LEGAL ADVICE
TORTS AND PRODUCTS LIABILITY OUTLINE
Christopher Brainard
Evidence(Assume FRE)
Relevance(always)=
Logical Relevance=tendency
to prove or disprove a material issue.
Rule:
Relates to event/person in controversy.
Except: 1)Cause; 2)prior false
claims/injury; 3)Intent/State of mind in
issue; 4)Rebut; 5)Comparable Sales
for value; 6)Industrial/Business Routine/Customs.
Habit Evidence=to
show acted in accordance w/habit= i)specific
detailed conduct; ii)recurrence.
1)Disposed=No (careful/careless/No opinion/No
reputation)). 2)No prior act Evid if person
acted 2x. On MBE: “invariably, automatically,
always, instinctively.”
Discretionary
Relevance=Probative value “substantially”
outweighed by: 1)prejudice, 2)confuse
issues, 3)mislead jury, 4)Undue delay/waste of
time, 5)Cumulative. Unfair surprise is not
ground.
1)Liability
Insurance=Prejudicial. Except:
1)Ownership/Control; 2)Bias/interest=impeach.
2)Subsequent
Remedial Measure=Policy. Except:
1)Ownership/Control; 2)Rebut/Impeach=feasability.
3)Settlements=Need
Dispute=If parties say “your fault.”
Compromise(w/admissions) not admissible.
To pay meds, will sever!
Character Evidence
as Substantive Evidence=Relevance
Circumstantial Evidence of Disposition to
Infer Conduct: Reputation/Opinion/Specific
Acts.
Civil=NO.
Except: Character In Issue=Reputation,
Opinion, or Specific acts!
*To relevant trait. Extrinsic.
Criminal=D
may. Prosecutor rebuts.
Reputation/Opinion! No specific acts. *To
relevant trait. Extrinsic.
Prosecutor
may rebut Reputation/Opinion D=Extrinsic.
Inquire into any D’s bad acts=No
Extrinsic!
D show V’s bad character=Same.
Sex(Crime/Civil)=Dof V=NO;
except injury/semen other/consent.
Prosecutor show other sex crime?
Specific Acts if Independently Relevant
(not as circumstantial evidence
propensity): 403
Motive;
Intent/Knowledge; Mistake;
Identity; (Modus Operandi); Common
Plan/Scheme. Opportunity.
Purpose/Plan. Knowlege. 5 all 5
subject to 403 discretion prejudice.
Habit
Evidence(See above).
Real=
1)authenticate: Testimony/Unbroken chain of
possession; 2)Same condition; 3)403 discretion.
Demonstrative/Photos=witness
w/personal knowledge says is good
representation.Exhibition of Child in
Paternity Suits=allowed. Exhibition of
Injuries=ok for damages if 403. Jury View
of Scene=allowed.
Recordings/Computer
Print outs/Measuring devices=foundation
that good working order & accurate.
Documentary Evidence=Reliable:
HARBèRelevance,
Authentication, Best Evidence, H/S
Authenticate=Foundation:
Judge decides if sufficient for jury finding
of genuineness. Any sensible way:
Admission;
Eyewitness Testimony; Sign/Voice=Lay
from before/after recognizes.
Expert/Jury=compare.
Reply Doctrine=written
in response to communication in response to
claimed author.
Ancient Docs=1)>20yrs;
2)Regular on face; 3)Found in place of regular
custody.
Photos=just
witness that says it is fair representation. If
no one=show operated correctly & from film.
X-rays etc=1)must show process is accurate,
2)machine operating correctly, 3)operator was
qualified.
Self Authenticates=1)Certified
public records, 2)Official publications, 3)News,
4)Trade marks, 5)Acknowledged docs{2xSigned},
6)Commercial paper&related docs. CONTAC.
Best Evidence Rule=preference
for original.
1)If prove content
of Writing(recording/photo/x-ray)=i)writing
legally dispositive; ii)witness knows
from.
Except: 1)Independent
Existence {Personally knows}, 2)Collateral
issue, 3)Voluminous, 4)Public
record.
