Evidence, Experts and Hearsay in the Courtroom


A.    How to Maximize Use of Evidence Rules

1.       Is an expert needed?  This is governed by Wis. Stat. § 907.02:

Testimony by experts.  If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

As a litigator, you look at this rule in two different ways when you do an analysis to determine if you wish to use it:

(a)              To determine if an expert is needed:  Do you need to name an expert?  If you need an expert under this definition, you should find and name one.  This involves an analysis of whether or not the fact finder (usually the jury) will be aided by the specialized knowledge of an expert.  

a.      The expert typically explains the principles of the relevant discipline and gives an opinion supported by his or her expertise.  As with most evidence rules, this cuts both ways – you may want to name an expert, and may worry that you don’t really need one under the statute, or, you may not want (or be able to find) an expert, and worry that you really do need one under the statute.

b.      The decision of whether proffered expert testimony will be “helpful” to the jury is within the trial court’s discretion.  State v. Pittman, 174 Wis. 2d 255, 268, 496 N.W.2d 74 (1993).

(b)              To use as a weapon against the other side:  If the deadline for naming experts passes with no expert named by your opponent, of course you are happy and relieved.  However, go another step and analyze whether they in fact, need an expert under the statute. 

a.      Expert evidence is required when the analysis the fact finder must make needs knowledge beyond the general understanding of persons in the community.  See Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, 274 Wis. 2d 162, 682 N.W.2d 857.  

b.      If you can convince a judge that your opponent’s case requires an expert, you may be able to obtain a dismissal of your opponent’s case, particularly when your opponent has the burden of proof.  Or, conversely, sometimes you can prevent your opponent from having an expert.  

c.       Expert testimony is not required, however, when the issue is “within the realm of the ordinary experience of an average juror.”  Weiss v. United Fire and Cas. Co., 197 Wis. 2d 365, 372, 541 N.W.2d 753 (1995).

2.      Is this expert qualified?  The witness must be qualified by knowledge, skill, experience, training or education.  

(a)        The judge decides under Wis. Stat. § 901.04(1) whether the witness has sufficient expertise to testify about matters that require specialized knowledge.  Martindale v. Ripp, 2001 WI 113, ¶ 45, 246 Wis. 2d 67, 629 N.W.2d 698.

(b)    Do not miss the opportunity to voir dire an expert.  Voir dire allows you to undermine – and hopefully, disqualify – the expert before testimony is presented to the fact finder.

3.      Does the expert have an appropriate foundation to render an opinion?  Foundation is critical.  This, again, is important in order to be certain that your expert’s opinion is admissible, and also must be analyzed for blocking your opponent’s expert’s opinions.

(a)         “Once a party lays a threshold foundation for a witness to give an opinion under Rule 907.02, Stats., the burden shifts to the adverse party to show that the underlying bases for the witness’s are insufficient to support that opinion.”  State v. Whitaker, 167 Wis. 2d 247, 257-58, 481 N.W.2d 649 (Ct. App. 1992).

(b)        Is the opinion based on appropriate facts?

(c)         Does your expert understand the facts?  This is where making sure you don’t withhold facts, or sugarcoat facts, is very important.   

B.    Effective Motion Practice: Motions in Limine

1.       Can you bar the use of the expert?   

(a)        Yes if:

1.       he or she is not qualified,

2.      or lacks foundation,

3.      or does not speak to the requisite degree of probability,

4.      or misunderstood the facts

2.      If you cannot bar the expert, can you block his or her opinions?

(a)        It is not necessarily all or nothing.

(b)        Sometimes you can block one opinion.

(c)         Sometimes you can at the very least alert the judge to be aware of potential issues.

3.      If you cannot block his or her opinions, can you keep out facts that are critical to his opinions?

(a)        The blocking of a fact on which the expert relies heavily can alter or negate the expert’s opinion.

(b)        For example, if the expert has based his opinion regarding causation on the understanding that the item which struck the plaintiff weighed 3 pounds, evidence that it only weighed 5 ounces is damning.    

C.    How to Introduce Expert Testimony in Clear, Succinct Ways

1.       Expert evidence can make or break a lawsuit, but it can be boring, complicated, obscure and lack drama.  This makes sense because if the topic was easy, understandable, and something most people know about, there would be no need for an expert.  

