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EVIDENCE UPDATE

EVIDENCE UPDATE. “ Hearsay & Objections at Arbitration ” Jack Cannon THE HEALY LAW FIRM Peter Stavropoulos BRADY, CONNOLLY & MASUDA. HEARSAY.

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EVIDENCE UPDATE

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  1. EVIDENCE UPDATE “Hearsay & Objections at Arbitration” Jack Cannon THE HEALY LAW FIRM Peter Stavropoulos BRADY, CONNOLLY & MASUDA

  2. HEARSAY Rule 801(c) of the Illinois Rule of Evidence defines hearsay as “a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.”

  3. HEARSAY • The question is whether it’s offered for the truth of the matter asserted or whether it falls under a hearsay exception.

  4. HEARSAY Mary testifies at arbitration: “I heard John say that Tom ran the red light” • If offered by Mary to determine the issue of whether or not Tom ran the red light, it is hearsay because we cannot cross examine John • If it is offered by Mary to establish that John was awake, than it is not hearsay because we can cross examine Mary as to whether she actually heard John speak

  5. HEARSAY • The decision to admit or exclude evidence is left to the sound discretion of the trial judge

  6. HEARSAY Non-Hearsay Under 801(d) • Admission by a party opponent • Person authorized by the party

  7. HEARSAY • Section 12 report is not an admission by a party opponent. • Nollau Nurseries (1965) – Illinois Supreme Court says admissible as agent • Taylor (1994) – Not admissible. Hired medical expert is not an agent per se • Basis – Hiring party may have influence, but not control

  8. HEARSAY • Greaney v. Industrial Comm’n • Numerous cases that have held that a party’s independent medical expert is not an agent per se

  9. Rule 803 Hearsay Exceptions • There are 24 hearsay exceptions • 1. Reserved • 2. Excited Utterance • 3. Then Existing Mental, Emotional, or Physical Condition • 4. Statements for Purposes of Medical Diagnosis or Treatment • 5. Recorded Recollection • 6. Records of Regularly Conducted Activity • 7. Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph 6 • 8. Public Records and Reports • 9. Records of Vital Statistics • 10. Absence of Public Record or Entry • 11. Records of Religious Organizations • 12. Marriage, Baptismal, and Similar Certificates

  10. Rule 803 Hearsay Exceptions • There are 24 hearsay exceptions • 13. Family Records • 14. Records of Documents Affecting an Interest in Property • 15. Statements in Documents Affecting an Interest in Property • 16. Statements in Ancient Documents • 17. Market Reports, Commercial Publications • 18. Reserved. [Learned Treatises] • 19. Reputation Concerning Personal or Family History • 20. Reputation Concerning Boundaries or General History • 21. Reputation as to Character • 22. Judgment of Previous Conviction • 23. Judgment as to Personal, Family or General History, or Boundaries • 24. Receipt or Paid Bill

  11. Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT • Rule 803(4) of the Illinois Rules of Evidence codifies a hearsay exception: • Statements made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment but subject to Rule 703, not including statements made to a health care provider consulted solely for the purpose of preparing for litigation or obtaining testimony for trial….

  12. Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT • Statements for Purposes of Medical Diagnosis or Treatment • Statements made for purposes of medical diagnoses or treatment including description of the cause of symptom, pain or sensations • Statements of causation in treatment records – admissible? • Petitioner’s position – no exception created within rule – therefore admissible

  13. Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT • The respondents’ counter argument is that a statement of causation has nothing to do with treatment – not usually a Statement for Purposes of Medical Diagnosis or Treatment • The Court in Fencl-Tufo allowed records in over a hearsay objection because they were not created in anticipation of litigation

  14. Rule 803(4)STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT • Respondents’ argue that causation opinions in the treating records are only there in anticipation of litigation • Therefore, these opinions make the records not inherently trustworthy and inadmissible hearsay. Fencl-Tufo Chevrolet, Inc., v. Industrial Comm’n, 523 N.E.2d 926, 929-30 (1st Dist., 1988)

  15. Recorded Recollection • Hearsay exception 803(5) • Employer accident reports would fall under this exception, as long as a foundation is laid by the individual who made the report • Only by author

  16. 803(6) Records of Regularly Conducted Activity • Commonly referred to as the “Business Record” exception • The rule is premised on the concept of routineness • Need not be author, can be custodian or another qualified witness • Supreme Court Rule 236

  17. 803(7) Absence of Entry in Records • The absence of entry in records kept in accordance with the provision of paragraph(6) • e.g. attendance records, wage statements

  18. Experts Rule 703 • An expert may base his or her opinion on facts or data made known to him or her at or before the trial • The facts or data need not be admissible in evidence in order for the opinion to be admitted. Wilson v. Clark • Regularly relied upon by professionals in the field

  19. Hypothetical Questions • Hypothetical questions are no longer required to elicit the experts opinion. • Rule 705: The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise • The expert may in any event be required to disclose the underlying facts or data on cross examination

  20. Doctor’s Depositions • Submitting a doctor’s report at the time of his deposition is hearsay and improper • Self-serving and improper bolstering

  21. §13:10 Photographs • Witness has personal knowledge • Accurate depiction of the subject matter • Does it assist the finder of fact?

