PLAINTIFF S PERSONAL INJURY

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1 PLAINTIFF S PERSONAL INJURY Program Materials 2013 CO-SPONSORS: General Practice & Trial Law Section, State Bar of Georgia Institute of Continuing Legal Education in Georgia

2 Copyright 2013 by the Institute of Continuing Legal Education in Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE. The Institute of Continuing Legal Education in Georgia s publications are intended to provide current and accurate information on designated subject matter. They are offered as an aid to maintaining professional competence with the understanding that the publisher is not rendering legal, accounting or other professional advice. Attorneys using ICLE publications should also research original and current sources of authority. ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily reflect the opinions of the Institute of Continuing Legal Education in Georgia, its officers or employees. The Institute of Continuing Legal Education in Georgia (ICLE) is the not-for-profit educational service of the State Bar of Georgia and is a consortium of the Bar and the Law Schools of the Universities of Georgia, Emory, Mercer, Georgia State and John Marshall. It is fully self-supporting and receives all of its income from tuition charges and sale of publications. ICLE exists solely to serve the educational needs of practicing lawyers with any surplus revenues being devoted entirely to the improvement of CLE products and services. Printed by Institute of Continuing Legal Education in Georgia P.O. Box 1885 Athens, Georgia Publication No

3 iii FOREWORD The Institute is especially grateful to our outstanding Seminar Chairperson, Douglas C. Dumont, for providing the necessary leadership, organization and supervision that has brought this program into a reality. Indeed a debt of gratitude is particularly due our articulate and knowledgeable faculty without whose untiring efforts and dedication in the preparation of papers and in appearing on the program as speakers, this program would not have been possible. Their names are listed on the program at page iv of this book and their contributions to the success of this seminar are immeasurable. I would be remiss if I did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us hope your attendance will be most beneficial as well as enjoyable. Your comments and suggestions are always welcome. March, 2013 Lawrence F. Jones Executive Director Institute of Continuing Legal Education in Georgia

4 iv PROGRAM Presiding: Douglas C. Dumont, Program Chair, Warshauer Law Group, P.C., Atlanta 8:15 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A jacket or sweater is recommended.) 8:55 INTRODUCTION AND PROGRAM OVERVIEW Douglas C. Dumont 9:00 DEMONSTRATING DEMONSTRATIVE EVIDENCE Steve R. Thornton, Thornton Law Firm, P.C., Atlanta 9:30 CAN I SUE THE GOVERNMENT: ISSUE SPOTTING POTENTIAL CLAIMS AGAINST GEORGIA MUNICIPALITIES AND COUNTIES Steven Salcedo, Law Offices of Steven Salcedo, LLC, Decatur 10:00 WORKER S COMP AND COORDINATING THIRD PARTY CLAIMS Laura Reis, Reis Law, LLC, Atlanta 10:30 BREAK 10:45 THE NEW GEORGIA EVIDENCE CODE Parag Shah, The Shah Law Firm, Atlanta 1:00 WAYS TO MAXIMIZE YOUR RECOVERY BAD FAITH AND ABUSIVE LITIGATION Charlotte K. Perrell, Perrell & Wright, LLC, Atlanta 1:35 CASE SELECTION A STOOL MUST HAVE 3 LEGS TO STAND Douglas C. Dumont 2:10 HOW TO STRIKE A BAD-ASS JURY Jenny E. Jensen, Jones Jensen & Harris, Norcross 2:45 BREAK 3:00 5 WAYS PLAINTIFFS TORPEDO THEIR CASE Douglas K. Burrell, Drew, Eckl & Farnham, Atlanta 3:30 REPRESENTING VICTIMS OF CRIMINAL ACTS Andy T. Rogers, Deitch & Rogers, LLC, Atlanta 4:00 THIRD PARTY CLAIMS Everyone WINS! Michael J. Warshauer, Warshauer Law Group, P.C., Atlanta 4:30 ADJOURN 11:20 HOW TO BE ETHICAL AND AVOID MALPRACTICE David N. Lefkowitz, The Lefkowitz Firm, LLC, Atlanta 12:00 LUNCH (Included in registration fee)

