Protocols of Litigating a Civil

¶ … protocols of litigating a civil case under American jurisprudence

This paper discusses the techniques and strategy involved in a typical tort litigation. The basic stages of a lawsuit addressed are: Pleadings, motion practice, discovery and trial. The research indicates that a wide range of materials are necessary and vital to a thorough understanding of the lawsuit. It is important that the sources be reputable and representative of the current law and practice in the applicable jurisdiction. Statutes and rules passed by the legislature, prior court cases, commentary from well-accepted and learned legal scholars as well as practical guides and manuals are all necessary to have the complete understanding that otherwise will only come with years of hands on experience.

Table of Contents

Abstract -- a brief summary of contents

Table of Contents

Introduction-General introduction to the paper

Review-Review of research and results

Methodology-Discussing the data & how it was gathered

7

a.) Analysis & findings

Legal Research

Cause of Action

Elements

Pleadings

Complaint

Jurisdictional allegations

Factual allegations

Stating the cause of action

Prayer for relief

Service of Process

Answer

Deny/Admit/Without Knowledge

Aff. Defenses

Counterclaim

Reply

Motions

Attack Pleadings

Rule 12(b)(6)

Judgment on Pleadings

14

Procedural

14

Discovery

14

Summary Judgment

15

Discovery

16

Scope

16

Types

17

Interrogatories

17

Production

17

Admissions

18

Depositions

18

Experts

Deadlines/Sanctions

19

Mediation

19

Trial Order

21

Trial calendar

21

Disclosures

21

Deadlines for remaining discovery and motions

21

Trial

Jury Selection/Voir Dire

22

Opening Statements

22

Evidence

23

Admissibility

23

Documents

23

Direct

24

Rebuttal

24

Character

24

Expert

25

Form of questions

25

Objections

26

Directed Verdict

27

Closing Arguments

27

Jury Instructions

28

Verdict

29

b) Conclusion

29

VII. Reference sources

30

Introduction

This essay will identify and explore the basic essential elements to American tort litigation. It is intended to be as broad as possible and will use the Federal Rules of Civil Procedure and the Federal Rules of Evidence as the legal basis. There is no uniform civil procedure code throughout the states, though most states have adopted their own rules of civil procedure or civil codes that conform to the basic tenets of the federal rules.

Regardless of the tort involved, the plaintiff (the party making the claim and seeking relief from the court) must prove the elements of the tort using admissible evidence. The elements will always involve a wrong committed by the defendant and damages suffered by the plaintiff. The defendant will defend the lawsuit on the basis that he/she did not commit a wrong, the wrong was justifiable and/or excusable or that the wrong resulted in no damage to the plaintiff.

Whether or not evidence is admissible is determined by the Federal Rules of Evidence. Like with the procedural rules, states adopt their own evidence code, usually modeled after the federal rules. The admissible evidence is obtained through the process of discovery. In this process, parties and witnesses must provide truthful information as to how they will testify at the trial, as well as produce certain requested documents. This process enables all the parties to the lawsuit know the relative strengths and weaknesses of their case.

Once the evidence is obtained, the parties proceed to trial. A judge or jury hears the evidence and determines whether the plaintiff has proved the required elements and/or if the defendant has proved any defenses. If the plaintiff wins, she gets a judgment in her favor which she must then satisfy. This essay will explore all of these topics and issues in detail.

Review

The principal sources used in this essay were the Federal Rules of Civil Procedure, the Federal Rules of Evidence and the legal encyclopedia, American Jurisprudence. The Rules of Procedure set out the different stages of the litigation and set forth the requirements for conduct during each stage and the sanctions or penalties for not adhering to the rules.

The Rules of Evidence determine which evidence (including oral testimony and written documents) will be allowed to be used by a party in proving their case. The general rule is that relevant evidence is allowed. The Rules of Evidence define more specifically which evidence is relevant and which is not.

