EVIDENCE Copyright February 2002 - State Bar of California

EVIDENCE Copyright February 2002 - State Bar of California

Phil sued Dirk, a barber, seeking damages for personal injuries resulting from a hair treatment Dirk performed on Phil. The complaint alleged that most of Phil's hair fell out as a result of the treatment. At a jury trial, the following occurred: A. Phil's attorney called Wit to testify that the type of hair loss suffered by Phil was abnormal. Before Wit could testify, the judge stated that he had been a trained barber prior to going to law school. He took judicial notice that this type of hair loss was not normal and instructed the jury accordingly. B. Phil testified that, right after he discovered his hair loss, he called Dirk and told Dirk what had happened. Phil testified that Dirk then said: (1) "I knew I put too many chemicals in the solution I used on you, so won't you take $1,000 in settlement?" (2) "I fixed the solution and now have it corrected." (3) "Don't worry because Insco, my insurance company, told me that it will take care of everything." C. Phil produced a letter at trial addressed to him bearing the signature "Dirk." The letter states that Dirk used an improper solution containing too many chemicals on Phil for his hair treatment. P testified that he received this letter through the mail about a week after the incident at the barbershop. The court admitted the letter into evidence. D. In his defense, Dirk called Chemist, who testified as an expert witness that he applied to his own hair the same solution that had been used on Phil and that he suffered no loss of hair. Assume that, in each instance all appropriate objections were made. Did the court err in: 1. Taking judicial notice and instructing the jury on hair loss? Discuss. 2. Admitting Phil's testimony regarding Dirk's statements? Discuss. 3. Admitting the letter produced by Phil? Discuss 4. Admitting Chemist's testimony? Discuss

Scott Pearce's Master Essay Method - Evidence - February 2002

EVIDENCE Copyright February 2002 - Scott F. Pearce, Esq.

Outline

I. Judicial Notice

A. Rule of Judicial Notice B. The court had expert knowledge. C. Conclusion: The court erred.

II. Paul's Testimony About Defendant's Statement

A. "I knew I put too many chemicals...take $1,000 settlement." 1. Relevance - Proves Plaintiffs Case 2. Objection #1: Hearsay 3. Objection #2: Offer to Compromise 4. Conclusion: Inadmissible in federal court, severance OK in California.

B. "I fixed the solution and now have it corrected." 1. Relevance: Supports Plaintiff 2. Objection: #1 Subsequent Remedial Measure 3. Objection: #2 Hearsay 4. Conclusion: Error to admit

C. "Don't worry because Insco...will take care of everything." 1. Relevance: Supports Plaintiff 2. Objection: #1 Insurance evidence excluded on public policy grounds 3. Objection: #2 Hearsay 4. Conclusion: Error to admit

III. Letter

A. Relevance: Supports Plaintiff B. Objection #1: Authentication / Best Evidence C. Objection #2: Hearsay D. Conclusion: Properly Admitted

IV. Expert testimony of Chemist

A. Relevance: Supports Defendant B. Objection: Improper Expert Testimony C. Conclusion: Error to Admit

Scott Pearce's Master Essay Method - Evidence - February 2002

EVIDENCE Copyright February 2002 - Scott F. Pearce, Esq.

Answer

I. Judicial Notice Phil's attorney called Wit to testify that Phil's hair loss was abnormal. Wit did not take the stand because the judge took judicial notice that Phil's hair loss was abnormal and so instructed the jury.

A. Rule of Judicial Notice The court may take judicial notice of commonly-known facts. When it does so, the fact in question is considered to be resolved conclusively.

B. The Court had Expert Knowledge In this case, the judge had been a trained barber before going to law school. Even assuming that the judge possessed sufficient training and expertise to qualify as an expert witness, this act of judicial notice would be improper. Judicial notice is intended to streamline testimony by avoiding the litigation of facts that cannot reasonably be disputed.

