Northern Virginia Personal Injury Lawyer Blog : Northern Virginia Injury Lawyer & Attorney : Brien Roche Law Firm : Medical Malpractice, Product Liability, Car Accidents : Washington DC, North Virginia, Maryland

The federal court system is quite different from the state court system. You will recall from what was said previously that the federal courts are courts of limited jurisdiction. On the other hand, the state courts are courts of general jurisdiction, or, to put it another way, virtually of unlimited jurisdiction. The term jurisdiction in this sense refers to subject matter jurisdiction—the types of claims that the court has the authority to hear.

There are some claims arising under federal law that can be asserted only in federal court, but the general rule is that virtually any type of civil claim (under state or federal law) can be brought in the state court system. That is not true of the federal court system. In order to bring a civil claim in the federal court, there are certain requirements that have to be met. There are two ways to bring a civil claim into federal court. You can bring a diversity claim or you can bring a claim involving a federal question.
 

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An expert witness is simply a witness who has expertise in a particular area, whose testimony the court has determined may assist the jury in understanding the issues of the case and therefore fairly deciding the issues. Expert testimony has been abused over the years in that it is sometimes presented on issues that do not require expert testimony. The rule of thumb for the admissibility of expert testimony is that it must relate to a subject matter that the jury might have difficulty understanding without expert testimony. The expert must assist the jury in understanding the issue. In a medical malpractice case in which there is an issue as to whether the surgery should have been conducted one way or another, the jury needs to hear expert testimony from medical doctors as to how the surgery should have been conducted. The jury does not have the expertise to decide that issue on its own, and therefore must hear from medical experts who will educate the jurors as to what the medical issues are and how the surgery either should have or should not have been conducted. It is then up to the jury to decide which of those experts they believe and to render a verdict.

Certain types of expert testimony have been ruled inadmissible by some courts. For instance, in some jurisdictions, expert testimony of how a particular automobile accident may have occurred is considered to be inadmissible because that is normally considered to be something that a jury can understand and determine on its own, without the aid of expert testimony.

There is a tendency within the legal profession to offer expert testimony on as many issues as possible in order to bolster the claim or defense being asserted. Recently, many courts have taken a somewhat dim view of that tendency and have endeavored to restrict the admissibility of expert testimony. The reasoning is that in many of these types of cases, the jury has sufficient expertise or common sense to understand and resolve the issues.
 

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A more common objection, however, is hearsay. The hearsay objection may arise not only in regard to documentary evidence, but also in regard to testimonial evidence (the testimony of witnesses). Generally defined, hearsay is an out-of-court statement that is offered for its truth value.

Example: The plaintiff makes a statement at the scene of an accident saying “I am at fault.” If it were to be offered as truth in court, would it be considered hearsay? Looking at the definition of hearsay as being an out-of-court statement that is offered for its truth value, the statement would be hearsay. The statement was made out of court (it was made at the accident scene) and it is being offered for its truth value (to prove that the plaintiff was at fault at the time of the accident because he said so).

The general purpose of the hearsay rule is to exclude evidence that may not be reliable. Another reason for the exclusion of hearsay evidence is that its presentation denies the other party the right to cross examine the person who is making the statement. If, at the scene of an accident, a police officer makes a statement to the effect that the plaintiff was at fault for the accident, that statement is hearsay if offered as evidence in court because it was stated out of court and is offered for its truth value. If the police officer does not testify at trial, then obviously he or she cannot be cross examined about that statement. It would be unfair to allow either party to repeat that statement in court because the witness making the statement is not present to be cross examined about it. If, however, the police officer does testify at trial, then it is possible that, under certain circumstances, he or she may be confronted with that prior statement and asked to explain it.

As indicated above, hearsay evidence is not generally admissible, but there are a number of exceptions to the hearsay rule. For example, when the plaintiff stated that he was at fault, the statement was hearsay. However, the court may still admit it on the grounds of it being an exception to the hearsay rule because it is an admission of a party to this particular action. The exceptions to the hearsay rule are very extensive—so extensive that some people might say that the rule itself now has no meaning.
 

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Documents and physical objects are frequently offered as exhibits or as evidence at trial. The first inquiry in regard to any document or other physical object is whether it is authentic. A document or object is authentic if it has been proven to be what it appears to be. If a will is presented to the court as an exhibit and is offered as the will of John Jones, then before that document can be entered into as evidence (shown to the jury), a witness will need to confirm that it is the will of John Jones and that the document bears his signature. That type of testimony establishes the authenticity of the document—simply that it is what it appears to be.

From a common sense point of view, lay people looking at that may say that it has the name at the top indicating that it is the Last Will and Testament of John Jones, it bears the signature of John Jones, and the signature appears to be authentic. Based upon all of that, common sense would suggest that the document is what it appears to be—the Last Will and Testament of John Jones. The court, however, normally requires more than simply the appearance of validity. Typically, a witness will need to testify that the document is in fact the Last Will and Testament of John Jones and the witness may have to testify as to how he or she knows that is so.

Once the authenticity of a document has been established, there may be other objections that could be made regarding that document. Any objections as to relevance and privilege will have to be dealt with.
 

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Evidence, in general terms, can fall into two broad categories. There is direct evidence and circumstantial evidence. Direct evidence consists of witnesses testifying to things within their personal knowledge or may consist of documents, pictures, or other things that directly prove a particular thing. For instance, a person testifying that “I saw the wolf attack the chicken coop” would be direct evidence.

