Category Archives: Evidence

Daubert Looks To Reliability Of Methodology, Not Data

Almost every litigator has had to deal with the admissibility of expert testimony. In federal court, this means that you deal with Daubert and the reliability of the expert’s work. Many times, I’ve seen motions that argue that an expert’s … Continue reading

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Statements Of Agency Policy Are Not Legal Conclusions

The question of whether a witness’s statement constitutes an impermissible legal conclusion under Evid. R. 704(b) can occasionally be hazy. For example, in Wressell v. R.L. Turner Corp., ___ N.E.2d ___ (Ind. Ct. App. 2013), Cause No. 06A01-1301-PL-5, the parties disputed … Continue reading

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Appellate Court Teaches A Couple Of Advocacy Tips

Full Disclosure – our firm represents the appellees in the case discussed below and I have been part of the litigation team. However, this commentary will not refer to material outside of the Court’s opinion. Occasionally, an appellate opinion can … Continue reading

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Not Every Admission Is A “Judicial Admission”

From time to time, I’ve seen, heard of, and responded to various arguments that this or that statement made by counsel amounted to a judicial admission that could not later be denied. The Indiana Court of Appeals dealt with just … Continue reading

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When Is A Plurality Opinion Binding?

Yesterday, the Indiana Court of Appeals issued its decision in State Auto. Ins. Co. v. DMY Realty Co., LLP, ___ N.E.2d ___ (Ind. Ct. App. 2012), Cause No. 49A05-1109-PL-486. This was an environmental action that hinged, in large part, on … Continue reading

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Who Pays An Expert’s Fee For A Deposition In Federal Court?

I had thought that the answer to this question was obvious: Civ. R. 26(b)(4)(E) states that the party seeking discovery from an expert “pay the expert a reasonable fee.” However, I had never delved into this question deeply as the … Continue reading

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A Meaty Malpractice Case

This blog was hacked last week, which prevented us from being able to tell you about recent decisions all week. However, we are back up and running and are starting out with the Indiana Court of Appeals’s decision in Tucker … Continue reading

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Lawyers Need To Know Their Science

Recently, Judge Hamilton wrote an opinion for the Seventh Circuit, which emphasized that lawyers can’t be scientific illiterates. The dispute in Lapsley v. Xtek, Inc., ___ F.3d ___ (7th Cir. 2012), Cause No. 11-3313, centered on whether a plaintiff’s expert … Continue reading

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Settlement Discussions Admissible to Challenge Settlement

In Horner v. Carter, ___ N.E.2d ___ (Ind. Ct. App. 2012), Cause No. 34A02-1111-DR-1029, the Indiana Court of Appeals clarified one instance in which settlement discussions are admissible under Evid. R. 408. In that case, the Court held that settlement discussions are … Continue reading

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Extrinsic Evidence is Admissible when Witness Does Not Recall Prior Inconsistent Statement

In Dixon v. State, ___ N.E.2d ___ (Ind. Ct. App. 2012), Cause No. 45A03-1110-CR-482, the court considered the circumstances under which extrinsic evidence may be offered for impeachment of a witness.  Evid. R. 613(a) provides:  “Extrinsic evidence of a prior inconsistent … Continue reading

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