Part 4 of 5

Sponsored with the Macaronis Institute for Trial and Appellate Advocacy

Date: Thursday, April 17, & 24, (March 27, April 3 & 10) 2003

Location: Suffolk University Law School, 120 Tremont St., Boston, MA
Time: 04:00 PM - 06:30 PM

All litigators, no matter how experienced, grapple with evidentiary issues. Even if you are confident about all the Federal and Massachusetts rules, do you understand the various strategy considerations? Avoiding Evidence Pitfalls is designed to refresh your recollection of the rules of evidence, but also to expose you to the various tactical concerns and to provide demonstrations of how, most effectively, to handle character, impeachment, hearsay, computer/demonstrative and scientific evidence in the courtroom. Each of the five sessions will be presented in a different format to best teach you how to apply the law in that area and to make you aware of its potential impact at trial.

Attend this program and hear judges, professors and leading litigators discuss how they deal with difficult evidentiary problems. This intermediate level course will expose you to the latest cases and developments. Learn the substantive law and practical skills to enable you to get your evidence in and keep the other side’s out.

• How to get in both bad and good character evidence
• When you can you impeach with pending cases or cases that have been dismissed
• When to use hearsay exceptions
• What is the distinction between computer evidence that is a representation and that which is an interpretation
• Whether any expert is immune from Daubert standards

Session I – Character

March 27, 4:00 - 6:30 p.m.

Character evidence may be important for winning over the hearts and minds of jurors. However, there are challenges for both sides in how to handle this type of evidence to most effectively help their case. While character evidence can be a powerful tool at trial, there are also risks involved. You need to know the Federal Rules as well as the rules of Massachusetts. Using a scenario involving abuse, we will demonstrate how to conduct a direct and cross examination. Know how to make the most of this valuable evidentiary tool, no matter which side you represent.

• Are limiting jury instructions are appropriate or required?
• Who should be allowed to testify or introduce evidence
• How do you rehabilitate on character
• Federal Rules 413, 414, 415

Many times in the course of a trial, statements are made that are inconsistent with prior statements. But should you always pounce on this potentially harmful evidence for impeachment purposes? Do you know how to put in evidence of prior convictions? What about promises concerning sentencing? Through a cross examination of a government witness, Attorney Norm Zalkind will show you how to impeach and the panel will discuss the law and strategies involved. Federal rules and Massachusetts practice will be compared.

In-depth discussion will include:

• Convictions
• Bad acts
• Collateral sources
• Promises/rewards/sentencing bargains
• Prior inconsistent statements
• Prior lies in Federal Court
• Investigation prior to examination
• Testimonial faculties

Take the hearsay quiz. As a group, participants will work classic hearsay problems taken from Professor Morgan’s Harvard Law School exam and elsewhere. These problems are designed to sharpen your skills in recognizing the difference between hearsay and non-hearsay, and in working with hearsay exceptions. The quiz format provides an entertaining vehicle to review your knowledge of these important evidence issues.

Professor Michael Avery, Suffolk University Law School, Boston
Honorable Maria I. Lopez, Massachusetts Superior Court

Session IV - Demonstrative Evidence

April 17, 4:00 - 6:30 p.m.

Although computer evidence is becoming more common in the courtroom, not everyone knows how it fits into a trial strategy or even how to categorize it. Do you know how to challenge its admissibility? Do you know what you are required to share with the other side and when? Through a combination of demonstrations of what’s available and discussion of the best practices, you will learn how to effectively use and challenge the use of computer evidence. Attend and learn the law and possible objections and practical strategy issues.

Honorable John J. Irwin, Jr., Director, Macaronis Institute for Trial & Appellate Advocacy, Suffolk U. Law School, Boston
Honorable Stephen E. Neel, Massachusetts Superior Court
Steven M. Bauer, Esq., Testa, Hurwitz & Thibeault, LLP, Boston
Brian J. Carney, Esq., President, WIN Interactive, Plymouth

Session V - Scientific Evidence

April 24, 4:00 - 6:30 p.m.

Lawyers continue to grapple with the law regarding experts and how to satisfy the gatekeeping requirement. How do you measure reliability? What kinds of evidence raise Daubert issues? You will learn how to approach these issues through a demonstration of a direct and cross examination of a forensic psychologist in the area of psychological interrogation techniques.

Attend and learn:

• Current state of the law on experts
• Steps necessary to qualify an expert
• How to cross-examine an expert