American Jurisprudence describes how the courts have interpreted these rules when issues have arisen in actual lawsuits. The comments explain the purpose of the rules and give practical advice as to how the rules actually work. These comments are in the form of summaries of case law opinions which have defined the basic concepts and components of an area of law, including the procedures and aspects of the trial itself.

A number of secondary sources were consulted to provide authoritative analysis of the typical tort litigation. While many of these sources were obtained from the internet, only those sources which are provided by government agencies or government sanctioned entities (such as a state's bar association) or well established trade organizations (such as the American Bar Association) and therefore have some inherent credibility were referenced.

Methodology

Analysis and Findings

This essay does not purport to define typical tort litigation in terms of federal or state law, but rather to present the typical tort litigation considering all of the jurisdictional distinctions. A thorough review of the Rules reveals that typical tort litigation has the following stages: Pleadings, Motions, Discovery and Trial. Within the pleading the stage it is necessary to properly identify all of the other parties and the elements. These elements must also be properly specified in the pleading. Finally, the pleading must be properly served on the other parties to the lawsuit. Thus, while 'Commencing an Action' and 'Parties' are treated separately under the Rules, they are dealt with in this essay as part of the Pleadings.

The Rules also clearly specify the procedures for filing motions. Motions settle disputes within the lawsuit. Many motions are directed toward the pleadings and seek to have the pleadings nullified and/or dismissed. Nonetheless, they are usually filed after the pleadings are filed and are therefore treated separately in this essay. Also, many motions are designed to resolve discovery and trial issues and have no impact at all on the pleadings.

Legal Research

The legal research really begins in the initial client interview. The attorney and/or paralegal should elicit specific information about the 'incident' sufficient to identify which tort(s) can be plead and what the damages are. The initial interview should also reveal who the potential witnesses are both for and against the client. Finally, the law firm should probe deep enough in the interview to identify potential problems in the case such as facts that can give rise to affirmative defenses.

Once the client has been thoroughly interviewed, the proper torts must be identified. Here the legal encyclopedias (such as American Jurisprudence) can help. They are designed to describe what types of fact patterns have and have not been held by courts to qualify as torts. Legal encyclopedias are considered secondary legal authority and (unlike secular encyclopedias in academic research) may be cited to provide clarification to legal issues.

The tort of negligence, for instance, has four elements that must be proved: Duty, breach of duty, causation and damages (Am Jur Negligence §71). The element of duty requires the Plaintiff to prove that the Defendant was obligated to do something he did not do, or obligated to not do something that he has done. A person is obligated to use reasonable care when operating his vehicle. The term reasonable care will be defined to mean a different standard in different locals depending on that jurisdictions laws and community standards, and often times is left to the jury to determine. (Am Jur Negligence §135).

The second element is breach of the duty. In a car accident case, the Plaintiff will have to prove that the defendant did not exercise reasonable care in operating his vehicle. The third element is causation; the breach of the duty must have led directly to injuries suffered by the Plaintiff. The fourth element is damage; the Plaintiff must show that he or she was injured in a manner that is compensable and that the injury was the direct and foreseeable result of Defendant's tortious conduct.

There may be more than one tort committed and in that instance the lawyer/paralegal will need to conduct additional research to determine the elements of the other torts.

Pleadings

Complaint

Once the research has been done, the pleading (lawsuit) needs to be drafted. Most civil lawsuits commence with the complaint. The complaint must identify the proper defendant(s), such as any person or entity that has legal liability (Am Jur Parties §51). The complaint should be composed in separately numbered paragraphs, with each paragraph being a single sentence or single thought to the extent practical (Fed. R. Civ. P. 10(b)).

The complaint also must set forth certain jurisdictional allegations (Am Jur Pleading §171). Some of these allegations concern personal jurisdiction. The person sued must be over 18 and of the requisite mental capacity to be sued. The defendant must subject themselves to the jurisdiction of the court by way establishing sufficient minimum contacts in that jurisdiction. This is usually a low standard to achieve. As long as a person acts in a way which avails the person of the protection of the laws of that state, that person has subjected themselves to the jurisdiction of that state (International Shoe).

