Handling Evidentiary Issues

• Author: Jim Wren
• Pages: 383-398

345

13. Evidentiary

Issues

Chapter 13

Handling Evidentiary Issues

I. Anticipating Evidentiary Issues for Damages

§13:01 Prepare to Make the Argument Concisely

§13:02 Five Steps for a Legal Authority Notebook

II. Evidence of Plaintiff’s Reduced Life Expectancy

§13:10 Factual Responses to Reduced Life Expectancy

§13:11 Legal Responses to Reduced Life Expectancy Evidence

III. Evidence of Tax Effects

§13:20 Common Defense Arguments on Tax Effects

§13:21 Dealing With the Norfolk & Western Case

§13:22 Responding to Tax Effects Arguments in Physical Injury Cases

§13:23 Responding to Tax Effects Arguments in Other Cases

§13:24 Plaintiffs’ Claims for Adverse Tax Consequences

IV. Per Diem Evidence and Arguments

§13:30 Use of Per Diem Arguments

§13:31 Jurisdictions Allowing Per Diem Arguments

V. Forms & Samples

13-1 Bench Brief

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§13:01 Proving Damages to the Jury

346

13. Evidentiary

Issues

I. Anticipating Evidentiary Issues for Damages

§13:01 Prepare to Make the Argument Concisely

Some evidentiary issues pertaining to damages arise often enough to be relatively pre-

dictable. This chapter briefly details three such issues.

I also recommend that these evidentiary points be presented succinctly.

Many trial judges, particularly state court trial judges, operate with little or no help from

briefing clerks. Even though federal court trial judges do have briefing clerks, the judges are

still often faced with making evidentiary decisions during trial with little time to study the

arguments and case law cited by the litigants.

As a result, in a close call during the midst of trial, the decision often goes in favor of the

attorney who can present the argument most concisely, logically, and with the clearest appli-

cable authority. In the heat of trial, with the jury sitting in the box, long legal memoranda on

evidentiary issues are usually useless or even counterproductive. Brevity wins.

§13:02 Five Steps for a Legal Authority Notebook

Well before trial, as evidentiary issues occur to you, start compiling Bench Briefs (i.e.,

short legal memoranda for presentation to the court as needed during trial) and keep them in

a Legal Authority Notebook. This will bring a level of organization allowing you to power

past most evidentiary issues in trial.

• Step 1: As part of your trial notebook system, set aside one notebook labeled

“Legal Authority.”

• Step 2: Subdivide the Legal Authority notebook into three sections with an Index

in the front. The three sections are:

• Bench Briefs.

• Supporting Authority.

• Legal Authority Received.

The middle section, Supporting Authority, is where you will place a copy of

each case or other authority cited in any of your Bench Briefs, with key portions

already highlighted.

The last section, Legal Authority Received, is simply a blank section in which to place

any legal briefs, case law, or other authority provided by your opponent during trial.

• Step 3: The first section, Bench Briefs, contains the key to your method. Include a

prepared Bench Brief on each evidentiary issue that you can foresee arising during

trial, separated by numbered tabs. Each Bench Brief should address only one key

question and be only a single page in length. There are two reasons for limiting

each Bench Brief to exactly one page only:

• This forces you to be succinct, setting forth your very best argument with the

very best authority and nothing more.

• These Bench Briefs actually get read and relied upon in the midst of trial.

When you hand the judge a single-page Bench Brief, with a clearly stated issue

and answer, typically citing and briefly quoting from only one to three cases,

you are implicitly communicating confidence in the clarity and simplicity of

your position. These Bench Briefs work.

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