2.      Impediments to making it interesting and holding juror interest:

(a)        Jurors have to rely on what they hear.

(b)        Jurors get information in an order not chosen by them, and sometimes not rational.

(c)         They get information at a speed that is too fast.

(d)        They have no time to study the information.

(e)        They usually are not allowed to ask questions.

(f)          Jurors cannot pay close attention for as long as usually required in a jury trial.

(g)        Attorneys use graphics that are hard to see.

(h)       Attorneys ask long, garbled, “legalese-laden” questions.

3.      Do not assume that you – or your expert – will teach the jurors an arcane area of engineering, or medicine in a few hours.  In highly technical areas, where experts are needed, jurors will not learn enough to make a decision on which of the testifying experts is correct.

(a)        They do not conduct peer review.

(b)        They do not learn enough to independently find the answer.

4.      What happens is the jury picks which expert it believes.

(a)        This is usually based on credibility.

(b)        Not usually based on accurateness or correctness.

5.      Credibility is the key:  Focus on making your expert more credible than your opponent’s expert.

6.      Keep it short.  Short, efficient, direct testimony for an expert should have three parts:

(a)        The expert’s qualifications:

1.       Only needed to make the conclusions credible.

2.      Be sure to cover past testimony (take away your opponent’s ability to make noise about this).

3.      Who she is, why she is there, what makes her so smart.

(b)        The expert’s conclusions:

1.       These are the critical parts.

2.      Lay out the conclusions first, cover the basis later.  You want to get the conclusions out while the jury is still paying attention.

3.      This is what your smart, qualified witness has decided after analyzing the facts.

(c)         The basis for the expert’s conclusions:

1.       Only needed to make the conclusions credible.

2.      Don’t bore the jury to death.

3.      But you need enough detail to convince them that this expert is credible.

4.      Your ultimate goal is not to teach them the subject matter, but to persuade the jury to believe your expert.  If they believe her, they will accept her conclusions.  

7.      Make it interesting and make it make sense.

(a)  Start by introducing your expert and giving a brief explanation of why she is testifying so that the jurors know what kind of information is coming and can process it more efficiently.

(b)  “Dr. Smith, you are a cardiologist?  And you are here today to help the jury understand why Diana died from the blockage in her heart.  Could you begin by…”

8.     Let the expert testify (not you).

(a)  Some attorneys persist in leading.

(b)  It does not work in direct examination and it especially does not work with your expert.  The jury will never believe your expert if your expert only speaks through your leading questions.

9.      Teach the Expert to Communicate with the Jury.

(a)  Look at the jury.

(b)  Use examples.

(c)   Speak clearly.

(d)  Make eye contact.

(e)  Get him out of his chair and moving around (drawing or writing or pointing to an exhibit).

(f)    You want him to appear as a teacher.

(g)  Spend time with him or her:  

1.       Does she understand what you want?

2.      Video her to illustrate bad (and good) points.

10.  Demonstrative Exhibits are Critical.

(a)        Be organized – don’t destroy the flow of the testimony by floundering around, setting up an easel, trying to find a piece of evidence, etc.

(b)        If the exhibit is confusing or cluttered or too small for the jury to see, it is better not to use it.

(c)         The best exhibits seem to be the ones the experts create on the spot.

1.       A badly drawn diagram or chart done on the spot may carry greater weight with the jury than a nicer one done in advance.

2.      They saw the thing made by the person who sponsored it.

(d)        What is the purpose of your exhibit?

1.       To transmit information.

a.      if so, then it has to be large, clear and readable

2.      To communicate an impression.

a.      a chart can show that the sales went up,

b.      but they won’t remember the dates and the amounts on that chart

D.   Tactics for Using Discovery Answers During Trial

1.       Two purposes:

(a)  To support and/or bolster your expert’s testimony (and your case).

(b)  To limit and/or discredit the opposing expert’s testimony (and the opposing case).

2.      Deposition Answers.

(a)        Every deposition, including discovery depositions, should be taken with trial in mind.  This is obvious with evidentiary depositions taken for trial, but is often overlooked in the typical discovery deposition.  

