CCII 44- Trial Admissibility at the SCCBA Civil Practice Committee Seminar

Join Bob Sallander for this except from the Trial Admissibility seminar hosted by the Santa Clara County Bar Association's Civil Practice Committee. 

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Transcript

Welcome! You are listening to Coverage Counselors In, a weekly podcast for insurance claims professionals. This podcast is for educational and informational purposes only.

It should not be considered legal advice. No attorney -client relationship is created
or implied. For legal assistance, contact a lawyer licensed in your state. And now
your host, Robert Sallander.

Hello, my name is Joshua Gilliland. I'm an attorney with Robert Sallander. This
episode of Coverage Counsel as In was recorded live for a seminar hosted by the
Santa Clara County Bar Association Civil Practice Committee on April 24th, 2025 at McManis Falkner in San Jose, California. This section of the seminar addressed
admissibility requirements for evidence in California. Tune in and we hope you enjoy.

By a show of hands, how many of you draft your jury instructions the day you start
working on the case.

None of you start. Start tomorrow. Draft your jury instructions.

They won't be the final instructions.
But they'll be close. Go to KC and just, it's available on Lexis.
You just go into KC on Lexis and pull out the jury instructions that you think are
going to be relevant to your case or the deal with the causes of action. Easy to
do, not a problem. They tell you, and there's nothing worse than having the judge
read the jury instructions at the end of the case, and you say, "Oh, I didn't know
that." Do it first, and Then this chart that's in the PowerPoint material,
and which you can also get in the Rutter Guide on Lexis, is going to make sense
to you. And this is the checklist, for lack of a better word, that you should follow with every piece of evidence that you want to offer. I don't care if it's testimony,
if it's a document, if it's a bloody knife, if it's a gun, if it's a fingerprint, no matter what it is, know what it is and where it fits within the elements of those instructions that you've written out. Which element of those instructions does this testimony or this thing have a tendency to prove or disprove?
And please do not ignore the evidence that's bad for you. In fact,
I think you want to know the evidence that's bad for you more than you want to
know the evidence that's good for you okay once you know what we just talked about what the jury instructions or elements are and what the thing is that's going to help you prove or disprove that fact you've got point number one here relevance so I was sitting in a mediation the other day and they were going on and on and on about something that was happening in the case, it's a total collateral issue.
And oh, the jury's going to be so upset with that. And they're going to hammer
your client. And so I just said, how is it relevant? It's a trespass case.
How is what an insurance company told their insured -to -do relevant to whether the insured trespassed on the property.
Well, it shows animals who's the insurance companies.
So it's the whole thing, it was all about how is that even relevant, why are we
talking about that? By the way, whenever you want to argue with somebody, just say, "How's that relevant?" And then never accept their explanation. Point number two on the chart. After you've figured out how it's going to prove or disprove something, you've got to talk about the foundation. You've got to figure out what the foundation is that you're going to lay. And there are different foundations. There are books written written on foundation. We can't just easily say,
oh, well, you get a witness or something. You don't always have to have a witness.
Sometimes you have a witness, but they're not the right witness. So study your
foundation.
For example, who knows what the foundation for a photograph is? Just sitting here
thinking do you think you know what the foundation is for a photograph nobody's
raising their hand everybody's nervous do you know okay so how many of you think you have to have the person who took the picture authenticated okay true or false okay yeah - Yeah. - Yeah? Okay, how many of you think that any person who has been to the scene can say, yeah, that's what it looked like at the time,
how many of you think that'll do authentication?
Okay. - So the judges-- - No cheating. And I happen to think that you have to have
a person who was there at the time of the incident That says that's what I looked
like
Yeah, yeah at the time
Yeah, right right now, that's the point that's a little you know, I throw in tricks
Okay, so that's how you lay a foundation. What about a document?
Judge Manukin was just talking about-- was it you, Judge? It talked about the
emails? Yeah. Yeah. Oh, my God. OK. So I'm embarrassed about this.
Yesterday, one of my partners walked in and said to me, did you authorize this
payment of $35 ,000 for coaching?
And I said, no. He says, well, who is this person, last name McKee,
I said I don't know. Well I've got an email here that says you authorized it.
Well what had happened is some scammer had sent to our bookkeeper an invoice and had mocked up an entire email string that suggested that there had been back and forth between me and that person. Well, fortunately, we hadn't paid it. But it looked so real that our bookkeeper was ready to write a check for $35 ,000 on my nonexistent say -so.
That makes me unhappy. So we have now instituted further safeguards.
But emails are really easy. really easy.
Josh could talk about this for hours because he's into electronically stored stuff
and metadata and all this kind of stuff. But in this day and age, if you can't
check the metadata of an electronically stored document,
you might be at a disadvantage. We have a case right now where they're claiming,
they're not quite sure whether they're claiming 18 million or 80 million dollars in
damage. But their proof is a spreadsheet.
How many of you think a spreadsheet is proof of their damages? They think that,
so there are some lawyers that think that, well, I think that the spreadsheet might
work as a compilation if you have the supporting documents for it and you can
authenticate the compilation with the supporting documents. They're in big trouble with their $80 million case because they don't have the supporting documents. They just had somebody create a spreadsheet. You know, I knew that now at the beginning of the case, and actually I've had multiple cases where they've tried to prove their damages just by a spreadsheet that a controller or a CFO or an account put together, and we say produce the backup. Well, there's so much documentation.