Next, the complaint will allege subject matter jurisdiction, i.e., that the lawsuit fulfill the requirements for this court to hear it? Pertinent requirements can include how much money haws plaintiff sued for or whether the case poses a question about a federal statute or the U.S. constitution. In many cases involving litigants from different states, the Plaintiff will allege that he is suing the Defendant for an amount greater than $75,000.00, which is the minimum monetary amount for federal subject matter jurisdiction (Title 28 U.S.C. § 1332(a)) and that the Plaintiff does not reside in the state in the same state as any defendant (Am Jur Pleading §177). This creates diversity of citizenship and fulfills subject matter jurisdiction for federal court.

The complaint must also allege that the proper venue has been chosen (Am Jur Pleading §174). This typically refers to the location of the court where the lawsuit is filed and will be tried. Proper venue will generally lie in the courthouse which is located in the same judicial circuit as any of the defendants or where the events giving rise to the cause of action occurred or where the parties agreed to submit to venue, by way of a contract, for instance (Am Jur Venue §1-35).

The Plaintiff will then allege the facts which occurred that meet the required elements of the tort (Fed. R. Civ. P. 8(a)). In the negligence example, the Plaintiff will allege that the defendant drove his vehicle into the rear end of Plaintiff's vehicle, thereby breaching his duty of due care and in so doing causing damage to the person and property of defendant.

The Plaintiff will repeat this for all torts she is suing for (Am Jur Pleading §177). If there are more than one defendants, the Plaintiff can claim that either is liable for the full amount of the claim or that together they are liable for the full amount. This is known as joint and several liability. The Plaintiff will also include a 'demand for judgment' at the end of the lawsuit which asks for the court to award the damages plead for (Am Jur Pleading §202).

After the lawsuit is filed with the proper court, it must be served on the Defendant with process (Fed. R. Civ. P. 4(c)). 'Process' is the term used for the notification that is delivered with the complaint which places the Defendant on notice that the complaint is a lawsuit and that it must be responded to in writing. The process is usually delivered via a document called a summons (Fed. R. Civ. P. 4(a)).

Answer

According to the Rules, the Defendant(s) has twenty-one days to file a written response to the lawsuit (Fed. R. Civ. P. 12(a)(1)(a)(i)). If no response to the lawsuit is filed, the Plaintiff can seek a default and a default Final Judgment, which awards the damages the Plaintiff is seeking (Fed. R. Civ. P. 55(a) and (b)). In its response, the Defendant responds to each numbered paragraph of the complaint by stating that the specified numbered paragraph is admitted, denied or that Defendant is without knowledge as to that allegation (Fed. R. Civ. P. 8(b)).

Any allegation admitted in the answer is deemed true for the rest of the proceedings and does not require further proof (Fed. R. Civ. P. 8(b)(6)). All allegations not admitted must be proved by the Plaintiff. The Defendant will also assert any applicable affirmative defenses in its answer (Fed. R. Civ. P. 12(b)). An affirmative defense admits the Plaintiff's allegations, but otherwise denies defendants liability (Am Jur Pleading §350). An example of this is comparative negligence, which attempts to reduce the amount of damages due a tort victim by their own negligence (Comparing Fault): The driver/plaintiff was not wearing her seat belt and thus the negligence of the driver contributed to her injuries. The Defendant's lawyer will research the defenses in the same fashion the Plaintiff's lawyer researched the torts. The Rules state that any affirmative defense not asserted in the answer is deemed waived (Fed. R. Civ. P. 8(h)).

Counterclaim

If the defendant believes that Plaintiff has damaged or injured him, he will also include a counterclaim in his answer (Am Jur Counterclaim §1). If the factual basis of the counterclaim is the same as the factual basis for the complaint, the counterclaim is considered compulsory and if it is not filed with the answer it is deemed waived (Fed. R. Civ. P. 13(a)). A non- compulsory, or permissive, counterclaim can be filed any time until the statute of limitations in question expires (Fed. R. Civ. P. 13(b)).

