1 DEMONSTRATIVE EVIDENCE PROBLEMS IN A PERSONAL INJURY CASE PAUL N. LUVERA JR. In the majority of personal injury trials demonstrative evidence represents an essential part of the case. Such evidence, when used effectively, is an invaluable aid to clarify the issues during the course of the trial. Through the use of demonstrative evidence the judge and jury will gain a wider perspective of the important aspects of the case and will be able to understand, to a greater extent, the pain and suffering of a client, loss of income, shortened life expectancy and body injury. While the experienced trial lawyer will have little difficulty with such evidence, the general practitioner may find the admission of evidence such as illustrations, photographs, X-rays, models, mortality tables, hospital records and the like, confusing and troublesome. This article is intended to be a brief discussion of the fundamental rules involved in the admission of such evidence and their importance in personal injury litigation. MODELS AND SAMPLES Models are a very common type of illustrative evidence, and determination of their admissibility rests within the discretion of the trial court.' Normally evidence indicating that the model is appropriate for demonstrative purposes is required, "but probably the appropriateness will often be pertinent only to the weight of the model as evidence." 2 In 1964, the Washington court appears to have tightened the requirements regarding the admissibility of illustrative exhibits. In deciding whether to admit a knife for illustrative purposes, the court, in State v. Gray,' spoke of the admission of models, samples * Paul N. Luvera, Jr., LL.B. 1959, Gonzaga Law School. Mr. Luvera is a partner in the firm Bannister, Bruhn & Luvera, Mount Vernon, Washington. I Schroeder v. Hotel Commercial Co., 84 Wash-. 685, 147 Pac. 417 (1915) ; Kiessling v. N. W. Greyhound Lines, 38 Wn.2d 289, 229 P.2d 335 (1951) ; Pulley v. Pacific Coca Cola Bottling Co., 68 Wash. Dec.2d 770, 415 P.2d 636 (1966). See ANNOT. 66 A.L.R (1959). See also Allen v. Porter, 19 Wn.2d 503, 143 P.2d 328 (1943) ; and 2 JONES EVIDENCE 442 (5th ed. 1958). 2 5 MEISENHOLDER, WASHINGTON PRACTICE 62 (1965) Wn.2d 979, 395 P.2d 490 (1964).
2 GONZAGA LAW R EVIEW [Vol. 2 and things offered exclusively for illustrative purposes and ruled this evidence,"...must not only be relevant and material in character to the ultimate facts sought to be demonstrated by their use, but additionally, must be supported by proof showing such evidence to be substantially like the real thing and substantially similar in operation and function to the object or contrivance in issue. If the proffered evidence does not meet this test it should be rejected. If this language can be extended to all forms of illustrative evidence, a higher degree of authentication than has previously been required would appear to be necessary to admit these exhibits. It is doubtful, however, that this strict requirement would apply in all instances, particularly civil cases. The Washington court has long recognized the value of illustrative evidence and has encouraged its use.' It is difficult to believe that the court intends to restrict this use even though the language in Gray would seem to so indicate. It has been suggested that evidence of this type is "so useful in giving clarity and interest to the spoken statement that no special control over their admission is needed beyond the requirement for all testimony that it be relevant." 6 This seems to be a correct view of the matter, leaving discretionary control in the trial court to prevent abuses in the administration of justice, especially where the objections raised as to admissibility of the exhibit go only to its weight. If the illustration is misleading in any way this can be brought out by cross-examination and the court can give the jury a cautionary instruction regarding any inaccuracies, and admonish them that the exhibit is admitted for illustrative purposes only. DRAWINGS AND ILLUSTRATIONS Most trial lawyers believe that illustrations explaining oral testimony are essential for a complete understanding of the facts of a personal injury case. The admission of illustrations, 7 such as schematic 4 State v. Gray, supra note 3, at 983, 395 P.2d at Kelly v. Spokane, 83 Wash. 55, 145 Pac. 57 (1914) ; Moran Bros. Co. v. Snoqualmie Falls Power Co., 29 Wash. 292, 69 Pac. 759 (1902.); Toole v. Franklin Inv. Co., 158 Wash. 696, 291 Pac (1930) ; Pulley v. Pacific Coca Cola Bottling Co., 68 Wash. Dec.2d 770, 415 P.2d 636 (1966). 6 McCoRMICK, EVIDENCE 386 (1954). McCormick indicates, however, that the trial judge's discretionary power may be necessary to prevent abuse of this technique. 7A distinction should be drawn between illustrative exhibits and those exhibits used as substantive evidence. Illustrative exhibits may be used to illustrate the testimony of a witness or aid the jury or judge in understanding testimony. Since the exhibits are used for illustrative purposes they do not have to be totally accurate and any inaccuracies can be pointed out. When using exhibits,that are substantive evidence a higher degree of authentication is necessary, requiring preliminary testimony regarding the accuracy of the data upon which the exhibit is based. MCCORMICK, EVIDENCE 180 (1954). For the Washington
3 March, 1967] DEMONSTRATIVE EVIDENCE drawings by a traffic officer or rough medical drawings by a medical witness, frequently will be decided on the basis of (1) does the illustration assist the jury in understanding the case; or (2) does the illustration assist the witness in explaining his testimony. It has been the common practice of Washington courts to receive private or unofficial maps, diagrams, sketches and other illustrations for the purpose of giving a representation of objects and places which cannot otherwise be conveniently described by a witness, or as an aid to the jury or court in connection with the testimony of a witness. The general test to be applied in the case of illustrative exhibits is that the exhibit be "substantially like" the thing sought to be illustrated.' As an example of a technique that might be used to authenticate a medical illustration, the following has been suggested:' Q. Doctor, I will show you what has been marked plaintiff's Exhibit No. 1, for identification, and ask you what this represents. A. This is a schematic drawing of the ligaments of the neck. Q. Is it reasonably accurate, anatomically speaking? A. Yes. Q. Does it show the area of the anatomy of the plaintiff we are concerned with in this case? A. Yes. Q. Will this drawing assist you in explaining your testimony to the jury? A. Yes. Q. Your honor, plaintiff offers into evidence plaintiff's Exhibit No. 1 for illustrative purposes only. The blackboard, another form of illustrative exhibit, which can often be used throughout the trial, is frequently an important courtroom aid. There are no formal rules regarding its use in the courtroom but writing on it is not considered as evidence, and its admiscourt's treatment of the distinction compare the following cases: Spokane v. Patterson, 46 Wash. 93, 98 Pac. 402 (1907) ; Ingersoll v. Olwell, 127 Wash. 276, 220 Pac. 755 (1923) ; Owens v. Seattle, 49 Wn.2d 187, 229 P.2d 560 (1956) ; San Juan County v. Hage, 54 Wn.2d 419, 341 P.2d 872 (1959) ; Hall v. King County Fire Dist. No. 43, 67 Wn.2d 446, 408 P.2d 14 (1965). 