DOCSLIB.ORG

Employment Evidence

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Employment Evidence EMPLOYMENT EVIDENCE Eugene K. Hollander Contact us at (800) 440-4780 or www.jamespublishing.com (Rev. 10, 2/13) Copyright © 2013 James Publishing, Inc. ISBN 1-58012-081-4 This publication is intended to provide accurate and authoritative information about the sub- ject matter covered. It is sold with the understanding that the publisher does not render legal or other professional services. If legal advice or other expert assistance is required, seek the services of a competent professional. Persons using this publication in dealing with specific legal matters should exercise their own independent judgment and research original sources of authority and local court rules. The publisher and the author make no representations concerning the contents of this publi- cation and disclaim any warranties or merchantability or fitness for a particular purpose. Caveat: The jury instructions provided in this book should be viewed as model instructions only. They are not intended to be used verbatim in every case. The law changes rapidly in this practice area and counsel must conduct independent legal research when preparing jury instructions. Also, you will achieve the best success by tailoring the language of the instruc- tions to match the complaint, trial evidence, and the particular issues at hand. We view the publication of this work as the beginning of a dialogue with our readers. Periodic revisions to it will give us the opportunity to incorporate your suggested changes. Call us at (714) 755-5450 or send your comments to: Managing Editor James Publishing, Inc. 3505 Cadillac Ave., Suite P Costa Mesa, CA 92626 STAFF Managing Editor: Lisa J. Dunne, Esq. Production: Adam Pringle and Amanda Winkler First Edition, 2/03 Revision 6, 2/09 Revision 1, 3/04 Revision 7, 2/10 Revision 2, 2/05 Revision 8, 2/11 Revision 3, 3/06 Revision 9, 3/12 Revision 4, 2/07 Revision 10, 2/13 Revision 5, 2/08 F-2 ABOUT THE AUTHOR Eugene Hollander is a principal of the Law Offices of Eugene K. Hollander, Chicago, Illinois. Mr. Hollander concentrates on representing employees and employers in all phases of employ- ment litigation before the state, federal, and appellate courts and administrative agencies. He is a frequent lecturer on topical employment issues. Mr. Hollander is a member of the National Employment Lawyers Association, Federal Bar Association, Illinois State Bar Association, and Chicago Bar Association. ACKNOWLEDGEMENT The author would like to gratefully acknowledge Jeffrey Toppel for providing valuable research assistance. The author would also like to dedicate this book to his wife Caryn, who provided constant moral support during this undertaking, and to his children Josh and Marissa, who were patient and understanding while their dad was busy writing. EDITORIAL ADVISORY BOARD H. Mark Adams Todd J. McNamara Jones, Walker Todd J. McNamara, P.C. New Orleans, LA Denver, CO Harvey C. Berger Eric L. Siegel Pope & Berger Henrichsen Siegel, P.L.L.C. San Diego, CA Washington, DC Joyce F. Glucksman Phyllis J. Towzey Joyce F. Glucksman, P.C. Stein & Towzey, L.L.P. Atlanta, GA St. Petersburg, FL Debra S. Katz Darlene A. Vorachek Bernabei & Katz, PLLC Abrahamson Vorachek & Mikva Washington, DC Chicago, IL David L. Lee John D. Weiss Law Offices of David L. Lee Law Offices of John D. Weiss Chicago, IL Encino, CA 818-990-1605 Forms Contributor Charles A. Edwards Womble, Carlyle, Sandridge & Rice Raleigh, NC F-3 (Rev. 10, 2/13) Employment Evidence (This page intentionally left blank.) F-4 Summary Table of Contents SUMMARY TABLE OF CONTENTS Chapter 1. Summary Judgment Chapter 2. Administrative Decisions and Materials Chapter 3. Plaintiff’s Prior Acts Chapter 4. Defendant’s Prior Acts Chapter 5. Statistical Evidence Chapter 6. Defendant’s Documents