I love the rules of evidence. Early on one of my favorite judges told me that few lawyers know the rules of evidence and even fewer know how to use them. Cases are won and lost based on an attorneys knowledge of how to get in their proof while keeping their opponents out.

I’ve found this to be true in my practice. Learning and using the rules of evidence has been one of the most enjoyable and rewarding aspects of trial litigation for me. Theres so much satisfaction when you’re able to keep evidence out or getting evidence in.

Finally finished a miserable trial that took 40 days over 12 months. I fought like a dog to get in my proof but fell short several times

Opposing party had an awful hired gun expert. Losing the battle to exclude his testimony forced me to find a way to use him to my advantage

Expert was paid to not only testify, but to sit in on every day of the trial. Astounding waste of money by opposing party. Expert also had to turn over his file case notes etc and that’s when I realized how much of his opinion was being fed to him directly by opposing party.

That’s not unheard of, but in this case it was extreme. Opposing counsel gave him all 340 potential exhibits that I produced pretrial, along with her notes regarding each exhibit and what he should have to say about it.

The expert was a “mental health professional” and continued “treating” opposing party and one of the parties children throughout the trial. Because treatment was ongoing, he testified he read and reviewed each and every doc/ all info provided to him before and during trial

And that’s exactly how I got in every single piece of evidence that had previously been excluded. The “expert” had reviewed it all and used it to form his “opinion”

Maybe this is common knowledge for those who routinely handle complex litigation. But, for me, it was an incredible victory.

A few examples of what came in through the opposing expert— police reports, photos I couldn’t properly authenticate, military hospital records etc etc

Things I should never have been able to get in were admitted through this expert.

I say all this because losing the motion in limine to exclude his testimony was crushing. I couldn’t see it as anything other than I had been defeated and failed my client. It really felt personal.

Over and over and over again I handed up exhibits previously marked for identification only. Each time he testified that he recognized the exhibit as something opposing party provided for him to review. I worked through a stack of ID only exhibits that I thought were a lost cause

So, don’t give up, be relentless about keeping an open mind, and remain teachable. I almost missed an opportunity because I was too caught up in the loss to see it as anything else.