8 Franklin v. Engel, 34 Wash. 480, 76 Pac. 84 (1904) ; Spokane v. Patterson, 46 Wash. 93, 89 Pac. 402 (1908) ; Deitchler v. Ball, 99 Wash. 483, 170 Pac. 123 (1918) ; State v. Hunger, 18 Wash. 670, 52 Pac. 247 (1897) ; Ingersoll v. Olwell, 127 Wash. 276, 220 Pac. 755 (1923); Norton v. Anderson, 164 Wash. 55, 2 P.2d 266 (1931); Brown v. General Motors Corp., 67 Wn.2d 278, 407 P.2d 461 (1965). 9 3 AM. JUR. TRIALS 26, 27 and 9 AM. JuR. PROOF or FACTS
4 GONZAGA LAW REVIEW [Vol. 2 sibility is determined in the discretion of the trial judge." Since the admissibility of evidence through illustrations rests in the wide discretion of the trial court, the necessary degree of accuracy or quality of the reproduction should depend upon the purpose for which the exhibit is admitted. A rough representation of a scene conveying an impression, merely as an aid to a witness in explaining his testimony, will suffice in many instances." But when relative location, size, distance, shape, dimension, perspective or other details are significant, or when exact accuracy of detail in representation is essential, a high degree of authenticating" proof should be necessary. PHOTOGRAPHS AND X-RAYS Photographs have long been used, where appropriate, to assist the jury in understanding the facts of the case. As early as 1914, the Washington court, in recognizing photographs as valid illustrative aids, said: 1 " We deem it pertinent, however, to say that the practice of admitting photographs and models in evidence in all proper cases should be encouraged. Such evidence usually clarifies some issue and gives the jury and the court a clearer comprehension of the physical facts than can be obtained from the testimony of witnesses. Although it has been held reversible error to exclude a photograph which gives a fair representation of physical conditions material to the issues involved, 4 the admission or rejection of this evidence is also within the discretion of the trial court, 1 ' and will rarely be disturbed. The authentication requirements of photographs, while liberal, appear indefinite. 16 The photographer is not required to authenticate 10 See 5 MEISENHOLDER, WASHINGTON PRACTICE 33 (1965) for a complete discussion concerning the use of blackboards in the courtroom. " Ingersoll v. Olwell, 127 Wash. 276, 220 Pac. 755 (1923) ; Owens v. Seattle, 49 Wn.2d 187, 229 P.2d 560 (1956) ; San Juan Co. v. Hage, 54 Wn.2d 419, 341 P.2d 872 (1959) ; Hall v. King Co. Fire Dist. No. 43, 67 Wn.2d 446, 408 P.2d 14 (1965). See also 2 JONES, Evi- DENCE 458 (5th ed. 1958) ; ANNOT., 9 A.L.R.2d 1044, 1081 (1950). 12 The word "authentication" is used throughout this article in its broadest sense and means that testimony required to lay a foundation for the admission of evidence under discussion. For a discussion of the precise meaning of the term see McCoRMICK, EVIDENCE ch. 22 (1954). 13Kelly v. Spokane, 83 Wash. 55, 58, 145 Pac. 57, 58 (1914). 14 Washington v. Seattle, 170 Wash. 371, 16 P.2d 597 (1932). 15 State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961). See also McCoRMICK, EVIDENCE (1954) and Kelly v. Spokane, supra note MEISENHOLDER, WASHINGTON PRACTICE 50 (1965). See also 32 of that volume for a general discussion of this area.
5 March, 1967] DEMONSTRATIVE EVIDENCE his own photographs 17 but the witness who does the authenticating must be able to relate where, when and under what circumstances the photograph was taken, and that it is accurate." Thus, where the plaintiff testified that the photographs were a "reasonable representation of the ordinary daily conditions under which he worked" such testimony was deemed sufficiently identified to admit them into evidence. 9 A photograph which portrays a view differing from the condition existing at the time of an accident has been held admissible, since the differences generally affect the weight and not the admissibility of the evidence."' Neither the possibility of influencing the jury or generating prejudice, 2 nor the gruesome or unpleasant nature of the photograph 22 is sufficient to render an otherwise competent photograph inadmissible, and photographs taken in the morgue of a murder's victims showing the extent of their wounds have been held admissible. 3 An example of a technique that might be used to introduce photographs is as follows: Q. Handing you what has been marked Plaintiff's Exhibit No. 1, for identification, can you tell us what this represents? Q. Are you familiar with the scene represented in this photograph? Q. Can you tell us whether or not the photograph is a true and correct representation of what it purports to be? Colored slides, 24 as well as motion pictures," are considered proper evidentiary aids, and the Washington court has allowed a witness to mark on a photograph with a red pencil to show the area of injury referred to in his testimony. 26 Of all types of demonstrative evidence available to trial lawyers, photographs are the least expensive and usually the easiest to obtain. The judicious use of photographs can save much time in the trial and 17 State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1951) ; State v. Hardamon, 29 Wn.2d 182, 186 P.2d 634 (1947). 18 Ibid. 19 Kelly v. Great Northern Ry. Co., 59 Wn.2d 894, 899, 371 P.2d 528, 531 (1962). 20Owens v. Anderson, 58 Wn.2d 448, 364 P.2d 14 (1961) ; State v. Little, 57 Wn.2d 516, 358 P.2d 120 (1961) ; Kelly v. Great Northern Ry. Co., 59 Wn.2d 894, 371 P.2d 258 (1962); Mazon v. Druxman, 68 Wash. Dec.2d 695, 415 P.2d 86 (1966). 21 State v. Nyland, 47 Wn.2d 240, 287 P.2d 345 (1955). 22 Mason v. Bon Marche Corp., 64 Wn.2d 177, 390 P.2d 997 (1964). 2 State v. Nyland, supra note State v. Little, supra note 15; ANNOT., 73 A.L.R.2d 769 (1960). 25 Roberts v. Goerig, 68 Wash. Dec.2d 416, 413 P.2d 626 (1966). 26 State v. Hedin, 67 Wn.2d 542, 408 P.2d 245 (1965).