Chapter 7. Testimonial Evidence Chapter 8. Financial Evidence Chapter 9. Plaintiff’s Medical and Psychological Evidence Chapter 10. Expert Evidence Chapter 11. Employer Responses Chapter 12. Demonstrative Evidence Chapter 13. Electronic Evidence Chapter 14. Attorney’s Fees and Costs Chapter 15. Punitive Damages F-5 (Rev. 10, 2/13) Employment Evidence TABLE OF CONTENTS Chapter 1. Summary Judgment I. INTRODUCTION §1:10 Generally §1:20 Summary Judgment Standards §1:30 Applicable Law II. CONSIDERATIONS WHEN MOVING FOR SUMMARY JUDGMENT §1:40 Employer’s Motion §1:45 Motion for Sanctions §1:50 Timing of Motion §1:60 Time for Employee’s Response III. OTHER PRIOR ACTS OF PLAINTIFF §1:70 Materials Must Be in Record §1:71 Plaintiff Checklist—Preparing for the Plaintiff’s Deposition §1:72 Plaintiff’s Outline for Deposing the Sexual Harasser §1:80 Checklist—Defendant’s Evidentiary Materials §1:81 Deposition Outline for the Plaintiff (FLSA and Retaliatory Discharge Claims) §1:85 Form: Affidavit in Accordance With Fed. R. Evid. 1006 IV. EMPLOYER’S MOTION §1:90 Format of Motion §1:100 Form: Defendant’s Motion for Summary Judgment §1:110 Affidavits Supporting Motion §1:120 Checklist—Drafting Decisionmaker’s Affidavit §1:130 Challenging Plaintiff’s Prima Facie Case §1:140 Checklist—Evidence Challenging Performance Element of Plaintiff’s Prima Facie Case §1:150 Sexual Harassment Cases §1:160 ADA Cases §1:161 Summary Judgment on Basis of Judicial Estoppel §1:161.1 Case Example: Claim Not Precluded §1:161.2 Case Examples: Claim Precluded §1:161.3 Form: Motion for Summary Judgment—Defendant—Judicial Estoppel §1:170 Pre-Motion Deposition Checklist—ADA Case §1:180 Retaliation Cases §1:190 Anticipating Pretext V. PLAINTIFF’S RESPONSE §1:200 Introduction §1:210 Explain Continuance With Rule 56(f) Affidavit §1:210.1 Form: Rule 56(f) Affidavit §1:210.2 Form: Plaintiff’s Motion to Extend Discovery Cutoff §1:220 Checklist—Plaintiff’s Evidentiary Materials §1:230 Forms: Plaintiff’s Cross-Motion for Summary Judgment §1:230.1 Form: Plaintiff’s Cross-Motion for Summary Judgment— General §1:230.2 Form: Plaintiff’s Cross Motion for Partial Summary Judgment—Americans With Disabilities Act §1:230.3 Form: Plaintiff’s Opposition to Summary Judgment—ADEA §1:230.4 Form: Plaintiff’s Response to Motion for Summary Judgment—RIF §1:230.5 Form: Plaintiff’s Response to Motion for Summary Judgment—PDA/FMLA F-6 Table of Contents §1:230.6 Form: Plaintiff’s Response to Motion for Summary Judgment—Race Discrimination §1:230.7 Form: Plaintiff’s Response to Defendant’s Motion for Summary Judgment—Race—Hostile Work Environment §1:240 Sexual Harassment Cases §1:240.1 Form: Plaintiff’s Opposition to Motion for Summary Judgment and Cross-Motion Chapter 2. Administrative Decisions and Materials I. EEOC Determination Letters and Materials §2:10 Introduction §2:20 Common Fact Pattern §2:30 Foundation §2:40 Objections §2:50 Plaintiff’s Tactics §2:60 Form: Plaintiff Request for Right to Sue Letter §2:64 Form: Jury Instruction—Receipt of Notice of Right to Sue §2:70 Form: Plaintiff Letter to EEOC Requesting Investigative File §2:80 Form: Jury Instruction §2:90 Defendant’s Tactics §2:100 Form: Defendant’s Motion in Limine to Exclude and Bar Evidence Concerning EEOC Cause Finding §2:110 Cases Involving EEOC Determination Letters and Materials §2:110.1 Evidence Admitted §2:110.2 Evidence Excluded II. STATE AGENCY REPORTS §2:120 Introduction §2:130 Common Fact Pattern §2:140 Foundation §2:150 Objections §2:160 Plaintiff’s Tactics §2:170 Form: Plaintiff Bench Brief—Exclusion of Evidence From Unemployment Compensation Hearing §2:180 Defendant’s Tactics §2:190 Cases Involving State Administrative Agency Reports §2:190.1 Evidence Admitted §2:190.2 Evidence Excluded §2:190.3 Cases Involving Issue Preclusion III. ARBITRATION DECISIONS §2:200 Introduction §2:210 Common Fact Pattern §2:220 