C. Conclusion The court erred in taking judicial notice and instructing the jury on hair loss. It is Phil's burden to prove that his hair loss was abnormal.

II. Paul's Testimony About Defendant's Statement Paul testified that he called Dirk right after he discovered his hair loss. Paul testifies to three different statements allegedly made by Dirk during this conversation. Each will be examined separately.

A. "I knew I put too many chemicals...take $1,000 settlement." 1. Relevance - Proves Plaintiffs Case

The first part of the statement is an admission of liability by the defendant. If admitted into evidence it would prove the liability part of plaintiff's case.

Scott Pearce's Master Essay Method - Evidence - February 2002

2. Objection #1: Hearsay

Dirk's statement was made out of court, and it is being offered to prove the truth of the matter asserted. Although the statement fits the definition of hearsay it is an admission by a party. Admissions are deemed to be non-hearsay by the Federal Rules of Evidence. Had the admission not been coupled with an offer to compromise, it would be admissible in federal court. California law would allow the court to sever the admission from the offer to compromise and admit it.

3. Objection #2: Offer to Compromise

The second part of the defendant's first statement is an offer to compromise. Public policy prohibits admission into evidence of offers to compromise because of the importance of encouraging nonadversarial dispute resolution. Federal Rule 408 does not permit the court to sever an admission from an offer to compromise for the same public policy reasons.

4. Conclusion

In federal court it would be error to admit any of this testimony. In California, the court could admit the admission, but should not have admitted the offer to compromise.

B. "I fixed the solution and now have it corrected."

1. Relevance: Supports Plaintiff

The defendant's second statement is logically relevant because it is evidence that Dirk knew the hair treatment he used on Phil was wrong. This evidence helps Phil establish the defendant's liability for plaintiff's hair loss. Public policy renders the statement legally irrelevant, as discussed below.

2. Objection: #1 Subsequent Remedial Measure

Defendant's act of fixing the solution is a subsequent remedial measure because it is an act taken in response to prevent future harm. Public policy prohibits the admission into evidence of subsequent remedial measures in order to encourage parties to repair any possibly dangerous conditions without fear of the repairs being used to establish liability for previous accidents.

3. Objection #2 Hearsay

Like his first statement, this statement is hearsay. Unless the statement is interpreted as an admission, no exclusions or exceptions appear to apply.

4. Conclusion

The court erred in admitting Dirk's second statement.

Scott Pearce's Master Essay Method - Evidence - February 2002

C. "Don't worry because Insco...will take care of everything."

1. Relevance: Supports Plaintiff

Dirk's last statement could be interpreted as a tacit admission of liability. This would be logically relevant to establishing Dirk's legal responsibility for Dirk's personal injuries. Public policy renders the statement legally irrelevant, as discussed below.

2. Objection: #1 Insurance evidence excluded on public policy grounds

Public policy prohibits the admission of evidence about insurance coverage because of concerns a jury would be more likely to impose liability on a party that is covered by insurance. Sometimes this sort of evidence is admitted to show proof of ownership and control, but that issue is not present in this case.

3. Objection #2 Hearsay

This statement, like the previous two, was made out of court. No exceptions to the hearsay rule are present to render the statement admissible.

4. Conclusion

Defendant's third statement should have been excluded for public policy reasons, and because it is hearsay.

III. Letter

A. Relevance

Phil produced a letter he received in the mail about a week after the incident. The letter is signed "Dirk" and states that Dirk used an improper chemical solution on Phil's hair. This letter would strongly support Phil's liability case against Dirk.

B. Objection #1: Authentication / Best Evidence

It appears Phil brought the original letter to court, which satisfies the best evidence rule. Phil has testified he received the letter in the mail. That is good enough to satisfy Phil's duty to authenticate the document. The Federal Rules of Evidence include a best evidence rule that is more strict than its California counterpart. The original letter offered by Phil satisfies the best evidence rule in both the federal courts and under California state law.

Scott Pearce's Master Essay Method - Evidence - February 2002

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