6 GONZAGA LAW REVIEW [Vol. 2 often explain facts to the jury more clearly than could oral testimony. Trial lawyers and courts have liberally applied the Washington court's rulings which encourage the use of photographs, 27 and since there are few personal injury cases in which a proper photograph would not be helpful to both the court and jury, the adoption of this liberal view can only aid in a clearer understanding of the facts of a case. Since 1901 the Washington court has deemed X-rays admissible if properly authenticated." Because of the technical nature of X-ray photography and since the X-ray itself does not furnish a means of identifying the subject, the authenticating testimony identifying the subject can only be supplied by a qualified person. 29 Similarly, the interpretation of what an X-ray reveals about the subject matter normally calls for expert testimony. 0 In Washington, a chiropractor has been held to be a qualified person, competent to interpret X-ray pictures, and the court adopted 3 ' the language of an earlier Massachusetts case which states :32 It is plain that knowledge of the human anatomy may be acquired to a high degree from a student of that subject, although such person is neither licensed nor registered as a doctor of medicine; and it is equally clear, as a matter of common knowledge, that in many professions, other than medicine, the use of the X-ray is familiar, and that it is read in connection with human anatomy. Although the court requires proof that the X-ray in question is of the person, anatomical part, or object lodged in the anatomy which it purports to be, and that it is a true representation of the subject X-rayed, 3 it has held that there should be no distinction made between an X-ray and a common photograph as to admissibility once the X-ray has been properly authenticated. 34 The Washington court has stated that a witness who identifies an X-ray need not have taken the X-ray picture himself if the witness was present at the time it was taken, saw the film removed from the 27 See note 5 and cited cases. 28 Miller v. Dumon, 24 Wash. 648, 64 Pac. 804 (1901). See also Engler v. Woodman, 54 Wn.2d 360, 340 P.2d 563 (1959). 29Ibid. See also Vale v. Campbell, 123 Or. 632, 263 Pac. 400 (1928) for the Oregon court's treatment of the area. 30 Miller v. Dunon, supra note 28. See also ANNOT., 5 A.L.R.3d 342 (1966). 31 Manos v. James, 7 Wn.2d 695, 710, 110 P.2d 877, 894 (1941), overruled on another point in Poutre v. Saunder, 19 Wn.2d 561, 143 P.2d 554 (1943). 32Whipple v. Grandchamp, 261 Mass. 40, 158 N.E. 270, 273 (1927). See ANNOT., 57 A.L.R. 974 (1928). 33 Miller v. Dumon, supra note 28 and 5 A.L.R.3d 303, 307 (1966). 34 Ibid.
7 March, 1967] DEMONSTRATIVE EVIDENCE machine and placed an identifying legend on it immediately after processing." 5 There are two common situations that exist which can create problems concerning the proper identification of X-rays and their admission into evidence. In the first situation, the physician or surgeon does not take the X-ray and has delegated the task to a technician who is under his general supervision in the office. The second situation involves a physician, who, lacking office X-ray facilities, sends the patient to a radiologist, and the radiologist sends the films and his interpretation of them to the physician. Although there appear to be no Washington cases concerned with these precise situations, several jurisdictions allow the doctor in the first situation to testify about the X-ray's authenticity, correctness, accuracy and identity. 36 This rule of authentication has some indirect support in this state. 7 In the second example, calling a physician to authenticate the X-ray when he was not present while it was taken by the radiologist appears to be insufficient identification, 38 and prudent counsel will authenticate the X-ray through the radiologist. In a recent Washington case, 39 an analogous situation arose where a physician took a vaginal smear and delivered the slide to a nurse who took it to a laboratory and the laboratory supplied the physician with a report. The court held that since the slide examined by the technician contained no identifying marks and was handled by at least one other person before the physician received it, the trial court properly refused to allow testimony regarding the results of the test. An example of how one might identify an X-ray would be as follows: Q. Handing you what has been marked plaintiff's Exhibit No. 1, for identification, what does this represent? Q. Was this X-ray taken in your office under your supervision, direction and control? Q. Can you tell us whether or not this is a reasonable representation of that part of the anatomy it portrays? Many attorneys use positive prints made from X-ray film because it is often difficult for the jury to see the X-ray film in a view box. 35 Manos v. James, supra note ANNrOT., 5 A.L.R.3d 303, 346 (1966). 37 Miller v. Dumon, supra note 28. Cf. Engler v. Woodman, 54 Wn.2d 360, 340 P.2d 536 (1959) where the doctor's testimony, regarding appellant's visual fields, was based upon his analysis of his office record prepared by his technician. 38 State v. Heffernan, 59 Wn.2d 413, 367 P.2d 848 (1962). 39 Ibid.