Foundation §2:230 Objections §2:240 Plaintiff’s Tactics §2:250 Defendant’s Tactics §2:260 Cases Involving Admissibility of Arbitration Decisions §2:260.1 Evidence Admitted §2:260.2 Evidence Excluded IV. DISABILITY APPLICATIONS AND MATERIALS §2:270 Introduction §2:280 Common Fact Pattern §2:290 Foundation §2:300 Objections §2:310 Plaintiff’s Tactics §2:320 Form: Plaintiff’s Motion in Limine to Bar Evidence Concerning Plaintiff’s Application for Social Security Benefits (Rev. 10, 2/13) F-7 Employment Evidence §2:330 Defendant’s Tactics §2:340 Defendant—Examination Checklist—Plaintiff’s Inconsistent Disability Statements §2:350 Cases Involving Disability Applications and Materials §2:350.1 Evidence Admitted or Defense Allowed §2:350.2 Evidence Not Admitted or Defense Not Allowed Chapter 3. Plaintiff’s Prior Acts I. PLAINTIFF’S PRIOR SEXUAL CONDUCT §3:10 Introduction §3:20 F.R.E. 412—Special Requirements §3:30 Common Fact Pattern §3:40 Foundation §3:50 Procedure to Admit Sexual Conduct Evidence Under F.R.E. 412 §3:50.1 Form: Defendant’s Motion Pursuant to F.R.E. 412 §3:50.2 Form: Plaintiff’s Response to Motion Pursuant to F.R.E 412 §3:60 Objections §3:70 Defendant’s Tactics §3:80 Plaintiff’s Tactics §3:80.1 Form: Plaintiff’s Motion in Limine to Exclude Prior Sexual Acts §3:80.2 Form: Plaintiff’s Motion for Protective Order §3:90 Jury Instructions §3:90.1 Form: “Unwelcome Conduct” §3:90.2 Form: “Unwelcome Conduct”—Examples §3:100 Cases on Key Issues §3:100.1 Previous Sexual Contact With Alleged Harasser §3:100.1.1 Evidence Precluding Harassment Claim §3:100.1.2 Evidence Not Precluding Harassment Claim §3:100.2 Sexual Behavior in Workplace §3:100.2.1 Evidence Excluded §3:100.2.2 Evidence Admitted §3:100.3 Sexual Conduct Outside Workplace §3:100.3.1 Evidence Excluded §3:100.3.2 Evidence Admitted §3:100.4 Sexual Conduct Involving Third Parties §3:100.4.1 Evidence Excluded §3:100.4.2 Evidence Admitted II. AFTER-ACQUIRED EVIDENCE §3:110 Introduction §3:120 Common Fact Pattern §3:130 Foundation §3:140 Objections §3:150 Defendant’s Tactics §3:160 Plaintiff’s Tactics §3:160.1 Form: Plaintiff’s Motion in Limine to Exclude Evidence of Alleged Misconduct §3:170 Jury Instructions §3:170.1 Form: After-Acquired Evidence §3:170.2 Form: After-Acquired Evidence—Offsets to Damages §3:180 Cases on Key Issues §3:180.1 Applying After-Acquired Evidence to Limit Damages §3:180.2 Declining to Apply Doctrine III.
Load more

Recommended publications
  • On Demonstrative Evidence and Trial Graphics: What Works and What Doesn't
    Criminal Law Practitioner Volume 2 Issue 1 Article 3 2014 On Demonstrative Evidence and Trial Graphics: What Works and What Doesn't Ryan Flax A2L Consulting Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons, Evidence Commons, and the Litigation Commons Recommended Citation Flax, Ryan (2014) "On Demonstrative Evidence and Trial Graphics: What Works and What Doesn't," Criminal Law Practitioner: Vol. 2 : Iss. 1 , Article 3. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss1/3 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Criminal Law Practitioner Flax: On Demonstrative Evidence and Trial Graphics: What Works and What ON DEMONSTRATIVE EVIDENCE AND TRIAL GRAPHICS: WHAT WORKS AND WHAT DOESN'T' manipulation of evidence. Did you know that color plays a major role? 1. Litigation Graphics, Psychology and Color Litigation graphics are almost never Meaning' black and white - they almost always involve As a litigation consultant, one of my the use of color. Most colors carry psychologi- primary responsibilities is to help litigation cal (and even physiological), cultural, personal, teams develop and effectively use demonstra- emotional, and expressive implications that tive evidence' to support their trial presenta- can impact how persuasive you are when us- tion. The primary means of doing this is to ing them.