  22. §15:90 Charts, Diagrams, Graphs or Maps • Layperson may use or draw a map to describe where an incident occurred • Blackboards may be used to aid a witness in testifying about an occurrence

  23. Objections: The most common objections made at the Illinois Workers’ Compensation Commission

  24. Screen from an actual video game, Objection!

  25. MOST COMMON OBJECTIONS TO QUESTIONS

  26. LEADING • Defined – A question that suggests the desired answer to the witness

  27. LEADING • Improper on direct examination with exceptions: • Permissible for preliminary questions • Permissible for child witnesses • Permissible for adverse or hostile witnesses • Permissible for questions regarding undisputed issues • To lay a foundation • Can be waived • Proper on cross-examination and re-direct examination

  28. FORM OF THE QUESTION/VAGUE • Usually asserted to make a clear record • Objection raised in response to: • Compound question • Confusing question • Question asking the witness to speculate

  29. CALLS FOR SPECULATION • Questions asking the witness to speculate are improper • Basis – Cases must be decided on facts, not guesswork

  30. CALLS FOR SPECULATION • Lay-witnesses are allowed to give estimates on certain issues • Examples • Distance • Time • Speed • Age

  31. CALLS FOR SPECULATION • Expert testimony treated differently • Greater latitude given and questions asking for speculation can be permitted • Basis – An expert’s speculation is based on her expertise and experience

  32. ASKED AND ANSWERED • Improper because • Wastes time of the court • Places undue emphasis on answers • Applies to both direct and cross examination

  33. IRRELEVANT • Relevant defined: • Evidence that has, “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence.” FRE 401 • Definition defined: • Is the evidence a fact that helps the trier of fact decide the case?

  34. IRRELEVANT • Is the fact “of consequence?” • Does the evidence help the arbitrator make a decision relative to the case?

  35. IRRELEVANT • Relevant evidence can still be excluded at the court’s discretion if probative value is substantially outweighed by considerations such as: • Unfair prejudice • Confusion • Delay • Waste of time

  36. BEYOND THE SCOPE • Cross-examination and re-direct examinations are limited to • Subject matter of direct • Credibility of witness • Rebuttal testimony only proper when it contradicts substantial evidence previously presented by opposing counsel

  37. CALLS FOR A HEARSAY ANSWER • Counsel anticipates a hearsay answer • Question prompts witness to testify about an out-of-court statement to prove the truth of the matter asserted

  38. MOST COMMON OBJECTIONS TO ANSWERS

  39. HEARSAY • Answer includes testimony regarding an out-of-court statement being offered to prove the truth of the matter asserted • Does not fall under one of the exceptions

  40. NARRATIVE • Why is it objectionable? • Allows a witness to provide inadmissible evidence without giving opposing counsel a chance to make a timely objection

  41. NARRATIVE • Court has discretion as to how much latitude to give witness • Opposing counsel may waive objection for strategic reasons

  42. UNRESPONSIVE • Defined: • An answer that does not directly respond to the question • Improper testimony if the answer goes beyond what is necessary to respond to the question • Only the party calling the witness can make the objection

  43. OPINION • Only proper when: • Witness has been properly qualified as an expert • Area is one in which specialized knowledge will assist the trier of fact

  44. OPINION • Lay-witnesses can testify regarding an opinion only when: • Based on witness’ perception of an event • Is helpful to the trier of fact in understanding the facts

  45. MOST COMMON OBJECTIONS TO EXHIBITS

  46. HEARSAY • The basis for excluding evidence under the hearsay rule is that an opportunity to ascertain the veracity of the statement is absent • As discussed, causation opinions in treating records are commonly objected to as hearsay statements made in anticipation of litigation

  47. IRRELEVANT • Is the evidence a fact of consequence that helps the trier of fact render a decision on an issue?

  48. FOUNDATION • Proper foundation must be established to survive an objection • Every exhibit must meet three requirements before it can be admitted into evidence • Qualifying witness must be competent • Exhibit must be relevant • Exhibit must be authenticated

  49. FOUNDATION • Authentication: • Establishing that the exhibit is what it purports to be

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