2)Use Original/Duplicates=exact
copy/photocopy(unless issue as to
genuineness of original/unfair).
3)Unavailable=
i)Lost/destruction; ii)outside Jx &
unobtainable; iii)possession adversary
who won’t give.
4)No degrees of
secondary evidence=testimony or handwritten
copies.
Parol Evidence Rule=no
prior/contemporaneous if integrated. Add=if not
fully or normally & naturally not included.
Change=Can’t unless mistake in writing or not
integrated. Enforceability=allowed (condition
precedent, mutual mistake). Explain=ok.
Subsequent modification=ok.
Testimonial
Evidence=
Reliable=1)personal
knowledge; 2)oath of veracity.
(Incompetent/Age/No religion belief=irrelevant
Presumed capable: rebut
w/Extrinsic/Intrinsic then rebut rebuttal
w/extrinsic/intrinsic.
Dead Man Stt=survivor(w/%)
can’t testify against successors to deceased
about com or pers trxns.
Form: Non
leading unless Cross(scope of direct)or
Efficiency(preliminary/loss of
memory/hostile).
NOT Read Testimony.
Except:
Recollection
Refreshed=1)Not remember, 2)any
writing(unreliable), 3)Show opposing{may put in
evid}.
Recollection
Recorded=1)Not remember, 2)Personal know,
3)when mem fresh, 4)they/agent, 5)accurate.
Read to jury, published if opposing counsel
wants. Its H/S but exception.
Lay Opinion:
admit: 1)personal knows; 2)Helpful to jury’s
understanding; 3)not ultimate issue.
Expert Opinion=Ultimate
issue Ok except as to D’s intent.
1)Appropriate
subject matter{Judge by preponderance
reliable b/c scientific methodology
valid};
2)Qualified Expert{special
training, skill, training};
3)Rsbl
certainty/probability regarding opinion{not
mere guesswork};
4)Based: i)personal
observation, ii)facts{not admissible
h/s}of type expert in field rsbly rely on.
Treatise:
Impeach/Support Expert: 1)they’ve relied
on it; 2)admission that its learned;
3)Get own expert to say it is; 4)Judicial
Notice. If get in this way then H/S
exception. Does not physically go to jury.
Impeachment(yours
or theirs) No bolstering=No prior
consistent(H/S) unless prior ID(not
H/S if witness).
1)Prior Inconsistent
Statement=Not substantive evid, unless:
APO or 1)Oath; 2)formal{grand jury};
3)not H/S! Extrinsic Evidence=opportunity
to explain(unavailable?).
2)Bias/%/Motive/Reliability=Extrinsic
after inquire. Arrest shows %-ie.deal
w/prosec=Extrinsic arrest!
3)Prior Convictions
of Witness=(No arrests): Crime of
Dishonesty. Felony (<10yrs).
Extrinsic.
4)Reputation for
Untruth/Veracity=Extrinsic of reputation/opinion(only)
for truth & veractiy.
5)Specific Acts of
Deceit/Lying=Any act of dishonesty(good
faith). *On Cross only(it’d be extrinsic)!
NO Extrinsic!
No Extrinsic=1)Prior
bad acts; 2)Collateral issue; 3)admits;
4)character W “heard dishonest or bad act.”
Rehabilitation=1)Explain;
2)No prior
consistent=Only on cross. Except: Id
witness testifying (not witness=H/S);
Impeached bias/fabricated testimony may
rebut w/consistent statement prior to
bias/fabrication!
3)Reputation/Opinion=If
prior impeached by conviction, lying,
reputation.
H/S=“Out
court statement to prove the truth of the matter
asserted.” Inadmissible witness or writing.
B/c it denies
opportunity to cross examine declarant
(perception/memory really in issue).
Non H/S=Verbal
Acts! Effect on Hearer/Reader;
Circ Evidence of Declarant’s State of Mind{insanity}.
Prior Inconsistent Statement Under Oath &
Formal Proceeding=Non H/S.