    [Show full text]
  • GUIDE to NEW YORK EVIDENCE ARTICLE 11 REAL and DEMONSTRATIVE EVIDENCE TABLE of CONTENTS 11.01 Real Evidence 11.03 Demonstrative
    GUIDE TO NEW YORK EVIDENCE ARTICLE 11 REAL AND DEMONSTRATIVE EVIDENCE TABLE OF CONTENTS 11.01 Real Evidence 11.03 Demonstrative Evidence 11.05 Anatomically Correct Dolls 11.07 Childs Age 11.09 Demonstrations and Experiments 11.11 Personal Appearance & Capability 11.13 Photographs 11.15 Viewing of Premises 11.17 Exhibits to the Jury 11.01. Real Evidence (1) Definition. Real Evidence refers to any tangible object or sound recording of a conversation that is offered in evidence. (2) Admissibility. Real evidence is admissible upon a showing that it is relevant to an issue in the proceeding, is what it purports to be, and has not been tampered with. Proof that an object has not been tampered with and is what it purports to be depends on the nature of the object and, in particular, whether the object is patently identifiable, or fungible. (a) Patently identifiable evidence. When real evidence possesses unique or distinctive characteristics or markings and is not subject to material alteration that is not readily apparent, evidence identifying the object normally will constitute the requisite proof. (b) Fungible evidence. When real evidence is fungible, capable of being altered, contaminated, or replaced, or is a sound recording, in addition to testimony identifying the object, proof that the proffered evidence has not been tampered with is required and may be satisfied by: (i) a chain of custody (i.e. testimony of those persons who handled the object or recording from the time it was obtained or recorded to the time it is presented in court to identify the object or recording and attest to its unchanged condition); or (ii) proof of circumstances that provide reasonable assurances of the identity and unchanged condition of the object or recording.
    [Show full text]
  • Evidence (Real & Demonstrative)
    Evidence (Real & Demonstrative) E. Tyron Brown Hawkins Parnell Thackston & Young LLP Atlanta, Georgia 30308 I. TYPES OF EVIDENCE There are four types of evidence in a legal action: A. Testimonial; B. Documentary; C. Real, and; D. Demonstrative. A. TESTIMONIAL EVIDENCE Testimonial evidence, which is the most common type of evidence,. is when a witness is called to the witness stand at trial and, under oath, speaks to a jury about what the witness knows about the facts in the case. The witness' testimony occurs through direct examination, meaning the party that calls that witness to the stand asks that person questions, and through cross-examination which is when the opposing side has the chance to cross-examine the witness possibly to bring-out problems and/or conflicts in the testimony the witness gave on direct examination. Another type of testimonial evidence is expert witness testimony. An expert witness is a witness who has special knowledge in a particular area and testifies about the expert's conclusions on a topic. ln order to testify at trial, proposed witnesses must be "competent" meaning: 1. They must be under oath or any similar substitute; 2. They must be knowledgeable about what they are going to testify. This means they must have perceived something with their senses that applies to the case in question; 3. They must have a recollection of what they perceived; and 4. They must be in a position to relate what they communicated 1 Testimonial evidence is one of the only forms of proof that does not need reinforcing evidence for it to be admissible in court.