Reply

Sometimes, the Plaintiff will file a reply to the answer seeking to avoid the affirmative defenses, deny any matters raised in the answer or raise new matters necessitated by allegations and issues raised in the answer (Am Jur Pleading §418). Assuming that no counterclaim has been filed, the reply is the final pleading and upon its filing or the expirations of the time for its filing, the pleadings are closed. A counterclaim must be answered (and at the option of the counterclaimant, replied to), and then the counterclaim's pleadings are closed.

Motions

Motion practice is like a trial within the trial. Disputes often arise among the parties regarding the issues and procedures within the lawsuit. These disputes are addressed through motion practice. Most courts require motions to be submitted in writing and a hearing be scheduled for the judge to hear the evidence and arguments pertaining to the motion (Am Jur Motions §6; Fed. R. Civ. P. 7(b)(1)). Motion are decided by the judge and not tried by a jury (Am Jur Motions §31).

There are several basic categories which most motions fall under. The first is motions directed to the pleadings. These motions will often assert that the pleadings are not sufficient or defective, or that other fundamental procedural requirements have not been followed. Most states have statutes and/or rules of procedural which model the Federal Rules of Civil Procedure.

Federal Rule of Civil Procedure 12 (b)-(e) outlines the motions which may be raised against the pleadings. A motion to dismiss is commonly filed as a defensive motion to an insufficient or defective pleading on the following grounds:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19.

These are the defensive motions authorized by Rule 12(b). If not raised in the initial defensive pleading, or before by separate motion, they are deemed waived.

In a typical case, if the motion for the above is granted, the case will be dismissed without prejudice. When a case is dismissed without prejudice it can be re-filed as a matter of right by the plaintiff in order to cure the defect (Fed. R. Civ. P. 41(b)). If the motion is granted as to the process or service of process, the remedy may be to have a new summons issued and the complaint re-served on the defendant(s).

Other Rule 12 motions directed at the pleadings include motions for a more definite statement (when certain allegations or aspects of the complaint are unclear, vague or ambiguous), motion for judgment on the pleadings (when the complaint and answer make it clear that plaintiff is entitled to the relief sought) and a motion to strike impertinent or scandalous allegations (the court can also do this on its own volition). All Rule 12 motions must be made concurrently and before (or as part of) the responsive pleading or they are waived (Fed. R. Civ. P. 12(g)(2)).

Another basic category of motions is directed towards discovery. These include motions to compel, motions for protection and motions for sanctions. These motions are discussed below under the discovery discussion. Similarly, many types of motions are designed to narrow the issues or exclude/admit evidence in the actual trial itself.

The motion for summary judgment is, in many lawsuits, the most significant motion. By way of summary judgment a party seeks to obtain, or avoid, judgment without a trial (Am Jur Summary §1). A summary judgment should be granted when the pleadings, together with all the evidence on the record, show that there is no triable issue of justiciable fact and that the moving party is entitled to judgment as a matter of law (Fed. R. Civ. P. 56 (c)(2)).

The evidence and arguments for summary judgment is viewed in a light most favorable to the non-moving party. It can be granted as to all or only some of the issues, including damages (Fed. R. Civ. P. 56 (d)). The evidence on the record consists of all the discovery, exhibits and affidavits filed with the court. Typically, strict time requirements apply as to when such a motion can be filed, when the motion can be heard, and when the supporting and opposing record documents must be filed and served on the parties (Fed. R. Civ. P. 56 (c)(1)).

Motions for summary judgment in many respects are like miniature trials. While there is no witness testimony, the lawyers make opening and closing statements, introduce evidence and make arguments of law (Fed. R. Civ. P. 56 (d)(1)). Often times, lawyers will draft and submit a memorandum of law in support or opposition of the motion. Motions for summary judgment can be quite effective as facilitating a settlement of a case if the other side feels that the judge might grant the motion. Likewise, the denial of a motion for summary judgment (usually one filed by the defendant) can facilitate settling a case because the defending party faces exposure at a trial that they would like to limit.

