As members of trial teams, paralegals participate in the presentation of evidence. For a case in chief, the types of materials needed are dictated by the elements of the cause of action and are thus presented on direct. But what kind of exhibits can be used effectively on cross examination?
- Prior inconsistent statements
There is a tendency these days to comb depositions for slight contradictions. However this category is much broader than prior testimony. A Facebook posting of the family's ski vacation taken at the top of a mountain is an inconsistent statement. It says a personal injury plaintiff is healthy enough to lug equipment up lifts and ski down mountains. Likewise a cheery Christmas letter posted online suggests that all is well. A medical history that fails to mention the injuries from an automobile accident can qualify as prior inconsistent statements.
Admissions of party's opponent are not hearsay. Limited only by authentication and relevance, anything a party has ever written or said can be used by the other side. Admissions are not limited to statements against interest or penal interest. If it is said or written by a party or a party's representative and it is relevant, it comes in. When the opposing party is a corporation, look for admissions in the press, in correspondence and on social media.
- Adoptive admissions
One of the most unusual kind of admissions is the adoptive admission. An admission is adoptive if something is said which is made to or in the presence of a party, is understood by the party, and is the kind of statement which if heard by a person that person would normally deny it if it was untrue, but the party did not. For instance a statement to a party, "My brother saw you cheating on an exam" which is met by silence (or a smile) is an adoptive admission.
- Ancient records
An ancient record doesn't have to be that old. Rule 803 (16) of the Federal Rules of Evidence provides for the admission of "Statements in Ancient Documents. A statement in a document that is at least 20 years old and whose authenticity is established." Old newspaper and magazine articles are most fertile source of admissible evidence to be used in cross.
G. Ware Cornell Jr. is a Board Certified Civil Trial Lawyer in Weston, Florida where he primarily practices employment law with the firm of Cornell & Associates P.A. He is a graduate of Emory University and the University of Georgia School of Law, and served as the first senior law clerk for United States District Judge William M. Hoeveler in the Southern District of Florida upon his investiture in 1977. Mr. Cornell is a Senior Fellow of the Litigation Counsel of America, a trial lawyers' honorary society. He is a Florida Super Lawyer in the field of Labor and Employment Law and is AV Preeminent rated by Martindale-Hubbell. He has tried approximately two hundred civil trials to verdict and regularly lectures on trial practice and employment law.
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