Prior Consistent Statement to Rebut charge of
Recent Fabrication/Bias=Non H/S.
Prior ID by Witness Testifying=Non H/S.
APO=Non H/S.
Vicarious Admission: agent in scope of
employ; partner; co-conspirator; director in
corp.
Unavailbility=privilege;
refuses; lack of memory; death/incapacity;
absent.
1)Former Testimony=1)oath;
2)meaningful cross examination(similar %).
2)Statement Against
Interest=1)pecuniary; 2)proprietary;
3)penal=at time statement was made.
3)Dying Declaration=1)Cause
statement; 2)Belief dying(need
facts); 3)Civil=yes; Criminal=homicide.
*Allowed to Impeach
Out of Court Statement=no need to let
confront or explain! Extrinsic if above!
Availability
Irrelevant=Res Gestae
1)Excited Utterence=1)Startling
event; 2)Made while under stress{some time lapse
ok}; 3)Concern Facts.
2)Present Intent to
do Something=to infer future act was done.
3)Present State of
Mind=if in issue. Malice/intent etc.
4)Present Sense
Impression=precise & contemporaneous.
5)Present Physical
Condition=
6)Past Physical
Condition=1)to med personal; 2)for purpose
of treatment. (Even if hired to testify).
Strike
7)Past Recollection
Recorded=discussed above.
Business Records=1)made
in course of business; 2)germane to
business; 3)w/personal know of entrant;
4)entry made near time of event;
5)Authenticate(by testimony). For
occurrence/nonoccurrence.
Hypo: X saw & tells
employees who put in record=2x H/S. Record Ok
but employee’s of X Statement not.
Official Records=like
business record(includes police reports+so
entrant’s opinions ok, but other’s statements
need exception!). Criminal case=Never
admissible against D. Civil Cases=admissible.
Privileges=May
not comment on it. This is state law ergo
Erie.
1)Attorney/Client=1)confidential
communications; to 2)attorney/agent; 3)professional
legal consultation, 4)privileged unless
waived by client. Corporate clients if know
it is for legal & made for legal reasons. Work
product if necessity.
2)No Privilege =
1)Future crimes or Frauds{attorney/client};
2)Client puts in issue in case(malpractice);
Between parties w/same lawyer; dispute between
lawyer/physician/wife & client; not privately
made(post card).
3)Physician/Psychiatrist/Patient=confidential
info for med in professional relationship
entered into for purpose of obtaining
treatment. Does not apply if patient is
litigant & health in issue. Only applies in
civil cases w/state Law!
4)Spousal Immunity=Don’t
have(may) testify against spouse if married,
Criminal. Post/Pre-marriage etc.
Confidential
Marital Communication=Either prevent
confidential confidences from marriage,
civil/criminal. Post/Pre-marriage
allowed.
Judicial Notice=1)common
knowledge in community or 2)capable of
verification(must w/Stts, may of muni ords/foreign
law). Not Judges personal knowledge!
Civil=conclusive; Criminal=permissive.
Preliminary Fact
Qs=Judge determines by preponderance of
evidence admissibility Qs, may consider H/S,
unauthenticated, anything=judges discretion if
jury is present except confessions(out of
presence of jury). Jury determines weight &
bound by rules.
Choice of Law=Diversity=Erie=Presumptions/Burdens
of Proof; Competency of Witnesses(Dead
Man Stts); Privileges. Fed Q
then look to Fed C/L.
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CONTACT INFORMATION
OFFICE CONSULTATIONS BY APPOINTMENT ONLY:
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Telephone:
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(310) 266 - 4115
- Fax:
- (310) 878 - 0100
- Address:
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Law Offices of
Christopher M. Brainard
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468 North
Camden Drive, 2nd Floor
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Beverly Hills,
California 90210
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Electronic Mail:
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information@christopherbrainard.com
IMPORTANT: Nothing
at this site should be construed as legal advise
for any individual case or situation. This
information is general content only, and should
not be relied upon for any specific information.
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