5 v Table of Contents Page Chapter Foreword...iii Program Schedule...iv Creating and Presenting Effective Demonstrative Evidence at Trial Steven R. Thornton Workers Compensation and the Coordination of Third Party Claims Laura C. Reis The New Georgia Evidence Code Numbers a Plaintiff s Personal Injury Attorney Should Know Parag Y. Shah How to Be Ethical and Avoid Malpractice David N. Lefkowitz Making Your Client Whole: Getting Your Fees for Bad Faith and Abusive Litigation Charlotte B. Perrell Identifying Valid Claims It Takes All Three Legs for the Stool to Stand Douglas C. Dumont How to Strike a Friendly Jury Voir Dire and Jury Selection Jenny E. Jensen Five Ways Plaintiffs Torpedo Their Cases Douglas K. Burrell Representing Victims of Criminal Acts Apportionment in Andrew T. Rogers Maximizing Recovery Beyond Workers Compensation Michael J. Warshauer Appendix: The Institute of Continuing Legal Education in Georgia... 1 ICLE Information... 4 Errata Sheet... 5

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7 PLAINTIFF S PERSONAL INJURY CREATING AND PRESENTING EFFECTIVE DEMONSTRATIVE EVIDENCE AT TRIAL Steven R. Thornton Thornton Law Firm, P.C. Atlanta, Georgia

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9 Chapter 1 i CREATING AND PRESENTATING EFFECTIVE DEMONSTRATIVE EVIDENCE AT TRIAL ICLE Seminar: Plaintiff s Personal Injury March 29, 2013 Steven R. Thornton Thornton Law Firm, P.C. Two Ravinia Drive, Suite 500 Atlanta, Georgia TABLE OF CONTENTS I. Why Should We Use Demonstrative Evidence At Trial?... 1 II. Legal Basis For Using Demonstrative Evidence At Trial... 2 III. Creating Effective Demonstrative Evidence. 2 A. Create B. Design C. Test D. Cost E. Equipment IV. Examples. 6 A. Purely Demonstrative Evidence.. 6 B. Admissible Evidence.. 7 V. Ways To Present Demonstrative Evidence.. 7 A. Sketch Pad... 7 B. Trial Boards.. 8 C. PowerPoint/Keynote.. 8 D. ELMO Document Camera... 8 VI. Conclusion. 8

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11 Chapter 1 1 of 8 CREATING AND PRESENTATING EFFECTIVE DEMONSTRATIVE EVIDENCE AT TRIAL Steven R. Thornton Thornton Law Firm Two Ravinia Drive Suite 500 Atlanta, GA I. WHY SHOULD WE USE DEMONSTRATIVE EVIDENCE AT TRIAL? Trial lawyers almost universally agree that quality demonstrative evidence is essential to a successful jury trial. Why is this concept accepted so widely? I believe there are two reasons: (1) Demonstrative evidence helps jurors learn; and (2) Demonstrative evidence keeps jurors interested. After a long period of discovery and preparation, we bring our cases to trial before a group of strangers who know nothing about our case and who probably do not want to be serving on the jury. Our job is to teach and motivate. We must present our evidence to the jury, explain the evidence to the jury, and teach the jury why the evidence is important to our case. Many studies have shown that people remember information better and can recall it better when it is presented both visually and verbally. This is often referred to as visual learning. As trial lawyers, we must become visual teachers. Keeping the jury focused on our issues is also important. We want the jury to be captivated with our story and our case. Getting and keeping the jury s complete attention at trial is extremely difficult. Interesting and relevant demonstrative evidence can help you do this. 1