8 GONZAGA LAW REVIEW [Vol. 2 There is no reason why these prints should not be admissible if properly authenticated. A comparison X-ray will frequently be helpful to the jury in understanding the nature of an injury. For instance, where plaintiff sustained a fractured kneecap, the court properly admitted into evidence an X-ray picture of a broken knee of another person, showing an injury the defendant contended was more severe than that which the plaintiff had sustained.' It follows from this decision that the Washington court may admit in evidence X-rays of the plaintiff, or some other person, which show a normal portion of the same anatomy which the plaintiff had injured, for comparison and illustration. MORTALITY TABLES In Lofgren v. Seventh Day Adventists, 4 the Washington court adopted the opinion set forth in DeKnoning v. Williams, 42 and held that where there is evidence of either (a) a permanent injury, (b) future loss of earnings, or (c) future pain and suffering, evidence of life expectancy of the injured plaintiff is admissible. The court has also suggested that the mortality table, published by the insurance commission pursuant to statute, 43 be used by the courts in guiding juries through the uncertainties of life expectancy, 4 and courts may also take judicial notice of mortality tables. 45 Mortality tables are merely a guide to aid the jury and do not determine any one person's life span. 46 They are admissible even though the plaintiff is not an insurable risk, has less than average good health, 47 or has no earning ability.' Furthermore, these tables are not inadmissible simply because the jury may find other considerations which reduce or destroy the value of the tables as evidence. 49 An instruction regarding life expectancy is proper when the extent of impairment to the plaintiff's earning capacity is highly uncertain, 40 Norland v. Peterson, 169 Wash. 380, 13 P.2d 483 (1932). 41 Lofgren v. Western Washington Corp. of Seventh Day Adventists, 65 Wn.2d 114, 147, 396 P.2d 139, 141 (1964). Although a requested instruction on life expectancy should be given in a case where plaintiff is permanently injured, a refusal to give such instruction is not necessarily prejudicial error and requires a new trial Wn.2d 139, 142, 286 P.2d 694, 696 (1955). 43 WASH. REv. CODE (1947). 44 Bradshaw v. Seattle, 43 Wn.2d 766, 264 P.2d 265 (1953). 45 Roalsen v. Oregon Stevedoring Co., 147 Wash. 672, 267 Pac. 433 (1928) ; Cox v. Datson Logging Co., 18 Wn.2d 49, 138 P.2d 169 (1943). 46.Bradshaw v. Seattle, supra note Dixon v. Haynes, 146 Wash. 163, 262 Pac. 119 (1927). 48 Franklin v. Northern Life Ins. Co., 4 Wn.2d 541, 564, 104 P.2d 310, 320 (1940). 49 Id. at 564, 104 P.2d at 320.
9 March, DEMONSTRATIVE EVIDENCE and where, due to the nature and gravity of the injury, the jury could reasonably conclude that the plaintiff's earning capacity will be affected." 0 The court has further stated that evidence that the injured plaintiff was not free from pain at the time of trial, coupled with continued pain and suffering from the date of injury to time of trial, was sufficient to justify an instruction on life expectancy." The common practice is to propose an instruction on life expectancy based on the mortality table, asking the court to take judicial notice of the table, and once such notice is taken it is not necessary to introduce further testimony regarding the mortality table. 2 HOSPITAL RECORDS It is frequently good practice to introduce into evidence the injured plaintiff's hospital records, especially when his injuries are serious. The admission of this documentary evidence is governed largely by the Uniform Business Records as Evidence Act, 53 which provides that "a record of an act, condition or event shall, in so far as relevant, be competent evidence" if certain authenticating procedures first take place. 4 The Act created an exception to the hearsay rule, and was adopted to avoid the necessity of calling the many witnesses who may have had a part in compiling the record. For authentication purposes, it is only necessary to call as a witness the person whose duty it is to maintain custody of the record or who supervised its creation." The trial judge's ruling concerning the admission or exclusion of hospital records is given great weight and will not be overturned unless there is a clear showing of a manifest abuse of discretion. 57 The Act does not automatically make all material contained in such records admissible. 58 The Washington court has declared that a medical opinion on causation, which is not a result of an observed 50 Sherman v. Seattle, 57 Wn.2d 233, 356 P.2d 316 (1960). 51 Thompson v. Seattle, 35 Wn.2d 124, 211 P.2d 500 (1949). See also supra note 41 and language therein. 52 Roalsen v. Oregon Stevedoring Co., supra note 45. See also Piland v. Yakima Motor Coach Co., 162 Wash. 456, 298 Pac. 419 (1931) ; 5 MEISENHOLDER, WASHINGTON PRACTICE 590 (1965). 53 WASH. REV. CODE (1947). 54 WASH. REV. CODE (1947). 55 Young v. Liddington, 50 Wn.2d 78, 309 P.2d 761 (1957). See also 33 WASH. L. REV. 158 (1955). 56 Cantrill v. American Mail Line, 42 Wn.2d 590, 257 P.2d 179 (1953). 57 Ibid. 58 Allen v. Fish, 64 Wn.2d 665, 393 P.2d 621 (1964) ; Benjamin v. Havens, Inc., 60 Wn.2d 196, 373 P.2d 109 (1962).