    [Show full text]
  • Evidence and Trial Practice
    University of Kentucky UKnowledge Continuing Legal Education Materials Kentucky Legal History 10-2001 Evidence and Trial Practice Office ofon C tinuing Legal Education at the University of Kentucky College of Law Right click to open a feedback form in a new tab to let us know how this document benefits oy u. Follow this and additional works at: https://uknowledge.uky.edu/uky_cle Part of the Evidence Commons Repository Citation Office of Continuing Legal Education at the University of Kentucky College of Law, "Evidence and Trial Practice" (2001). Continuing Legal Education Materials. 50. https://uknowledge.uky.edu/uky_cle/50 This Book is brought to you for free and open access by the Kentucky Legal History at UKnowledge. It has been accepted for inclusion in Continuing Legal Education Materials by an authorized administrator of UKnowledge. For more information, please contact [email protected]. ----,UK _____ eLE EVIDENCE AND TRIAL PRACTICE October 2001 ----,UK---- __ eLE EVIDENCE AND TRIAL PRACTICE October 2001 Presented by the OFFICE OF CONTINUING LEGAL EDUCATION UNIVERSITY OF KENTUCKY COLLEGE OF LAW FROM THE LAW LIBRARY OF: Written materials and oral presentations offered through the University of Kentucky College of Law Office of Continuing Legal Education (UK/CLE) are designed to assist lawyers in maintain­ ing their professional competence. The Office of Continuing Legal Education and its volunteer speakers and writers are notrendering legal or other professional services by their participation in continuing legal education activities. Attorneys and others using information obtained from UK/ CLE publications or seminars must also fully research original and current sources of authority to properly serve their or their client's legal interests.
    [Show full text]
  • Demonstrative Evidence and Expert Opinion
    Washington University Law Review Volume 1956 Issue 1 January 1956 Demonstrative Evidence and Expert Opinion Mason Ladd University of Iowa College of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Evidence Commons Recommended Citation Mason Ladd, Demonstrative Evidence and Expert Opinion, 1956 WASH. U. L. Q. 1 (1956). Available at: https://openscholarship.wustl.edu/law_lawreview/vol1956/iss1/6 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. WASHINGTON UNIVERSITY LAW QUARTERLY Volume 1956 February 1956 Number 1 DEMONSTRATIVE EVIDENCE AND EXPERT OPINION MASON LADDt Demonstrative evidence has become the fashion of today in the trial of cases. The subject has reached epidemic proportions, and modern trials include this magic method of persuasion as one of the best gadgets yet devised to obtain jury verdicts and to aid the court in understanding the full meaning of factual and scientific evidence. The emphasis upon demonstrative evidence is a part of the times even though it has been used in one form or another as long as there have been court trials. Even in biblical times Solomon the Wise resorted to demonstrative evidence when called upon to decide which of two women was the mother of an infant child. When he proposed to cut the child in half and give half to each, the human instinct of thfe true mother readily demonstrated the one to whom the child belonged, for she asked that the other woman be given the child.
    [Show full text]
  • TMCEC Bench Book Chapter 16
    TMCEC Bench Book CHAPTER 16 EVIDENCE Evidence is the proof necessary to establish the facts that are found by the judge or jury in a court of law. See TMCEC The Municipal Judges Book: Chapter 2, Section I. Not all facts, recollections, records, opinions, or physical items are evidence. Each of the heretofore mentioned proofs must meet certain legal standards before they are deemed to constitute evidence. In determining whether an offered proof is evidence, the court must determine whether it is legally admissible, the factual credibility of the evidence is to be determined by the fact finder after hearing all the evidence. The court determines if the proof meets the legal threshold of admissibility, not whether the proof is conclusive, credible, believable, or true. Rule 104, T.R.E. The most common form of evidence is oral statements of witnesses based on personal knowledge. Evidence can, in limited circumstance, be opinions of a witness. Evidence can also be physical items, such as records, photos, recordings, and the like. Demonstrative evidence is proof offered as demonstrations of the witness’ recollections and perceptions. This includes physical demonstrations by the witness, drawings created during or before testimony, experiments, lists, items that are introduced that look like items observed by the witness, or any other item that demonstrates other properly introduced evidence. 1. When do the Texas Rules of Evidence Apply? Checklist 16-1 Script/Notes 1. The Rules of Evidence apply in all trials before the Art. 45.011, C.C.P. court or a jury. a. They apply in all adversary hearings before the court except: (1) Preliminary hearings to determine if Rule 101(d)(1)(D), T.R.E.