Discovery

Discovery is often the most important and time consuming aspect of a lawsuit. Discovery is the act of searching for and obtaining evidence. Evidence is the oral testimony, written documents, and other tangible things which tend to prove a fact is or is not true (Am Jur Evidence §1). The reason for seeking discovery is to indentify as specifically as possible all of the strengths and weaknesses in the evidence of the opposing party's case, as well as the propounding party's case (Am Jur Deposition §1).

The scope of discovery is very broad. For information to be discoverable, it does not have to be legally relevant. Legally relevant means that the information or evidence in question tends to objectively prove or disprove a material fact more so than it colors a fact-finders opinion for or against a party or issue for other reasons (Fed. R. Evid. 401 and 402). Evidence must be legally relevant to be used in a trial, that is, the evidence must be more probative than prejudicial. While information does not have to be legally relevant to be discoverable, it does have to be reasonably calculated to lead to legally relevant, or admissible, evidence (Am Jur Deposition §22).

Discovery may be sought against parties, who are automatically subject to the discovery rules, and non-parties who must be served a subpoena along with the discovery request in order for their response/appearance to be required (Fed. R. Civ. P. 45 (2)(b)). The attorney of record who is propounding the discovery may issue the subpoena on his own authority as an officer of the court (Fed. R. Civ. P. 45 (3)).

Discovery in federal cases differs from most state actions in two significant respects. First, federal lawsuit parties are required to make certain disclosures as to witnesses, documentary evidence and theories of liability or defense without a request (Fed. R. Civ. P. 26 (a)). There is no such requirement in most states. Second, the parties in a federal lawsuit must confer through their attorneys and develop a mutual discovery plan (Fed. R. Civ. P. 26 (f)(3)). This is not required under most state rules.

Parties typically always serve some form of written discovery on the opposing parties. There is a need to not only identify the specific evidence and theories that will be offered by the other side, but also to 'pin them down' to certain answers and positions that they later cannot disclaim. The general idea is that each party uses the discovery process to ensure that there are no surprises at trial (Am Jur Deposition §1).

Discovery takes several basic forms. Interrogatories are often the starting point in discovery requests between parties. Interrogatories are written questions which elicit usually standard information and are authorized by Federal Rule of Civil Procedure 33. Many jurisdictions, such as California and Florida, have standardized 'form interrogatories.' These interrogatories typically cannot be objected to and must be the first written questions asked unless permission of the court is granted. The typical information requested in standard interrogatories includes the personal/background information of the answering party, theories of the liability or non-liability of both the answering and the propounding parties, damages suffered by the alleged tortious behavior, previous lawsuit involvement by the answering party and so forth (Fla. R. Civ. P. And Cal. C. Civ. P.).

The second form of discovery which often seeks to discover preliminary and background information is the request for production of documents and things. The Rule allows for a party to require the opposing party to deliver copies or originals (for inspection and copy) of written documents and other tangible things (including charts, photographs, models etc.…) (Fed. R. Civ. P. 34(a)). Many times, such a request will require the answering party to produce hundreds or thousands of documents.

Another form of discovery is the request for admissions (Fed. R. Civ. P. 36). This discovery tool is used to narrow what facts and issues need to be proven by a particular party. They are used for both issues of fact and law, as well as to admit or deny opinions and the authenticity of documents. The added importance of the request for admissions is that the prevailing party in the lawsuit can seek to tax the costs of proving any request for admission that was denied by the losing party (Fed. R. Civ. P. 37 (c)(2)). This is done by motion by the prevailing party at the conclusion of the lawsuit. Therefore, a party will often propound requests for admissions not only to help the gathering of evidence, but also to potentially recoup some of the costs of litigation should their side win the lawsuit.