10 GONZAGA LAW REVIEW [Vol. 2 act, condition or event, cannot be established by a business record, 59 and therefore a medical report containing a physician's conclusion is inadmissible for proving conclusions relative to causation. 0 Reports of this kind are inadmissible because the Act was not adopted to permit evidence of the recorder's opinion upon which other persons qualified to make the same opinion might have differed. 61 The law pertaining to the admission of written reports of doctors contained in hospital records is still in a state of evolution and confusion. It remains unsettled whether a medical opinion as to causation, which is the result of an observed act, condition or event, can be established by a business record. Although at least two opportunities to clarify this problem have been presented to the court, it has not done so. 6 " Although the Business Records Act was adopted in part to avoid the necessity of calling numerous witnesses, it would seem unfair to allow medical opinions, as opposed to factual findings of doctors, to be admitted through hospital records. The nature and extent of the injuries sustained is one of the most important issues in personal injury litigation' and the opportunity of crossexamination is of prime importance in this regard. A hospital record may still be admissible when it shows the patient's medical history as related to his examining physician. 64 Portions of a hospital record made before the accident in question, relating to the plaintiff's physical condition at that time, are also admissible to show that the plaintiff was afflicted with prior injuries. 65 On the other hand, hospital records are not necessarily admissible to corroborate testimony of a patient where such testimony has not been contradicted. 66 The Washington court has indicated 67 that the proper procedure for counsel to follow in objecting to hospital records is to object to the portions of the records he deems inadmissible and to point out, specifically, the objectionable portion, thus giving the trial court an opportunity to pass on the question at the time the record is offered 59 Young v. Liddington, supra note Liljeblom v. Dept. Labor & Industries, 57 Wn.2d 136, 356 P.2d 307 (1960). 61 Ibid. 62 Kerr v. Cochran, 65 Wn.2d 211, 397 P.2d 642 (1964) ; Allen v. Fish, supra note However, it has been suggested that the degree of evidence required in an industrial insurance case should be less than that required in personal injury litigation not within the industrial insurance law. 36 WAsh. L. REv. 217 (1961). 64 Barracliff v. Maritime Overseas Corp., 55 Wn.2d 695, 349 P.2d 1080 (1960). 65 Cantrill v. American Mail Line, supra note Choate v. Robertson, 31 Wn.2d 118, 195 P.2d 630 (1948). 67 Allen v. Fish, supra note 58, at 671, 393 P.2d at 624.
11 March, DEMONSTRATIVE EVIDENCE in evidence. If this procedure is not followed, the trial court is not required to give the jury any cautionary instructions regarding the objectionable portions of the record. Frequently attorneys will stipulate that a deposition be taken from the medical records librarian to avoid the necessity of calling the witness at the time of trial. If this procedure is not followed, a witness, while authenticating hospital records might be asked the following questions: Q. Are you the medical records librarian and the authorized custodian of the hospital records? Q. Were the hospital records, produced pursuant to the subpoena duces tecum served upon you. compiled by the patient's treating physician, staff members and employees of the hospital? Q. Were the records prepared at or near the time of the condition, act or event recorded in the records, and were the records, kept and maintained by the hospital in the usual, normal and regular course of its business? A careful examination of hospital records should be made prior to offering them in evidence, to determine if they contain objectionable material, such as references to insurance or inadmissible opinions as to causation, which should first be deleted. Since one of the most effective methods of conveying to a jury the amount of pain and suffering the plaintiff has sustained is a hospital chart, an attorney who handles personal injury cases should be familiar with hospital records and usage. Inexpensive publications are available" to assist the trial attorney in acquiring knowledge in this area as well as publications by experienced lawyers." 9 CONCLUSION As early as 1882, when the hat and coat belonging to Doctor Jack, an Indian charged with homicide, was admitted into evidence," the Washington court has commented favorably upon the use of demonstrative evidence. In fact, demonstrative evidence has been used here and abroad for over a century. Speaking of demonstrative evidence, one court stated :72 It is said its great value lies in the human factor of understanding 68Law Notes, A.B.A. SECTION OF GENERAL PRACTICE AND YOUNG LAWYERS, The Anatomy of a Personal Injury Law Suit, January, For example, see 6 AVERBACH, HANDLING ACCIDENT CASES Ch. 97 (1958). 70 Doctor Jack v. Territory of Washington, 2 Wn. Terr. Rep. 101 (1882). 712 AVERBACH, HANDLING ACCIDENT CASES 2:97 (1958). 72 Smith v. Ohio Oil Co., App.2d 62, 134 N.E.2d 526, 530 (1956). Averbach,
12 GONZAGA LAW REVIEW [Vol. 2 between what is seen than what is heard. Wigmore favors the use of any aid modern science may provide, to the end that the jury may have the best possible understanding of the matters it must decide. It has often been said that "we learn or retain only thirty per cent of what we hear, only fifty per cent of what we see and seventy per cent of what we actually do." 3 Melvin M. Belli, in his work Modern Trials, 74 cites numerous examples of how demonstrative evidence can be employed in personal injury work. While there seems to be a prevalent belief that the use of demonstrative evidence is a recent innovation, actually the general use of demonstrative evidence is of ancient origin and has long had judicial recognition. The current interest in demonstrative evidence can be said to be a revival of a neglected art. The value of demonstrative evidence is shown in the shortening of trials and the dispelling of confusion in the minds of jurors concerning facts in controversy. Even the Washington supreme court employs demonstrative evidence for the purpose of shortening written opinions and clarifying decisions. The increasing number of photographs, diagrams and the like found in recent supreme court decisions witnesses this fact. 76 Modern courtrooms in Washington are equipped with numerous mechanical aids such as blackboards, X-ray view boxes, projectors, paper, crayons and similar items designed for use as demonstrative evidence. Is this not an admission of the real value of such evidence by the judiciary? Since juries normally have no prior knowledge about the facts of the case, nor the anatomy of the injured plaintiff, the trial involves a learning process by twelve ordinary people. All proper aids should be employed in assisting the jury to understand the facts in issue so that a proper decision can be rendered. The former president of the American Bar Association, Charles S. Rhyne, in commenting on demonstrative evidence has said: 7 Diagrams, X-ray pictures, and careful explanation of modern medical concepts are invaluable to a jury of laymen as aids in clarifying the 73 2 AVERBACH, HANDLING ACCIDENT CASES 2:100 (1958) BELLI MODERN TRIALS (1954). 75 JONES, EVIDENCE 441 (5th ed. 1958) ; WIGMORE, EVIDENCE ; Dolly, Demonstrative Evidence, Nothing New, 42 ILL. B.J. 136; Karlin, Patterns in Proof, 23 J.B.A. Van, 150 (1954). 76 See State v. Corvallis Sand & Gravel Co., 69 Wash. Dec.2d 24, 416 P.2d 675 (1966) City of Medina v. Cook, 69 Wash. Dec.2d 573, 418 P.2d 1020 (1966) ; Cowlitz v. Miller, 68 Wash. Dec.2d 633, 414 P.2d 795 (1966). 77 Rhyne, Medicine and the Legal Profession, 167 JOURNAL OF THE A.M.A., 1372, 1374 (July 1958)
13 March, DEMONSTRATIVE EVIDENCE 89 issues which must be resolved. It is impossible to accurately establish the extent of injury and the resulting damage without such evidence. It therefore behooves every trial lawyer to examine each personal injury case to determine what kind of demonstrative evidence should be employed, and to use it intelligently and under proper circumstances. Technical objections going to the weight of the evidence rather than to its admissibility should not be a basis of excluding demonstrative evidence. The judicious and proper use of visual demonstrative aids is not only essential to successful advocacy but also a valuable aid to the court and jury.