    [Show full text]
  • Bringing Demonstrative Evidence in from the Cold: the Academy's Role in Developing Model Rules Maureen A
    University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2016 Bringing Demonstrative Evidence in from the Cold: The Academy's Role in Developing Model Rules Maureen A. Howard University of Washington School of Law Jeffry C. Barnum Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles Part of the Evidence Commons Recommended Citation Maureen A. Howard and Jeffry C. Barnum, Bringing Demonstrative Evidence in from the Cold: The Academy's Role in Developing Model Rules, 88 Temple L. Rev. 513 (2016), https://digitalcommons.law.uw.edu/faculty-articles/369 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected]. BRINGING DEMONSTRATIVE EVIDENCE IN FROM THE COLD: THE ACADEMY'S ROLE IN DEVELOPING MODEL RULES Maureen A. Howard and Jeffery C. Barnumt To this day, judges and advocates struggle with the definition and use of "demonstrative evidence." The ambiguity of this term (or its close cousins "illustrative evidence" and evidence offered "for illustrative purposes only") infects the judicial process with uncertainty, hindering advocates when preparing for trial and, in some cases, producing erroneous verdicts. For example, the Seventh Circuit recently reversed a case for improper use of a demonstrative exhibit, and on retrial the result swung from a defense verdict to an $11 million plaintiffs victory. Uncertainty about the admission and use of demonstrative evidence has festered for decades.
    [Show full text]
  • Demonstrative Evidence
    THE TATE LAW FIRM Mary Lynn Tate lynntatefalnfLxs.com October 22, 2008 The Hon. Diane M. Strickland, Chair Boyd-Graves Conference 809 Oakwood Drive, S.W. Roanoke, VA. 24015 Re: Boyd-Graves study of the use and admission of demonstrative evidence At your request it has been my pleasure to chair the committee to address issues related the use and admissibility of demonstrative evidence. In particular you indicated your expectation that we address the following: 1) the use/admission of summary exhibits and charts (taking into consideration the Federal Rule and N&W v. Puryear) [Norfolk & Western Railway Co. v. Puryear, 250 v. 559, 463 S.E.2d 442 (1995)] 2) the use of trial transcripts in closing 3) possible amendment of the scheduling order. Our committee met by telephone conference on several occasions to discuss the issues for study set forth above. Although few members of the committee had personally experienced a problem in this area of inquiry, some had and we were made aware of problems encountered by others through canvassing our colleagues. Abingdon Professional Centre, 110 Abingdon Place, Abingdon, VA. 24211 Phone: (276) 628-5185 Fax: (276) 628-5045 In addition to the items that you requested we address, we also discussed the following: 1. difficulties defining and admission of demonstrative v. substantive, real v. illustrative evidence 2. other Puryear "summaries" issues, i.e. damages, medical bills lists, etc. 3. preapproval procedures for use in opening 4. use of pleadings, transcripts, jury instructions 5. blow ups, projection and other visual exhibition of substantive evidence 6. artist renderings depicting actual injuries, cuts, fractures, etc.
    [Show full text]
  • Demonstrative Evidence
    11.03. Demonstrative Evidence (1) Definition. “Demonstrative evidence” refers to a visual, graphic, or sound aid used to explain or illustrate a witness’s testimony or the presentation of the proponent’s case. (2) Admissibility. A visual or graphic aid proffered as demonstrative evidence may be exhibited to the trier of fact provided: (a) it is a fair and accurate depiction or representation of what it purportedly depicts or represents; and (b) it helps the factfinder to better understand the testimony of a witness or the presentation of a party’s case. (3) The court may, in the exercise of its discretion, exclude the offered demonstrative evidence pursuant to Guide to New York Evidence rule 4.07. Note Subdivision (1) broadly defines “demonstrative evidence.” Any type of visual, graphic, or sound aid that is capable of explaining or illustrating oral testimony or the presentation of the proponent’s case may constitute demonstrative evidence. In particular, New York has long approved the admission in evidence of a map, diagram, drawing, photograph, model and similar demonstrative evidence when the evidence is properly authenticated, is relevant to a particular issue, and would assist the finder of fact in understanding the case (see People v Del Vermo, 192 NY 470, 482-483 [1908] [model of knife]; Hinlicky v Dreyfuss, 6 NY3d 636, 645-647 [2006] [flow diagram]; People v Russell, 79 NY2d 1024, 1025 [1992] [bank surveillance photographs]; People v Acevedo, 40 NY2d 701, 704-705 [1976] [voice identification test]; People v Mariner, 147 AD2d 659 [2d Dept 1989] [in-court demonstration as to ability to observe drug transaction at a distance with binoculars]; Norfleet v New York City Tr.
