Nov. 5, 2014 – If you’re a trial lawyer, you plan your evidence well in advance – gathering exhibits, lining up witnesses, anticipating how to handle your opponent’s evidence. You and your opponent will try to resolve admissibility issues long before a trial begins, and you will pore over the transcripts after an unsuccessful trial, looking for appealable evidentiary errors. Wherever you are in a case – working through a motion in limine before trial, raising an objection at trial, or claiming an evidentiary error after trial – the State Bar of Wisconsin PINNACLE’s The Wisconsin Rules of Evidence: A Courtroom Handbook can help you pinpoint and address the essential issues.
Ask yourself key questions before trial, such as: Do I need an expert? What foundation testimony do I need for my evidence?
Although the Evidence Handbook is designed principally for use at trial, attorneys should be using the handbook at even the pretrial stages to develop a case. If, for instance, the attorney must decide whether to present expert evidence in a malpractice case, this is what the Evidence Handbook has to say: “Expert testimony is required to establish the standard of care and breach of duty …, unless the breach either is so obvious that it can be determined as a matter of law or is within the ordinary knowledge of a layperson.”
If the issue is the authenticity of audiovisual evidence, the Evidence Handbook summarizes the following principle: “The videographer’s testimony that the videotape fairly and accurately portrays what he or she saw is sufficient.” The Evidence Handbook provides citations to key cases addressing these evidentiary matters and others that might arise before trial.
Be ready to raise or respond to objections at trial
Despite your efforts to use discovery to gain insights into your opponent’s theory of the case, you’ll see the full picture only after a trial is under way, when attorneys make their arguments and witnesses give their testimony. That means, among other things, that attorneys must be familiar with the rules and cases in the Evidence Handbook’s chapter on impeachment and character witnesses. Section 906.08(1) of the Wisconsin Statutes provides that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” An opening statement’s assertions about a witness can satisfy this requirement, as the Evidence Handbook explains, if, “viewing the attack on the witness in its context, the trial court believes that a reasonable person would consider the attack to be an assertion that the witness is not only lying in this instance, but is a liar generally.”
Know the trial court record you must make to preserve your arguments after trial
You must preserve your right for any possible appeal in your case, and to do that you must create an adequate record to preserve your arguments on appeal. The Evidence Handbook provides case annotations interpreting the evidentiary rules that govern making a record of trial objections. For example, “[t]o preserve an issue for appeal, objections must be made before the jury verdict is returned.” The Handbook also addresses related matters concerning waiver and forfeiture, e.g., “failure to timely object to the calling and interrogating of a witness by the judge outside the presence of the jury constitutes a [forfeiture] of the right to object and of any claim of error. An objection must be made at the time of alleged misconduct.”
Updated for 2014
The Handbook’s authors – the Hon. Thomas H. Barland (reserve judge) of Eau Claire and Attorney Michael J. Brose of New Richmond – have identified and annotated the most significant evidence-related cases decided since publication of the 2013 revision of the book, decisions in which Wisconsin’s appellate courts have refined their interpretation of the rules of evidence governing matters such as expert testimony, “other acts” evidence, and hearsay. The 2014-15 supplement also updates the text of the Wisconsin Rules of Evidence to reflect all amendments through the 2013-14 regular session of the Wisconsin Legislature.
If you argue cases, you need the Evidence Handbook – order today!
Finding the relevant rules and cases is quick and easy, whether you’re looking in the print book – with its unique topical guide, clearly identifying the chapters where readers can find specific rules and accompanying annotations – or whether you’re searching online (via Books UnBound®). For pricing, more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838. Subscribers to the Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $149 per title (single-user price; call for full-library and law-firm pricing).