Evidentiary Issues in Domestic Cases: An Overview Introduction A. Importance of legal representation in cases that involve domestic violence. B. History of protection order laws and implications for evidence.
Filed 5/21/10 CERTIFIED FOR PUBLICATION APPELLATE DIVISION SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE THE PEOPLE, CASE No. 30-2009-304893 Plaintiff and JUDGMENT ON APPEAL Respondent, from the SUPERIOR
FEATURE ARTICLE Evidence of Prior Injury Admissibility of Evidence of Prior Injury Under the Same Part of the Body Rule By: Timothy J. Harris Broderick, Steiger, Maisel & Zupancic, Chicago I. Introduction
5.51 LEGAL MALPRACTICE (Approved 6/79) CHARGE 5.51A Page 1 of 9 A. General Duty Owing An action brought against an attorney alleging negligence in the practice of law is referred to as a malpractice action.
COURT OF COMMON PLEAS CLERMONT COUNTY, OHIO FRANKLIN MILLER, et al., : Plaintiffs : CASE NO. 2012 CVA 01052 vs. : Judge McBride H&G NURSING HOMES, INC., et al., : DECISION/ENTRY Defendants : Slater & Zurz,
PART III Discovery CHAPTER 8 Overview of the Discovery Process Generally, discovery is conducted freely by the parties without court intervention. Disclosure can be obtained through depositions, interrogatories,
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA JENNIFER WINDISCH, Plaintiff, v. CIVIL DIVISION CASE NO: 2007-CA-1174-K JOHN SUNDIN, M.D., RHODA SMITH, M.D., LAURRAURI
2013 IL App (1st) 120898-U FOURTH DIVISION March 28, 2013 No. 1-12-0898 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances
IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) SIMMONS V. PRECAST HAULERS NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT
LOCAL RULES FOR FOURTH CIRCUIT COURT DISTRICT OF MISSISSIPPI [Renumbered and codified by order of the Supreme Court effective May 18, 2006; amended effective April 23, 2009.] RULE 1. ASSIGNMENT OF CASES
UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1027 September Term, 2013 RONALD G. CHAMBERS v. COLIN M. BULEY Krauser, C.J. Zarnoch, Reed, JJ. Opinion by Zarnoch, J. Filed: December 29, 2014
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION EASTERN DENTIST INSURANCE : April Term 2004 COMPANY, : Plaintiff, : No. 2398 v. : LIONEL
Illinois Official Reports Appellate Court Continental Tire of the Americas, LLC v. Illinois Workers Compensation Comm n, 2015 IL App (5th) 140445WC Appellate Court Caption CONTINENTAL TIRE OF THE AMERICAS,
Portfolio Media. Inc. 860 Broadway, 6th Floor New York, NY 10003 www.law360.com Phone: +1 646 783 7100 Fax: +1 646 783 7161 firstname.lastname@example.org Alternative Burdens May Come With Alternative Causes
IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS COMPENSATION APPEALS PANEL AT JACKSON June 30, 2000 Session RONNIE WAYNE INMAN v. EMERSON ELECTRIC CO. Direct Appeal from the Chancery Court (Humboldt)
CAUSE NO. 02-01125-J CHARLES DURHAM IN THE 191ST DISTRICT COURT VS. LARVAN PERAILTA DALLAS COUNTY, TEXAS PLAINTIFF S MOTION TO RECOVER EXPENSES OF PROOF TO THE HONORABLE COURT: Comes Now, Charles Durham,
Offering Defense Witnesses to New York Grand Juries By: Mark M. Baker 1 Your client has just been held for the action of the Grand Jury. Although you have a valid defense, you do not want your client to
University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Court of Workers' Compensation Claims and Workers' Compensation Appeals Board Law 6-28-2016 McQuiddy, Jana v.
SUPERIOR COURT OF THE STATE OF WASHINGTON, COUNTY OF KING If You Are a Washington Health Care Provider or a Washington PIP Insured of a USAA Company, and Your Health Care Bills Were Reduced Based on an
The National Criminal Justice Trial Competition Co-Sponsored By American Bar Association and The John Marshall Law School 2016 QUESTIONS SUBMITTED WITH ANSWERS A 2016 Casefile (revised), exhibit 3 (a-e)
PROFESSIONAL GUIDE FOR ATTORNEYS AND PHYSICIANS of The Mississippi Bar and the Mississippi State Medical Association PREAMBLE Realizing that a substantial part of the practice of law and medicine is concerned
SUPREME COURT OF WISCONSIN 2008 WI 37 NOTICE This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 07-12 In the matter
TABLE OF CONTENTS Medical Malpractice Rules of Practice Rule 1. Rule 2. Rule 3. Rule 4. Rule 5. Rule 6. Rule 7. Applicability; Definitions Request for Medical Malpractice Review Panel Designation of Panel;
The Use of Next Generation Visual Evidence and Its Importance to Expert Witness Testimony and Presentation. National Trial Lawyers Summit January 18-21, 2015 Daniel L. Buckfire Buckfire & Buckfire, P.C.
Illinois Compiled Statutes HIGHER EDUCATION (110 ILCS 1005/) Private College Act. (110 ILCS 1005/0.01) (from Ch. 144, par. 120) Sec. 0.01. Short title. This Act may be cited as the Private College Act.