How do you store it? Well, it's in our accounting software. Fine. Get somebody to
download it and send it to us. So that's foundation. Notice that hearsay is in the
middle. It's way down there. A hearsay is something like we always go to that
first, because we look, oh, it's a document. It's an out -of -court statement. It's
offered for the truth of the matter asserted. In the Odom case, she said,
Although it's not for the truth of the matter asserted, but then she argued the
truth in her closing argument, well, maybe it is hearsay,
and you have to evaluate it, and maybe it's not just one level of hearsay.
So we did a trial up in Anchorage, and don't go there in March.
It never got above of six.
But the other side had, it was a Lanham Act case,
which is fraudulent advertising under the federal law.
And so they were trying to show that they had not been fraudulent in their
advertising because they had a stack of maybe two three -inch binders worth of statements signed by their customers attesting that they had not been fraudulent
well They had a business records exception problem.
They had a hearsay problem over the signature Were they going to call in say that
there were 500 of those signatures? How are they going to call in 500 people to
authenticate the signature? And so it was a real problem for them.
hearsay is an out -of -court statement offered for the truth.
It's not an act like an official act. So it comes back to what is the purpose for
which you're offering this? Is it a statement by somebody of a fact that you want
to be true or, for example, are you trying to show a state of mind of the person
who had a previous conviction or something like that? So it's not as easy as just
saying, do I have an authenticated document, which is what we were just talking
about, but know why you wanna use it, then lay the proper foundation for using it for that purpose. And that's gonna help you with the hearsay to decide whether it is an out -of -court statement offered for
the truth or for some other purpose, and then maybe you can get an official records exception if you get proper endorsement of that document from the other court.
Does that help you? Yes. And what you can do, what you can do, if the witness
gets on the stand and you have this document, have you ever been convicted of a
felony? No. But let me show you this documents, show it to the other side, get it
marked for identification. Does this reflect your -- does this refresh your
recollection? Well, they see that, they might say, "Well, yeah, I guess I did that
so long ago. I forgot about it." Something like that. If that's all you're using it
for. She's trying to keep it out. She's trying to keep it out. Oh.
Well, maybe we've given you some ways, too. Yeah, okay. That might be a 352 before trial. Yeah, too remote.
Last year not. So along those lines, you don't have to use every document you have. Let me let me say it differently.
You don't have to admit into evidence every document you have.
Keep in mind the witness doesn't know whether it's going to get into evidence or
not.
You can refresh a witness's recollection with everything, or anything.
At least that's what I was taught. Actually, what's that? I was told spaghetti.
Yeah, yeah.
See, that's so great because when I was out of school, the professor said, "You can
even refresh the recollection by using the Bible." And I thought, "Well, nobody
remembers that."
But yeah, you can use all sorts of things. I'll give you this war story, sorry for
this, but this goes back to, and this will help our expert Norm, who's up here in
front,
how not to get impeached at trial. We're in this trial and we have an
epidemiologist from the other side who's up on the stand and they ask him to
criticize our side's epidemiologist.
So I have my epidemiologist sitting with me because you're allowed to do that to
help you cross -examine. I'll tell you, the epidemiological reports and supporting
evidence were so voluminous. Anyway, the opposing expert gets up there and starts seeing things that are false about the content of my epidemiologist's report.
And my guy is pulling out the pages showing me where it's false.
Well, I can't put my guy's report into evidence.
It's hearsay. So, but I can refresh somebody's recollection with it.
So I took these pages up and I said, "So Mr. Expert,
you testified that My guy said this was a fact that he relied upon in coming to
his opinion you remember that testimony Yes, I do. Do you stand by that? Yes,
that's your best recollection. Yes Let me see. Are you sure?
Do you remember everything he said about that? Well, no, did you read his report?
Yes Well, your honor may I approach? I'd like to show you this page from my
experts report. Do you see right there where he addressed this issue?
Yes, he didn't say in his report what you just represented to the jury,
he said, did he?
Well, no, at least not on that page. I said,
Well, is there some other page that you can point to? Here's his entire report.
That expert would not change his testimony. He stuck to that false statement.
His lawyer brought him back into that false statement.
And for the first time in my career, during closing argument,
I said to the jury, I don't know how to say this other than directly,
but that expert sat up there and lied to you.
I've never said it before, and I've never said it since. And in the,
we got the verdict in our favor. And when we interviewed the jurors,
they hated the guy. He had no credibility. I asked him, was calling him a liar too
much? They said, no, we'd wished you'd been stronger. It was really bad.
I just want to say a quick word about Sanchez and then put a pin in this
presentation. Sanchez is a California Supreme Court case that deals with what an
expert can testify to. Now,
can an expert base his or her opinion on hearsay?
Yes?
No.
No, they can base it on hearsay Okay, here's the issue in Sanchez Can they tell
the jury what the hearsay facts are that they relied upon?
Who thinks yes And that's a lawyer answer it depends Okay,
so here and it does depend if they are Percipient witnesses of those facts,
they can testify to them 'cause they're not testifying as an expert, they're
testifying as a recipient of goodness. This is a different difference with the
federal rules. Under the federal rules, which is what we were all taught in law
school, the expert can talk about the hearsay evidence and facts in enough detail to
explain the opinion.
In California, no. So I've had so many people come to me and say,
"I don't have a witness for this evidence, "but I can get my expert to say it."
You can't in California. So, little tip,
word to the wise.