12 Chapter 1 2 of 8 II. LEGAL BASIS FOR USING DEMONSTRATIVE EVIDENCE AT TRIAL The basis for using demonstrative evidence at trial is found in O.C.G.A , which provides: In the trial of any civil action, counsel for either party shall be permitted to use a blackboard and models or similar devices in connection with his argument to the jury for the purpose of illustrating his contentions with respect to the issues which are to be decided by the jury, provided that counsel shall not in writing present any argument that could not properly be made orally. It has been my experience that demonstrative evidence is commonly and extensively used by trial lawyers on both the plaintiff and defense sides. Because of this, judges are accustomed to seeing demonstrative evidence and visual exhibits. To minimize objections in front of the jury, I often show defense counsel my visual exhibits before trial and ask if they plan to object; usually there is no objection. III. CREATING EFFECTIVE DEMONSTRATIVE EVIDENCE Many of us do not have natural creative and artistic talents. But, we all know the evidence in our cases backwards and forwards, and therefore we know what the jury needs to see to learn about our case. Once we know what the jury needs to see, we can create the visuals to help them learn. Many lawyers wait until shortly before trial to prepare their exhibits. Yet, compelling exhibits take time to create. I suggest starting to develope visuals during discovery, when documents are obtained and witnesses are deposed. This gives you time to revise the visuals over and over before they are finalized just before trial. The time and energy devoted to creating exhibits is time well spent. 2

13 Chapter 1 3 of 8 A. Create The creative process requires focus without distractions. One of the most important things you can do when creating visuals is to give yourself time to think in a location where you can relax. You do not want to feel rushed, distracted, or preoccupied these things kill creativity. So get away from your computer, your phone, your , and go to the place where you can think without interruption. Are you there? Alright, let s think and create. Wait I said let s get away from your computer. That means we will not go to PowerPoint/Keynote right now. Instead, grab a pen and pad of paper, or bring a sketch pad or whiteboard. We are going to sketch out ideas. First, identify the main core points you must prove to win your case. After that, break each core issue down into smaller subjects that can be established one by one. Once that is done, we can begin the brainstorming process, where we will explore ideas, make lists, sketch out ideas and concepts on a large scale, and step back to see if they flow together logically. Stepping back and looking at all the ideas makes it easier to see the big picture. Then you can identify what is essential to your core message and what can be removed. The process described above is referred to as Ready Fire Aim. Ready is preparing to create in an atmosphere that allows open thought without distraction. Fire is the brainstorming process. Aim is cutting the information you don t need. B. Design For me, Design is the most important part of the creative process. If your visual contains the needed information but the exhibit is designed poorly, the exhibit is not 3

14 likely to be effective. We must present the information in a format that jurors will understand. Proper design is the way to do that. If I could use only one word to summarize what I believe is essential for an effective visual, it would be this word: Simple. A Simple visual is one that has been designed for clarity that conveys the essence of an issue, and nothing more. Simple in this context does not mean simplistic, dumbed-down, deceptive/misleading, or oversimplified. Simple means clear, direct, and intelligent. Simplicity is powerful, yet it is neither simple nor easy to achieve. So how do we design Simple visuals for trial? By carefully reducing the nonessential information, while keeping in mind the concepts of subtelty, grace, and understated elegance. Unless you have superior graphic design talent, I recommend hiring a professional graphic designer to assist with preparing your visuals. Here are a few issues to consider when designing visuals: When in doubt, leave it out. Remove all nonessential information. Remove visual clutter. Err on the side of less visual information rather than more. When possible, use Pictures rather than words. People remember Pictures better than words. Chapter 1 4 of 8 Use Bullet Points rarely, and only if you must. Empty Space is elegant and powerful. Place text within images, rather than next to an image. Strive for Balance and Alignment in a visual. Repeat selected elements throughout visuals: font, color, images. 4