Depositions are the main discovery tool used for the personal interrogation of the opposing parties and witnesses. The deponent is sworn under oath by a court reporter. The opposing attorney then asks questions of the deponent. Depositions are vital to prepare the attorney for how that party will testify at trial. Because, they are under oath and will be committing perjury if they lie, the attorney can safely rely on the testimony given at deposition as to what how witness will testify at the trial (Fed. R. Civ. P. 30 (b)(5)(a)). Depositions are transcribed by the court reporter and then sent to deponent in most cases to review them for corrections and changes.

From time to time disputes and issues arise within the discovery process which requires the judge's assistance. Once a discovery request has been served, the answering party is required to answer unless a protective order is obtained from the court (Fed. R. Civ. P. 26 (c)). A party will seek a protective order if the information sought is beyond the scope of discovery (that is not reasonably calculated to lead to admissible evidence), if responding is overly burdensome or if the discovery is harassing, cumulative or other good cause.

If a party does not respond to a discovery request in a timely fashion, the asking party can seek an order compelling the answering the party to respond. The court has the power to enter certain sanctions against a delinquent party, including an award of attorney's fees, striking the pleadings of a party and ultimately dismissing an action or entering default judgment in favor of the non-offending party (Fed. R. Civ. P. 37(a) and (b)).

Mediation

In a typical litigation, most parties voluntarily submit to mediation. In a growing number of state jurisdictions, mediation has become mandatory. Mediation is a settlement conference which is conducted by an independent third party called the mediator. The mediator attempts to broker a settlement that all parties agree to and puts an end to the litigation (Alternative dispute resolution, 2010).

Mediation, and mediated settlement agreements have many advantages. First, it ends the lawsuit, which is usually good news for the litigants. An end to the lawsuit brings an end to the expenses and inconveniences (such as having to attend depositions and conferences, usually in lieu of going to work) associated with the litigation. Second, it gives the litigants control over the outcome, whereas if the case proceeds to trial, the judge or jury will be making the decision as to how much the litigants do or do not receive or owe. Third, mediation often preserves relationships by resolving the case before the relationship is irreparably severed and before there is a winner and a loser (Alternative dispute resolution, 2010).

A mediation conference is usually conducted after discovery has been completed and before trial. It is important that discovery be completed in most cases. This is because cases usually only settle in mediation when the parties are accurately aware of the strengths and weaknesses of their case. It is important for mediators to accurately identify what factual and legal issues work toward each party's advantage or disadvantage. This is the why the mediator should be an expert in the field, either a practicing lawyer or a retired judge usually make the best mediators (Alternative dispute resolution, 2010).

The court will retain jurisdiction to enforce a mediated settlement agreement. Many mediated agreements are bound by a confidentiality agreement. Specific rules of evidence bar mediation negotiations from being used as evidence. If no agreement is reached at mediation, the litigants are in the same position as before the mediation and proceed to trial.

Trial Order

A trial order is an important part of the lawsuit because it sets forth the deadlines and time frames for the remainder of the lawsuit. Thus, the trial order becomes the road map and the rule book for the lawsuit. A trial order is filed by the judge after the judge receives a notice for trial stating that the case is at issue. The case is at issue when the pleadings (complaint, answer and reply) have all been filed and all parties served with the summons and complaint.

The trial order will typically indicate which trial calendar the case has been assigned. A trial calendar is a 2-4-week span during which the judge will try cases that are ready for trial. Usually the judge will require all lawyers to attend a calendar call one or two weeks prior to the trial at which time the judge will ask all parties if they are prepared for trial (and if not, why not) and how long they suspect the trial will take. The judge will schedule as many trials as he can into the calendar and the cases which do not make the present calendar get 'rolled' to the next one (Altonaga).

Each judge can fashion his or her own trial order, but the trial order will generally require the parties to complete discovery by a certain date, attend mediation (after agreeing upon a mediator) and resolve remaining motions prior to trial (either by agreement or through the judge). The trial order may also require that expert witnesses be disclosed along with expert witness reports and that a pre-trial conference be held to discuss any unresolved issues related to discovery, evidence, mediation etc.… (Altonaga).

