Section 1.31 Proof—Its Source and Failure

• Library: Sources of Proof (2014 Ed.)

It is in the context of looking at counsel’s proof, its source, and its failure that the package can be put together. In application of the legal rules of evidence to the facts before counsel, counsel must recognize that, though discoverable, there are those facts that the law, for a multitude of reasons, believes should not be presented to the jury. It is in this area that counsel must think of the ordering of the proof, how to display it so as to make it persuasive, and how to create a “belief” based on the evidence admitted of the propositions necessary to make the case or defense. Counsel is forced to think about the opponent’s case, theories, and proofs and counsel’s response. Is there a foundation for that testimony? Does the hypothetical question go beyond the admissible evidence? Is there a problem with an exclusionary rule?

How does counsel ascertain the sources of proof or the problems with them? Lawyers already know that facts are not necessarily evidence that the jury will ever be able to consider. Sometimes this is by design when, for example, criminal defense counsel refrains from calling as a witness the accused who will not make a good impression, who can be cross-examined concerning prior convictions, or who can be impeached with an otherwise inadmissible confession. Or the inadmissibility may be a rule of law, such as in the second collision or crashworthiness products liability case when the cause of the initial “accident” is often irrelevant.

Trial counsel must remember that only under the rarest of circumstances is the jury allowed to consider the “reality” of the event. It is up to trial counsel to create a “reality” based on admissible...