone Co., 715 So. 2d 800 (Ala. Civ. App. 1997) (holding that pursuant to § 32-10-11 of the Code of Alabama, the lower court erred in admitting police accident reports). [v] Ex Parte McKenzie, 37 So. 3d 128, 132 (Ala. 2009) (citing Worsham v. Fletcher, 454 So. 2d 946 (Ala. 1984)). [vi] Use the Alabama Pattern Jury instructions as a method to identify proof elements. [vii] See Charles W. Gamble, Terrence W. McCarthy, & Robert J. Goodwin, McElroy’s Alabama Evidence, (3d ed. 2014). This publication is a reliable source that provides specific foundations, forms of objections, and response examples as well as practice pointers. [viii] See McElroy’s Alabama Evidence, supra n. 7, § 403, Practice Pointer number 3 (using a pretrial motion in limine to avoid the dilemma of the jury being admonished to ignore hearing prejudicial evidence as this sort of instruction cannot “unring the bell.”). [ix] Liberty Nat'l Life Ins. Co. v. Beasley, 466 So. 2d 935, 936 (Ala. 1985). An appellant who suffers an adverse ruling on a motion to exclude evidence, made in limine, preserves this adverse ruling for post-judgment and appellate review only if he objects to the introduction of the proffered evidence and assigns specific grounds at the time of trial, unless he has obtained express acquiescence of the trial judge that such subsequent objection to evidence proffered at trial and assignment of grounds therefor are not necessary. [x] Mottershaw v. Ledbetter, 148 So. 3d 45(Ala.2013). A trial court properly granted a new trial to a patient's estate administrator, as the jury was exposed to evidence that had been excluded by a motion in limine, which evidence might have improperly influenced the jury and resulted in actual prejudice. [xi] Ala. R. Evid. 901. [xii]Id. at 401. [xiii] Id. at 403. [xiv] Id. at 801-806. [xv] Id. at 602. [xvi] Id. at 611. [xvii] Id. at 1006. [xviii] Id. at 803(18). [xix] Hrynkiw v. Trammell, 96 So. 3d 794, 809 (Ala. 2012). ARE 803(18) recognizes the inherent reliability of such publication when an expert admits the author’s expertise and that the publication is recognized by professionals in that field. [xx] Ala. R. Evid. 803(6). [xxi] ARCP 44(h). [xxii] Ala. Code 1975. [xxiii] See Ex Parte Frith, 526 So. 2d 880 (Ala. 1987), Ex Parte J.R., 896 So. 2d 416 (Ala. 2004), L.A.C. v. State Department of Human Resources, 890 So. 2d 1026 (Ala. Civ. App. 2003). [xxiv] Ala. R. Evid. 702. [xxv] Id. at 701. [xxvi] Id. at 902(11). [xxvii] Id. at 902(12). [xxviii] “[T]he proponent of the evidence may now overcome authentication, hearsay, and best-evidence-rule objections with a properly certified copy of a record of regularly conducted activity, but all other valid objections remain. Thus, even if the proponent of the evidence satisfies the requirements of these sections, the evidence may still be excluded under applicable general rules of evidence….” Committee Comments to ARE 902. [xxix] Hospital records meeting requirements of Ala. Code §§ 12-21-5 and 12-21-6, (1975) are admissible. Use the form provided § 12-21-7 when issuing a subpoena for such records to obtain the statutory authentication. Non-hospital records should use the process outlined in ARE 902(11) or 902(12) or other exceptions as set out in ARE 901(7) or other statutes. Use of ARCP Rule 36 Request for Admissions likewise can provide a path for admission of documents. [xxx] Nestler v. Fields, 426 S.C. 34, 824 S.E.2d 461 (S.C. Ct. App. 2019). [xxxi] Id. 426 S.C. at 38, 824 S.E.2d at 464. [xxxii] Chapman v. Mazda Motor of America, Inc., 7 F. Supp. 2d 1123, 1124-25 (D. Mont. 1998); Brice v. National Railroad Passenger Corp., 664 F. Supp. 220, 224 (D. Md. 1987); McGee v. River Region Medical Center, 59 So. 3d 575, 581-82 (Miss. 2011); Luther v. Lander, 373 P. 2d 495, 500 (Alaska 2016); Barkley v. Wallace, 595 S.E. 2d 271, 273-74 (Va. 2004); Melaver v. Garis, 138 S.E. 2d 435 (Ga. App. 1964). [xxxiii] See Ala. Pattern Jury Inst. Civ. 11.10 (3d ed.) [xxxiv] § 44:12. Pro Tanto settlement credit to non-settling defendant, 2 Trial Handbook for Ala. Law. § 44:12 (3d ed.); see also Ala. Code § 12-21-109. [xxxv] Lowry v. Garrett, 792 So. 2d 1119 (Ala. Civ. App. 2001). [xxxvi] Morris v. Laster, 821 So. 2d 923 (Ala. 2001); 1 Ala. Pattern Jury Instr. Civ. 11.44 (3d ed.). [xxxvii] See ARE 408. -30-