    [Show full text]
  • Essentials of Demonstrative Evidence
    Feature Article Hon. Donald J. O’Brien, Jr. (Ret.) Charles P. Rantis Johnson & Bell, Ltd., Chicago Essentials of Demonstrative Evidence Presentation of evidence at trial is constantly evolving. In this digital age, the use of visual aids and visual communication is critical in helping the jury understand the issues it must decide. The trial attorney who presents his case without effective and persuasive demonstrative evidence runs the risk of the jury not understanding the themes he has presented at trial. A thorough understanding of the use of demonstrative evidence and the necessary evidentiary foundations is essential. Overview of Demonstrative Evidence Definition of Demonstrative Evidence A picture is worth a thousand words is an old cliché. Visual aides to explain to, or educate, the jury are necessary tools to provide lasting impressions on the jury during its deliberations. Demonstrative evidence is evidence that appeals to the senses of sight, sound, or touch of the jurors. Demonstrative evidence is evidence that is not the actual or real piece of evidence, but is a representation or depiction of the actual or real piece of evidence. Trial Evidence, Second Edition, Thomas A. Mauet and Warren D. Wolfson, pp. 321 – 326, (2001). Significance of Demonstrative Evidence at Trial Very few trials are simply won based on what testimonial evidence from the witness stand jurors hear. Demonstrative evidence provides an extra dimension to testimonial evidence, especially expert testimony. Moreover, demonstrative evidence often provides the cohesive context for the jury’s understanding of how the testimonial evidence and real evidence (e.g. tangible objects) relate to the themes presented at trial, and to the issues the jury just decide.
    [Show full text]
  • DEMONSTRATIVE EVIDENCE Kevin Visser Mark Sherinian Simmons
    DEMONSTRATIVE EVIDENCE Kevin Visser Mark Sherinian Simmons Perrine Moyer Bergman PLC Sherinian & Hasso Law Firm 115 Third Street SE, Suite 1200 3737 Woodland Suite 630 Cedar Rapids, IA 52401-1266 West Des Moines, Iowa The purpose of our presentation is to convey how to compellingly use demonstrative evidence and visual presentations to convince and persuade jurors in employment cases. The parameters for both are described in this outline so that counsel at trial will understand the limits and opportunities to use these communication tools. Non-evidentiary tools. During opening statement, closing argument and witness examination, counsel have the opportunity to use charts, diagrams, pictures, calculations, etc. to create visual images of the evidence they wish to emphasize. “Generally, a trial court may in its discretion permit counsel, in addressing a jury, to display drawings, diagrams, maps or other visual aids, not put in evidence, for the purpose of illustrating or elucidating matters properly in evidence provided the jury understands that they are employed merely for such purposes and are not of themselves evidence in any sense.” State v. Blyth, 226 N.W.2d 250, 272, 1975 Iowa Sup. LEXIS 928, *58, (Iowa 1975). In the trial of an employment claim, counsel should use several visual tools to properly describe their case and the evidence during opening, trial testimony and closing. An organizational chart with key actors, a timeline with critical dates and a damages summary are essential. Many trial lawyers use a completed verdict form to directly explain their request for a verdict in their client’s favor. All of these can easily be incorporated into a power point presentation.
    [Show full text]
  • Engaging Your Jury Through Creative Use of Demonstrative Exhibits
    BUSINESS LITIGATION AND TRIAL TECHNIQUES AND TACTICS APRIL 2018 IN THIS ISSUE Demonstrative exhibits can breathe life intoOctober otherwise 2014 dull testimony and transform a witness from a distant talking head into an animated and vibrant teacher. This article discusses best practices for the use of demonstrative exhibits at trial. Engaging Your Jury Through Creative Use of Demonstrative Exhibits ABOUT THE AUTHOR Carl Aveni is a partner in the Litigation Practice Group of Carlile Patchen & Murphy in Columbus, Ohio. He concentrates his practice on the defense of complex commercial disputes and business torts, products liability, and professional liability cases before state and federal courts, as well as industry regulatory agencies. Carl has successfully argued before the Ohio Supreme Court, The United States Court of Appeals for the Sixth Appellate Circuit, numerous state appellate courts and in trial courts throughout Ohio. He lectures frequently on trial tactics and techniques, and serves on the Franklin County Democratic Judicial Screening Committee and the Judicial Administration and Legal Reform Committee of the Ohio State Bar Association. Carl is the IADC’s State Membership Chair for Southern Ohio. He can be reached at [email protected]. The International Association of Defense Counsel serves a distinguished, invitation-only membership of corporate and insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit
    [Show full text]