(b)        You can often use discovery deposition answers at trial:

Wis. Stat. § 804.07 Use of depositions in court proceedings.  (1) Use of depositions.  At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions: 
(a)  Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness.
(b)  The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or employee or a person designated under s. 804.05 (2) (e) or 804.06 (1) to testify on behalf of a public or private corporation, limited liability company, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose. 
(c)  1.  The deposition of a witness other than a medical expert, whether or not a party, may be used by any party for any purpose if the court finds any of the following:  a.  That the witness is dead.  b.  That the witness is at a greater distance than 30 miles from the place of trial or hearing, or is out of the state, and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition.  c.  That the witness is unable to attend or testify because of age, illness, infirmity or imprisonment.  d.  That the party offering the deposition has been unable to procure the attendance of the witness by subpoena.  e.  Upon application and notice, that exceptional circumstances exist that make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.  2.  The deposition of a medical expert may be used by any party for any purpose, without regard to the limitations otherwise imposed by this paragraph. 
(d)  If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts. 
(e)  Substitution of parties pursuant to s. 803.10 does not affect the right to use depositions previously taken; and when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former action may be used in the latter as if originally taken therefore. 

(c)         Of particular note:

1.       Deposition answers can be used any time by anyone for impeachment.

2.      The deposition of a party can be used by the adverse party for any purpose.

a.      Simply read it in

b.      Establish facts

c.       Use for Cross

d.      Read to your expert for comment

3.      Medical expert depositions can be used by any party for any purpose without regard to any limitations in the statute. This means that you can:

a.      offer all or part of it into evidence

b.      use it to impeach

c.       read it to the jury

d.      Use both the discovery deposition and the evidentiary deposition. Martin v. Richards, 176 Wis. 2d 339, 500 N.W.2d 691 (Ct. App. 1993).

e.      And, live testimony as well.

4.      The deposition of a non-medical expert witnesses, whether or not a party, may be used by any party for any purpose if the court finds:

a.      The witness is dead

b.      Or more than 30 miles away (as long as the party offering the deposition did not cause the witness to be gone)

c.       Or cannot attend because of age or illness or infirmity or imprisonment

d.      That the person proffering the deposition has tried to subpoena the witness but has failed to procure the attendance.

e.      There are other exceptions for extraordinary circumstances.

(d)        Plan every deposition as though it will be used at trial.  Some helpful tips:

1.       Mark everything in advance to make the deposition go smoothly.

2.      Phrase questions to include the jury.  For example, “Doctor, please circle on Exhibit 14 the area you are referring to and tell the jury what it is.”

3.      Use the eventual presence of the jury as a hammer.  For example, “Dr., do you expect the jury to believe …?”

3.      Interrogatory Answers

(a)        Admission is governed by 804.08(2):

(2) Scope: use at trial.  
(a)  Interrogatories may relate to any matters which can be inquired into under s. 804.01 (2), and the answers may be used to the extent permitted by chs. 901 to 911.
(b)  An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

(b)        You can, within the rules of evidence, show them to the jury, or put them on blow-ups or transparencies.

(c)         You can read them to the jury, or have a witness read them to the jury.

(d)        You can use them for cross-examination.

4.      Requests to Admit

(a)        The purpose of the admissions process is to expedite trial by establishing certain material facts as true thus narrowing the range of issues for trial.  Mucek v. Nationwide Communications, Inc., 2002 WI App 60, 252 Wis. 2d 426, 643 N.W.2d 98.

(b)        You can eliminate entire issues from trial.

(c)         Avoid spending time preparing for issues that can be exposed with requests to admit as red herrings.

(d)        You can establish ownership and legal relationships.

(e)        You can eliminate disputes about the admissibility of technical or scientific literature.

(f)          You can establish a foundation for admissibility of potentially-disputed evidence.

(g)        You can nail down principles related to the standard of care and causation.

(h)       You can provide the foundation for evidence of subsequent remedial measures or modifications by seeking admission as to control, knowledge or feasibility.

(i)          You can lay groundwork for evidentiary issues by establishing key facts you will need to argue the point (e.g., habit, feasibility, knowledge, subsequent remedial measure…).

(j)          An admission in a Request for Admissions has more force than an ordinary admission. An ordinary admission is simply evidence that can be contradicted.  An admission under Wis. Stat. § 804.11 is binding.  Unless the court permits a party to withdraw a § 804.11 admission, it conclusively establishes the matters it admits.