Trial

Jury Selection

If either litigant requested a trial by jury in their pleadings, the first stage of the trial is jury selection. A pool of prospective jurors is brought to the courtroom and seated in the jury box. The attorneys for each party then question the members of the panel to determine if they would make the 'right' juror for their client. Whether or not a prospective juror would make the right juror is a very subjective analysis which will differ greatly from lawyer, however in most instances, the attorney will seek a juror who is sympathetic toward his or her client or not sympathetic toward the opposing party (Steps in a trial).

Each party is allowed to decline to have a juror serve by way of a 'challenge.' Each party can challenge up to three potential jurors without offering a reason, otherwise known as peremptory challenges. A party can raise an unlimited number of challenges for cause. Challenging a juror on the basis of race or sex or some other legally protected classification (even with a peremptory challenge) is never allowed (Steps in a trial).

Opening Statements

After a jury has been selected and sworn (or if there is no jury, at the onset of the trial), each lawyer gives their opening statement, during which they summarize the evidence that will be provided and how it will entitle their client to judgment. The plaintiff's lawyer offers the first opening statement, followed by the defendant (Steps in a trial).

Evidence

The next step in the trial is to introduce evidence for the jury to evaluate. The evidence rules which were talked about briefly earlier in this essay are now of pivotal importance. As a party seeks to introduce evidence, the opposing party will often object to its introduction on the grounds of certain evidence rules. There are several different forms of evidence and each of them are associated with specific objections.

Prior to the start of most trials, the parties have already presented their documentary evidence to the trial clerk for identification. When the party seeks to introduce the exhibit to the jury, the opposing party will object if they feel the exhibit is not legally relevant (Fed R. Evid. 402), a product of heresay (Fed R. Evid. 802), not an accurate copy or depiction of what it purports to be (Fed R. Evid. 901) or for some other reason specified in the applicable evidence rules.

The judge has the final say as to whether the item is admissible evidence. As with nearly every decision the judge must make in the course of a trial, the party who is ruled against may appeal this decision after the trial so long as the proper objection is lodged when the issue arises.

Aside from documentary (and other tangible) evidence, the parties will also introduce evidence in the form of testimony. Testimony is given by parties and non-parties in the form of information which will help the jury determine whether certain are or are not true. Testimony is often subjected to hearsay objections. The basic definition of hearsay is when a witness testifies as to an out of court statement, made by someone other than the witness, offered by the witness for the truth of the matter asserted (Fed R. Evid. 801). There are several exceptions to the hearsay rule which will allow the witness to quote someone else in court (Fed R. Evid. 803).

While documentary and testimony are the form that evidence takes, the types of evidence are direct, rebuttal and character. Direct evidence is used to prove or disprove a fact in issue at a trial (Steps in a trial). Examples of direct evidence include proving one's location, motivation or mental status. Rebuttal evidence is used to lessen the impact of direct evidence. Examples of rebuttal evidence include testimony which contradicts an earlier witnesses testimony or an expert report which disagree with a previously submitted report.

The third type of evidence is character evidence. In most instances character evidence is not admissible (Fed R. Evid. 404). The rules do however permit the jury to make inferences as to the credibility and honesty of a witness with evidence of behavior that is seemingly unconnected to the lawsuit itself (Fed R. Evid. 608(b)). Special rules of evidence allow the opposing party to ask about previous 'bad acts' of a witness and then to instruct the jury that it may deem the witness is not credible due to it having committed the prior bad act (Fed R. Evid. 609). The prior bad acts which may be used are usually limited to acts involving dishonest behavior and felony convictions (less than 10 years old).

Once a party puts the bad character of a witness or party in issue, that witness may introduce evidence of his or her good character. However, evidence of good character cannot be introduced until the opposing party has 'opened the door' by introducing evidence of the bad character (Fed R. Evid. 608(a)).