Nebraska Ethics Advisory Opinion for Lawyers No. 91-3 I. AS COUNSEL FOR A PLAINTIFF, AN ATTORNEY MAY NOT ETHICALLY INTERVIEW PRESENT OR FORMER EMPLOYEES OF A DEFENDANT CORPORATION IF: (a) THE EMPLOYEES
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections
May, 2011 FRCP and Physician Testimony: Treating Physicians, Experts, and Hybrid Witnesses The US Court of Appeals, Ninth Circuit, rules on these matters in the case of Goodman v. Staples the Office Superstore,
WORKING WITH EXPERTS IN FAMILY COURT by J. Benjamin Stevens and Jenny R. Stevens The Stevens Firm, P.A. Family Law Center 349 E. Main Street, Suite 200, Spartanburg, SC 29302 www.scfamilylaw.com :: (864)
Bridging the Common Law Civil Law Divide in Arbitration by SIEGFRIED H. ELSING * AND JOHN M. TOWNSEND * * INTERNATIONAL ARBITRATION has evolved as a system for resolving disputes among parties from different
2015 IL App (1st) 141985-U No. 1-14-1985 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Case 4:11-cv-00059-BLW Document 50 Filed 02/19/13 Page 1 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO ERIC STRICKHOLM, v. Plaintiff, Case No. 1:11-cv-00059-BLW MEMORANDUM DECISION AND ORDER
If/ehJ~ TO PENNSYLVANIA'S COURTS ThiS guide is intended to acquaint you with Pennsylvania's judicial system. It provides an overview of how our courts are organized and the kinds of work they do. We hope
Reprinted with permission from the Florida Law Weekly: [ 35 Fla. L. Weekly D1438a Insurance -- Personal injury protection -- Attorney's fees -- Paralegal fees -- Multiplier -- Circuit court did not depart
United States Court of Appeals For the Eighth Circuit No. 12-1383 James Bradshaw lllllllllllllllllllll Plaintiff - Appellee v. FFE Transportation Services, Inc. lllllllllllllllllllll Defendant - Appellant
Rules for Bankruptcy Cases, B.E. 2542 (1999) Translation By virtue of Section 19 of the Act for the Establishment of and Procedure for Bankruptcy Court B.E. 2542 (1999) the Chief Justice of the Central
NEW HAMPSHIRE BAR ASSOCIATION Ethics Committee Formal Opinion 1993-94/7 Candor to Tribunal: Use of Questionable Evidence In Criminal Defense January 27, 1994 RULE REFERENCES: *Rule 1.2 *Rule 1.2(a) *Rule
New York Law Journal Wednesday, July 31, 2002 HEADLINE: BYLINE: Trial Advocacy, Cross-Examination: The Basics Ben B. Rubinowitz and Evan Torgan BODY: Cross-examination involves relatively straightforward
3.00 3.01 Rulings and Remarks of The Court [WITHDRAWN] GENERAL INSTRUCTIONS IPI 3.01 is withdrawn. Use the current version of IPI 1.01 for general cautionary instructions. Instruction withdrawn May 2010.
View the online version at http://us.practicallaw.com/6-569-5426 Drafting and Issuing Subpoenas: New Jersey EZRA ROSENBERG, MICHELLE HART YEARY AND THOMAS J. MILLER, DECHERT LLP, WITH PRACTICAL LAW LITIGATION
IN THE WAKE OF THE ZIMMER DECISION, CAN A TORT PLAINTIFF INTRODUCE EVIDENCE OF A SOCIAL SECURITY DISABILITY AWARD AT THE TIME OF TRIAL? Patrick D. Heller, Esq.* Recently, in the published decision of Villanueva
New York Law Journal Tuesday, November 28, 2000 HEADLINE: BYLINE: Trial Advocacy, Direct Examination Of A Medical Expert Ben B. Rubinowitz and Evan Torgan BODY: The direct examination of your medical expert
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE In the Matter of a ) Uniform Pretrial Order ) ) Administrative Order 3AO-03-04 (Amended) UNIFORM PRETRIAL ORDER In order
[Cite as Mack v. Krebs, 2003-Ohio-5359.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN ) WENDY J. MACK Appellant v. JOHN KREBS, et al. Appellees C.A. No. 02CA008203
Transcript of Post-Restoration Competency Hearing Participants: The Honorable William F. Dressel, President of the National Judicial College (and retired judge) serving as the Judge The Honorable Michael
BEFORE THE APPEALS BOARD FOR THE KANSAS DIVISION OF WORKERS COMPENSATION KIMBERLY OWEN ) Claimant ) VS. ) ) Docket No. 1,050,199 MARKIN GROUP ) Respondent ) AND ) ) STATE FARM FIRE & CASUALTY COMPANY )
****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal
Jurisdictional Limits The justice courts have exclusive jurisdiction or the authority to hear all civil actions when the amount involved, exclusive of interest, costs and awarded attorney fees when authorized
Reed Armstrong Quarterly January 2009 http://www.reedarmstrong.com/default.asp Contributors: William B. Starnes II Tori L. Cox IN THIS ISSUE: Joint and Several Liability The Fault of Settled Tortfeasors
The Non-Lawyers Guide to Hearings before the State Engineer The information provided here contains general information about how to represent yourself in a hearing. This information is to help you prepare
Friday 31st October, 2008. It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective January 1, 2009. Amend Rules
I. ROBINSON V.BATES, 112 Ohio St.3d 17, 2006 Ohio 6362 (December 20, 2006). A. Landlord-tenant case In Hamilton County, Ohio, Plaintiff tenant sued her landlord for personal injuries caused when she broke
Page 1 of 5 Case Name: Sousa v. Akulu Between Sousa, and Akulu et al  O.J. No. 3061 36 C.P.C. (6th) 158 150 A.C.W.S. (3d) 320 2006 CarswellOnt 4640 Court File No. 05-CV-282383PD 3 Ontario Superior
PAGE 1 OF 8 809.03 (Use for claims arising before 1 October 2011. For claims arising on or after 1 October 2011, use N.C.P.I. Civil 809.03A.) NOTE WELL: Res Ipsa Loquitur has been approved as an option
Discovery Depositions 1 Part I: Practical Considerations in Planning and Preparing to Take a Discovery Deposition Purpose of Depositions: Perpetuate testimony Discover knowledge of facts and observations
Case4:12-cv-03288-KAW Document2-1 Filed06/25/12 Page1 of 7 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, OAKLAND DIVISION STANDING ORDER FOR MAGISTRATE JUDGE KANDIS A. WESTMORE (Revised
BITING THE BULLET: MEDICAL BILLS IN A POST HOWELL-CORENBAUM WORLD NOTE: This article was authored by Lawrence A. Strid and was published in the Spring 2014 edition of the Orange County Trial Lawyer s publication
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO ELAINE WILLIAMS and GEORGE W. REYNOLDS, vs. Plaintiffs-Appellants, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant-Appellee,
IN THE SUPREME COURT OF THE STATE OF DELAWARE KEVIN D. TALLEY, Defendant-Below No. 172, 2003 Appellant, v. Cr. ID No. 0108005719 STATE OF DELAWARE, Court Below: Superior Court of the State of Delaware,
MAINE SUPREME JUDICIAL COURT Decision: 2010 ME 124 Docket: Cum-10-173 Submitted On Briefs: October 21, 2010 Decided: November 30, 2010 Reporter of Decisions Panel: ALEXANDER, LEVY, MEAD, GORMAN, and JABAR,
IN THE COURT OF APPEALS OF TENNESSEE, AT JACKSON FILED July 13, 1999 INTEGON INDEMNITY Shelby County Chancery Court CORPORATION, No. 108770-1 R.D. Cecil Crowson, Jr. Appellate Court Clerk Plaintiff/Appellant.