15 Chapter 1 5 of 8 Match Color with the message being conveyed. In a PowerPoint/Keynote, avoid animated slide transitions and 3-D effects. Avoid Clip Art or animated photos. Find quality photos instead. C. Test Once you have created and designed your visuals, you should test them to see if they convey the desired message to the viewer. If you do not test your visuals, you may inadventely introduce an exhibit to the jury that conveys a message that supports your opponent s case. This is particularly true with photographs and diagrams. Testing is easy to do. Simply show your visuals to others and ask what they think. I recommend testing visuals for content, message, design, and color. Usually you can improve your visuals by receiving feedback from those not familiar with your case. D. Cost Compelling exhibits can be extremely costly, surprisingly inexpensive, or somewhere in the middle. Trial board enlargements of pdf documents typically cost $45-$55 for a 30 x 40 board. Graphic design fees and color can run the cost to over $125 per board, depending on the complexity of the image. Medical illustrations often cost $800 - $1,200 apiece, but this is a good deal if the case has a value of over $100,000. For smaller cases, one could use the plaintiff s X-rays or simply enlarge an illustration out of a medical text. PowerPoint/Keynote presentations are inexpensive. Assuming you have the software and the images you want to display (photographs, deposition testimony), PowerPoint/Keynote presentations cost little to nothing to create. 5

16 Video accident re-creations can cost from $10,000 to upwards of $50,000. E. Equipment You will need a scanner and Adobe Acrobat software to convert documents into pdf format. Scanners are not overly expensive; mine cost $450. Adobe Acrobat came with the scanner I bought, but if you have to purchase Adobe Acrobat separately, it costs around $150-$200. items: Chapter 1 6 of 8 For quality photographs, digital cameras are the best and not overly expensive. To display your visuals to the jury in the courtroom, you may need the following Laptop with DVD player and PowerPoint/Keynote software Easel with sketch pad and markers Projector Screen Table for projector Extension cords Power strip Speakers for computer Presentation easels for trial boards IV. EXAMPLES A. Purely Demonstrative Evidence 1. Photographs / Charts / Diagrams 2. Medical Illustrations / X-rays 3. Video of Accident Re-creation or Product Testing 4. Critical Deposition Testimony 5. Day-in-the-Life videos 6. Models 7. Excerpts from Defendant s Web Site 6

17 Chapter 1 7 of 8 8. Jury Instructions 9. Verdict Form B. Admissible Evidence 1. Photographs 2. Guilty Plea to Traffic Ticket 3. Defendant s Safety/Security/Training Manuals 4. Medical Bills 5. Lost Income Documentation 6. Product Specifications of Subject Product 7. Product Specifications of Competitor Product 8. Industry Standards ANSI, ASTM 9. Evidence of Other Similar Incidents 10. Building and Housing Codes 11. Life Care Plan Summary V. WAYS TO PRESENT DEMONSTRATIVE EVIDENCE A. Sketch Pad When a witness testifies to a critical fact, write it on a sketch pad in front of the jury. When you refer to that point in your closing argument, the jury will remember that the witness testified to the point because they saw you write it down when it happened. I never go to trial without a sketch pad. 7

18 B. Trial Boards The low-tech approach of trial boards is one of the most effective methods for visuals. Trial boards are easy to handle in front of the jury and there is no risk of equipment malfunction. C. PowerPoint/Keynote Multi-media presentations can be effective at trial. All trial lawyers should know how to create a PowerPoint/Keynote presentation, and how to operate the presentation themselves. Make sure to focus group the presentation before trial for effectiveness, and to test the equipment to avoid a malfunction during trial. D. ELMO Document Camera I love using an ELMO document camera in the courtroom. Once the ELMO and screens are in place, all you need to do is put the document on the ELMO and it will display on the screens. This is most useful when a witness is testifying; by hearing the witness testify and seeing the document at the same time, the jury will remember the exhibit better and be able to recall it when deliberating. ELMOs are expensive and not typically provided by courts. Chapter 1 8 of 8 VI. CONCLUSION Almost all trial lawyers today prepare their cases with demonstrative exhibits and visual aids. Carefully planned and designed visuals can help you teach your essential concepts to the jury. In today s legal setting, with all of the technological advances available to lawyers and expected by jurors, demonstrative evidence is practically a requirement. 8