Circumstantial evidence may be thought of as indirect evidence, or evidence that leads to a particular conclusion although there is no direct testimony, document, or thing that proves that event. Going back to the example of the wolf attacking the chicken coop—if no one actually saw the attack happen, but you see the wolf’s footprints around the chicken coop and the dead chickens, then you may conclude that the wolf is the one who killed the chickens, even though no one actually saw it happen.

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The principle criteria of admissibility is that the evidence must be relevant. Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case. If the issue in the case is whether you ran a red light, evidence that shows that the traffic light was not properly functioning at the time of the accident is relevant and typically would be admissible. Likewise, evidence of the cycle of nearby traffic lights and your speed as you traveled from a nearby intersection to the intersection in question may all be relevant to whether or not the light was red when you entered the intersection. All of those facts tend to prove or disprove whether you ran that red light and therefore are relevant.

Relevance means that the evidence that is being offered tends to prove or disprove an issue in the case.

Some evidence may be relevant but it is so highly prejudicial that the court determines that it should not be admitted. In tort claims, most courts have determined that evidence of insurance is not admissible because it is too prejudicial. If a jury knew that a defendant was insured, then jury verdicts may be higher simply because of that. Accordingly, most courts have determined that evidence of a defendant being insured is not admissible even though it may be relevant.
 

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Within the law of evidence, there are certain presumptions that may arise on occasion. A presumption is a recognition that if one particular fact is proven, then a second fact is inferred or assumed from the first.

Example: If I prove that a child is under the age of seven, then a presumption arises that the child is incapable of negligence. That is, having proved first that the child was under seven, the court then recognizes a presumption that the child cannot be guilty of negligence.

A presumption is a recognition that if one particular fact is proven, then a second fact is assumed.

This presumption may be unrebuttable. A different presumption may exist as to a child between the ages of 7 and 14. This presumption is considered to be a rebuttable presumption. If it can be shown that the child is of sufficient sophistication, intelligence, and experience that he or she can understand the nature of his or her acts and is capable of committing a negligent act, then the presumption may be rebutted.

There are a number of other presumptions that exist in the law. A person accused of a crime is presumed to be innocent. That presumption must be overcome by the government by presenting evidence of criminal behavior. If a person holds the power of attorney for another individual and profits from that relationship, then there is a presumption that his or her profiting from that relationship is fraudulent. The basis for that presumption is that, as the attorney in fact or holder of a power of attorney for an individual, a person has a great deal of power over that individual and can manipulate the assets or activities of that individual.

A presumption of death from an absence of seven years may also arise. If a person disappears and is not seen or heard from for a period of seven years, then he or she is presumed dead.

Another presumption that is frequently referred to is the presumption of knowledge of the law. As a citizen of this country, you are presumed to know the law. Obviously, no one can know all of the laws. However, common sense should tell you that if you are about to engage in behavior that is questionable, then you may need to check to see whether that behavior is illegal. If you then engage in that behavior, you cannot raise a defense that you did not know the law, because you are presumed to know the law.
 

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As previously stated, the plaintiff has the burden of proof in a civil case. There are different burdens that apply in different types of cases. Generally, in a civil case, the burden of proof is what is referred to as the preponderance of the evidence—the greater weight of the evidence. Recall the example of tipping the scales by a featherweight. If the plaintiff tips those scales by so much as a featherweight, then his or her burden of proof based upon a preponderance of the evidence has been met.

In some civil claims, however, the burden of proof may be somewhat higher. In particular, regarding fraud claims, the burden of proof is generally considered to be what is called clear and convincing evidence. That burden of proof or standard of proof is higher than simply a preponderance of the evidence. If you were to think of a preponderance of the evidence as being something more than fifty percent, then clear and convincing evidence would be a level of proof in the range of seventy-five to perhaps as high as ninety percent.

Another term that is used in criminal cases is that of proof beyond a reasonable doubt. That is a level of proof that even goes beyond clear and convincing evidence, and probably is more in the range of ninety percent.

It is probably misleading to try to ascribe numerical figures to any of these standards of proof, since they really are not susceptible to numerical classification. These numerical classifications are merely designed to provide some illustration of the different levels of burden of proof.
 

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In the course of litigation, it is not uncommon for one party to raise an objection based upon privilege. There are several different privileges that exist within the law. The husband/wife privilege precludes either spouse from testifying against the other based upon what they learned from the other spouse during the course of the marriage. If a husband tells his wife that he has just murdered the next door neighbor, then the wife may be precluded from repeating that statement in a court of law.

One of the privileges that is at the foundation of our legal system is the attorney/client privilege. When a client retains an attorney, anything that client says to the attorney is deemed to be privileged and cannot be repeated by the attorney without the consent of the client, unless the communication involves proposed criminal activity. For instance, if a client tells his attorney that he is about to blow up a building, the attorney—under the law of most states—must advise him of the possible legal consequences, urge him not to commit the crime, and advise him that the attorney must reveal his intention to the authorities unless he abandons the proposed criminal activity. If the client confesses to his attorney that he blew up a building, the attorney is bound by the attorney/client privilege not to disclose that information.

In the case of the attorney/client privilege, the privilege belongs to the client, not to the attorney. If the client wishes to divulge those communications, then he or she may do so. The attorney, however, may not divulge those communications without the consent of the client, unless the client has already divulged them on his or her own. Some states also recognize other types of privileges, wherein communications made by one person to another may not be divulged without the consent of the person to whom the privilege belongs. (Such privilege exists in regard to the physician/patient relationship and the priest/penitent relationship.)

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