TRIAL EVIDENCE 2018 - Artistry & Advocacy in the Courtroom, by Professor Thomas Mauet

• Is it relevant?
• Is it reliable?
• Is it right?

• subject matter waiver
• inadvertent waivers made during the discovery process, and
• the effect of federal court orders on other federal and state court proceedings.

For all Arizona attorneys, special consideration will be given to relevant issues surrounding evidence as related to:

ARTICLE 3.  PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS

Rule 301. Is there a presumption of a gift once a petition for dissolution is filed. Bobrow v. Bobrow, 241 Ariz. 763, 391 P.3d 646 (Ct. App. 2017) (premarital agreement provided wife would not receive spousal maintenance, but after wife filed petition for dissolution, husband voluntarily made monthly loan payments on wife’s vehicle and marital residence where both remained living).

ARTICLE 4.  RELEVANCY AND ITS LIMITS

Rule 401. Is testimony about the effect of a U.S. Supreme Court case relevant. Ryan v. Napier, 243 Ariz. 277, 406 P.3d 330 (Ct. App. 2017) (plaintiff sued sheriff’s department for injuries caused when officers used K-9 to apprehend him).

Rule 404(b). When is evidence of another crime, wrong, or act relevant in a civil case. Stafford v. Burns, 241 Ariz. 474, 389 P.3d 76 (Ct. App. 2017) (plaintiffs brought claims for medical malpractice and wrongful death after their son died of methadone overdose; evidence of additional methadone use).

Rule 406. When does other act evidence rise to the level of habit. Rasor v. Northwest Hosp. LLC, 239 Ariz. 546, 373 P.3d 563 (Ct. App. 2016) (plaintiff contended ICU nurse provided deficient care in failing to take steps to minimize bed pressure and in failing to timely discover pressure ulcer), vac’d in part, 242 Ariz. 582, 399 P.3d 657 (2017).

Rules 408 and 613. Is evidence of a consent judgment admissible to establish liability or for impeachment. Phillips v. O’Neil, 243 Ariz. ___, 407 P.3d 71 (2017) (Phillips agreed to consent judgment, in which he waived his right to a trial, admitted his actions violated Arizona’s Consumer Fraud Act and a federal regulation, and agreed to pay restitution, attorney fees, and civil penalties).

ARTICLE 5.  PRIVILEGES

Rule 501. When does a party waive privilege by conduct. Robert W. Baird & Co. v. Whitten, 2017 WL 4296583 (Ct. App. 2017) (plaintiff brought legal malpractice action).

ARTICLE 6.  WITNESSES

Rule 615. When must the trial court exclude a witnesses or preclude review of testimony. Spring v. Bradford, 243 Ariz. 167, 403 P.3d 579 (2017) (during trial, defendant’s attorney provided expert witnesses with transcripts of testimony by plaintiff’s expert witnesses).

Nia v. Nia, 242 Ariz. 419, 396 P.3d 1099 (Ct. App. 2017) (mother contended trial court’s exclusion of her expert witness during father’s testimony prejudiced her ability to present her case).

ARTICLE 7.  OPINION AND EXPERT TESTIMONY

Rule 702. Must the trial court hold a pre-trial hearing to evaluate proposed expert testimony. Stafford v. Burns, 241 Ariz. 474, 389 P.3d 76 (Ct. App. 2017) (plaintiffs moved to preclude any expert testimony extrapolating timing of son’s last methadone injection based on son’s post-mortem gastric methadone levels, claiming this was based on “junk science”).

8:00 am -- Registration  

8: 45 am  -- Is it Relevant?

• General relevance
• Special relevance
• Character traits
• Other acts

10:15 am -- Break  

10: 30 am -- Habit | Policy exclusions | Privileges exclusions

Is it Reliable?

• Hearsay and non-hearsay
• Hearsay exceptions

12:00 pm -- Lunch on Your Own

1:15 pm -- Exceptions-statements | Exceptions-spontaneous statements | Exceptions-records

Is it Right?

• Witness competency
• Direct examination
• Experts-9 steps
• Cross-examination

2:45 pm -- Break

3:00 pm -- Impeachment - 7 methods | Rehabilitation | Exhibits-7 groups | Original documents rule


4:30 pm -- Adjourn