19 PLAINTIFF S PERSONAL INJURY WORKERS COMPENSATION AND THE COORDINATION OF THIRD PARTY CLAIMS Laura C. Reis ReisLaw, LLC Atlanta, Georgia

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21 Chapter 2 1 of 7 Workers Compensation and the Coordination of Third Party Claims Plaintiff s Personal Injury ICLE March 29, 2013 GBP Atlanta Laura C. Reis, ReisLaw, LLC Determining Your Role

22 Chapter 2 2 of 7 Workers Compensation Benefits -Weekly Income Benefits (TTD) -Medical Treatment per Fee Schedule -Authorized Body Parts -Authorized Physician -Mileage/Transportation, RX, Durable Medical Equipment, Rehab Nurse -Independent Medical Evaluation

23 Chapter 2 3 of 7 The Workers Comp Lion Pit Case nurse managers attending appointments writing progress reports Claims adjusters involved from day one Surveillance Negative Medical Evidence Workers Comp Panel of Physicians Light Duty Job Releases ICMS and Online Claim Reporting Renegade Claimants The Lion Taming Act Be your own case nurse manager Take control of the medical Negotiate early and often Protect the (competing?) claims Communicate with your client

24 Chapter 2 4 of 7 Screening the Case Exclusive Remedy / Borrowed Servant Bar Premises Liability Medical Negligence Defective and Dangerous Products/ Implants Employment Discrimination, Wrongful Termination, Wage and Hour SSDI Whistleblower Claims Insurance Coverage/Bad Faith/Errors and Omissions The Elements of a Compensable Workers Compensation Claim 1. Jurisdiction 2. Venue 3. Three or more employees 4. Subject to the Georgia Workers' Compensation Act 5. Notice of Accident 6 Accident arose out of Claimant's employment for this Employer (scope) 7. Accident occurred during the course of Claimant's employment for this Employer 8. Statute of Limitations Claim is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury. The claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits. 9. Injury 10. Disability

25 Chapter 2 5 of 7 WORKERS COMPENSATION TERMS SBWC (State Board of Workers Compensation) TTD (Temporary Total Disability) TPD (Temporary Partial Disability) PPD (Permanent Partial Disability) AWW (Average Weekly Wage) CR (Compensation Rate) ATP (Authorized Treating Physician) IME (Independent Medical Exam) ICMS (Integrated Claims Management System) ALJ (Administrative Law Judge) COMMON BOARD FORMS WC-1 -Employer's First Report of Injury WC-2 -Notice of Payment or Suspension of Benefits WC-3 -Notice to Controvert WC-4 -Case Progress Report WC-6 -Wage Statement WC-12 -Request for Copy of Board Records WC-14 -Notice of Claim/Request for Hearing/Request for Mediation WC-14a -Request to Amend a Form WC-14 WC-15 -Attorney Certification for No-Liability Stipulations WC-100 -Request for Settlement Mediation WC-102 -Request for Documents to Parties WC-102b -Notice of Representation WC-102c -Attorney Leave of Absence WC-102d -Motion/Objection to Motion WC-104 -Notice to Employee of Medical Release to Return to Work with Restrictions or Limitations WC-108a -Attorney Fee Approval WC-108b -Attorney Withdrawal/Lien WC-200a -Change of Physician/Additional Treatment by Consent WC-200b -Request/Objection for Change of Physician/Additional Treatment WC-205 -Request for Authorization of Treatment or Testing by Authorized Medical Provider WC-206 -Notice of Intent to Become a Party at Interest WC-207 -Authorization and Consent to Release Information WC-226a -Petition for Appointment of Temporary Guardianship of Minor(s) WC-226b -Petition for Appointment of Temporary Guardianship of Legally Incapacitated Adult WC-240 -Notice to Employee of Offer of Suitable Employment WC-240a -Job Analysis WC-243 -Credit WC-244 -Notice of Intent to Become a Party of Interest WC-262 -Wage Documentation of Temporary Partial Disability Payments