Filed 6/29/16 In re A.S. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication
YOUR RIGHTS REGARDING ADMISSION TO AND DISCHARGE FROM A HOSPITAL UNDER MASSACHUSETTS MENTAL HEALTH LAW Prepared by the Mental Health Legal Advisors Committee December 2011 Massachusetts General Laws Chapter
Local Rule 1301 Scope. Compulsory Arbitration Local Rule 1301 Scope. (1) The following civil actions shall first be submitted to and heard by a Board of Arbitrators: (a) (b) (c) (d) Civil actions, proceedings
SUPREME COURT OF MISSOURI en banc KENNETH SUNDERMEYER, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE FOR ELVA ELIZABETH SUNDERMEYER, DECEASED, Appellant, v. SC89318 SSM REGIONAL HEALTH SERVICES D/B/A VILLA
NEW YORK STATE SUPREME COURT APPELLATE DIVISION, FOURTH DEPARTMENT HONORABLE HENRY J. SCUDDER PRESIDING JUSTICE GUIDELINES FOR ATTORNEYS FOR CHILDREN IN THE FOURTH DEPARTMENT PREFACE The Departmental Advisory
2014 Construction of Statute Definition of Injury (Causation) Revises Section 50-6-116, Construction of Chapter, to indicate that for dates of injury on or after July 1, 2014, the chapter should no longer
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO THOMAS B. TENHUNDFELD, vs. Plaintiff-Appellant, UNION CENTRAL LIFE INS. CO., Defendant-Appellee, and MARSHA P. RYAN, ADMINISTRATOR,
IN THE ARIZONA COURT OF APPEALS DIVISION ONE STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, Petitioner/Appellee, v. THE HONORABLE RONALD KARP, Justice of the Peace Pro Tempore,
STATE OF MICHIGAN COURT OF APPEALS VALERIE E. SFREDDO and JOSEPH SFREDDO, UNPUBLISHED August 19, 2004 Plaintiffs-Appellants, v No. 249912 Court of Claims UNIVERSITY OF MICHIGAN REGENTS and LC No. 02-000179-MH
The Ohio State University Knowledge Bank kb.osu.edu Ohio State Law Journal (Moritz College of Law) Ohio State Law Journal: Volume 15, Issue 4 (1954) 1954 Law and Medicine: A Report on Interprofessional
ATTORNEY HELP CENTER: MEDICAL MALPRACTICE The healthcare industry has exploded over the last thirty years. Combined with an increasing elderly population, thanks to the Baby Boomer generation, the general
CIVIL MOTION PANEL STATEMENT OF CONSENSUS Current As of November 2, 2004 (Authorities Updated 02/2007) The Civil Motions Panel of the Circuit Court is a voluntary group of judges who agree to take on the
Senate Bill No. 292 Senator Roberson CHAPTER... AN ACT relating to civil actions; providing immunity from civil actions for a board of trustees of a school district or the governing body of a charter school
RULE 42 EVIDENCE AND PROCEDURE AT TRIAL Application (1) This rule does not apply to summary trials under Rule 19, except as provided in that rule. Witness to testify orally (2) Subject to any Act, statute
Franklin County State's Attorney Victim Services FREQUENTLY ASKED QUESTIONS What type of services and information can I get through Victim Services Program? A Victim Advocate will be assigned to assist
Stages in a Capital Case from http://deathpenaltyinfo.msu.edu/ Note that not every case goes through all of the steps outlined here. Some states have different procedures. I. Pre-Trial Crimes that would
SUPREME COURT OF FLORIDA SHIRLEY DOELFEL, ET VIR. vs. Petitioners, CASE NO: 83,218 District Court of Appeal 5th District - No. 93-2808 FILED THOMAS P. TREVISANI, M.D., ET AL. Respondents. I RESPONDENTS',
CHAPTER 7 UNIFORM COUNTY BOARD OF EQUALIZATION PRACTICE AND PROCEDURE RULES Section 1. Authority. These Uniform County Board of Equalization Practice and Procedure Rules are promulgated by authority of
SANDY C. PATTERSON, PLAINTIFF, 2005 ACO #8 S T A T E O F M I C H I G A N WORKERS COMPENSATION APPELLATE COMMISSION V DOCKET #04-0167 BEACON SERVICES, INCORPORATED AND ZURICH-AMERICAN INSURANCE COMPANY,