26 Chapter 2 6 of 7 Litigation Strategies Pre-suit witness investigation, evidence preservation and affidavits Medical Record and Employment File availability Requesting a workers compensation hearing Targeted discovery and depositions Business records Administrative Law Judges vs. Trial By Jury Settlement Considerations disclosures in depositions and mediations reserving deposition objections/waiving signature disclosure of additional claims subrogation rights and Georgia s made whole doctrine language/legalese in the Workers Compensation Stipulation and Agreement The Release SBWC Approval

27 Chapter 2 7 of 7

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29 PLAINTIFF S PERSONAL INJURY THE NEW GEORGIA EVIDENCE CODE NUMBERS A PLAINTIFF S PERSONAL INJURY ATTORNEY SHOULD KNOW Parag Y. Shah Shah Law Firm Atlanta, Georgia

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31 Chapter 3 i TABLE OF CONTENTS Numbers to Know... 3 Appendix (The Code) 8 Evidence Statutes Correlating with Numbers to Know 2

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33 Chapter 3 1 of 76 NUMBERS TO KNOW PRELIMINARY 103 Object Specific Grounds Proffer Once Ruling, Don t Renew 104 Motions in Limine Notice Preponderance JUDICIAL NOTICE 201(g)(1) Judicial Notice Google Maps (distance, intersection, locations) US v. Perea-Rey, 680 F.3d 1179 (9 th Cir. 2012) US v. Sessa, 2011 WL (EDNY 2011) RELEVANCE 402 Relevance 403 Probative value SUBSTANTIALLY OUTWEIGHED Prejudicial effect 404(b) Propensity except for certain purposes 405 Character by Reputation or Opinion 406 Habit or Routine Organization SPECIFIC TO CIVIL 407 Subsequent Remedial Measures inadmissible except products liability or another purpose, if controverted Practice Tip: exceptions Request for Admissions on these 408 Offers to Compromise AND Settle Practice Tip: Demand Letters 409 Offering or Promising to Pay medical bills or similar expenses inadmissible to prove liability 410 Plea of Nolo Contendere Not Admissible 3

34 Chapter 3 2 of Liability Insurance inadmissible, except for certain situations AND inverse of 403 Practice Tip: Request for Admissions on these exceptions 415 Prior sexual assault/ child molestation in civil cases 416 Apology of health care providers is inadmissible PRIVILEGES 509 Privileges for Agents WITNESSES 608 Credibility of Witnesses 609 Impeachment by Conviction Witness = 403 Accused = Probative value OUTWEIGHS Prejudicial Effect False Statement admitted regardless of punishment 10 Years Probative value supported by facts and circumstances substantially outweighs prejudicial effect Nolo inadmissible 612 Refreshed Recollection 613 Prior Statement of Witness Not shown or contents disclosed to witness 621 Disproving Facts etc. Practice Tip: Getting in Nolo Pleas, Misdemeanors, 622 Witness s Feelings and Relationship to Parties EXPERTS Expert Qualifications, Bases of Opinions, Ultimate Issue, Underlying Fact HEARSAY NO RES GESTAE 801(1) Prior Statement 4

35 Chapter 3 3 of (2)(D) Admission by Party-Opponent Agent or Employee (1) Within scope of agency or employment; (2) Made during existence of the relationship 802 Hearsay Rule Object otherwise Waived 803 Availability of Declarant Immaterial 803(5) Recorded Recollection (i.e. Affidavit) 803(6) Business Records 902(11); (12) (i.e. Medical Reports) 803(7) Absence of Records (i.e. Kroger) 803(8) Public Records Police Reports in Civil Cases Matters observed by a police officer and put into a report pursuant to duty fall under subsection (B) of (8). See, e.g., Jonas v. Isuzu Motors Ltd., 210 F.Supp.2d 1373, 1378 (M.D. Ga. 2002). Matters observed includes statements the officer heard and recorded from witnesses, though the witness's statements are not admissible unless they qualify for some hearsay exception. See, U.S. v. Sallins, 993 F.2d 344, 347 (3d Cir. 1993); U.S. v. De Peri, 778 F.2d 963, 977 (3d Cir. 1985). See also, U.S. v. Taylor, 462 F.3d 1023 (8th Cir. 2006) (police report inadmissible to prove that gun was stolen where the citizen's report to the police fell under no hearsay exception). Factual findings in police reports are rarely admitted under subsection (C) of (8) since such reports typically are rather cursory. However, specific findings based on a thorough investigation and not simply the statements of witnesses may be admissible, though only in civil cases. See, e.g., Hendrix v. Evenflo Co., Inc., 255 F.R.D. 568, 580 (N.D.Fla. 2009). See also, Mintah v. Arms, 251 Ga. App. 572, 555 S.E.2d 466 (2001) ( Accident reports filed with the Department of Motor Vehicle Safety shall not be referred to or admitted as evidence in any civil damages trial ). O.C.G.A Declarant Unavailable 804(b)(2) Dying Declaration 805 Hearsay within Hearsay SPECIFIC TO CIVIL 821 Admissions in Pleadings 5

36 Chapter 3 4 of Medical Narrative AUTHENTICATION 901 What it purports to be 902 Self-Authentication 902(7) s 902(8) Notary 902(11); (12) Certified Records w/ Business Records Exception and Notice MEDICAL RECORDS (1) 902(11); (12) (2) 403 (3) 803(6) (also, note party opponent) (4) Chapter 7 Daubert (5) Continuing Witness Rule does not go back to jury SPECIFIC TO CIVIL 921 Competent Witness to Identify Medical Bills 924 DPS or DDS records (i.e. Drivers License) (see also in relation to 404(b)) CONTENTS OF WRITINGS (i.e. BEST EVIDENCE) 1002 Not just writings, but also recordings and photographs 1003 Duplicates 1004 Lost SPECIFIC TO CIVIL 1007 Proving contents by deposition or admission without accounting for nonproduction of original MISCELLANEOUS Notice to Produce 6

37 Chapter 3 5 of Preponderance Presumption arising from failure to produce evidence Presumption arising from failure to answer letter ; 45 Mortality Tables 7

38 Chapter 3 6 of EDITION THE CODE A Reference Guide to Georgia Rules of Evidence Parag Y. Shah

39 Chapter 3 7 of 76 Copyright 2012, Parag Y. Shah Elizabeth Books, LLC. All Rights Reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the author. ISBN

40 Chapter 3 8 of 76 RULINGS & ADMISSIBILITY RULINGS ON EVIDENCE (a) Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and: (1) In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by an offer of proof or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding any evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve such claim of error for appeal. (b) The court shall accord the parties adequate opportunity to state grounds for objections and present offers of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may direct the making of an offer of proof in question and answer form. (c) Jury proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, including, but not limited to, making statements or offers of proof or asking questions in the hearing of the jury. (d) Nothing in this section shall preclude a court from taking notice of plain errors affecting substantial rights although such errors were not brought to the attention of the court. OCGA

41 Chapter 3 9 of 76 PRELIMINARY QUESTIONS (a) Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (b) of this section. In making its determination, the court shall not be bound by the rules of evidence except those with respect to privileges. Preliminary questions shall be resolved by a preponderance of the evidence standard. (b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be conducted out of the hearing of the jury when the interests of justice require or when an accused is a witness and requests a hearing outside the presence of the jury. (d) The accused shall not, by testifying upon a preliminary matter, become subject to crossexamination as to other issues in the proceeding. (e) This Code section shall not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. OCGA

CHAPTER 5 RULES OF EVIDENCE

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