Admitting Records in Business Trials

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A business trial lawyer’s case lives and dies on getting communications and records into evidence. While injury cases may focus on accident or surgical reconstruction, photos and videos, medical records and lost wages, business evidence weighs toward communications, contracts, financial statements and expert damage calculations. The challenge is getting those records into evidence over objections that they constitute inadmissible hearsay.

Let’s start with hearsay basics: Hearsay evidence is a statement made other than by a witness testifying at the trial offered to prove the truth of the matter stated. Cal. Ev. Code § 1200(a).

Statement of independent or operative significance

Certain statements may have independent legal significance and are therefore not offered for the truth of the matter stated. read more

Making Business Cases Relatable: Lessons from High School

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“Consumer” trial lawyers handle situations that an average juror may have personally experienced or at least can relate to – for example accidents resulting in injuries, negligent medical treatment, sexual assault or harassment or employment discrimination. The human element is immediately apparent, and the stakes feel personal.
“Business” trial lawyers, by contrast, often handle situations that a judge or average juror may never have personally experienced and could have trouble understanding – investment fraud, director or officer liability, breach of fiduciary duties, contract or licensing, infringement of intellectual property or non-medical professional negligence. These cases can feel abstract, removed from everyday experience, and frankly, less sympathetic. read more

High Stakes Entertainment Litigation – Lessons Learned

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Spillane Trial Group was delighted to be selected to defend Cross Creek, a top independent film producer whose first effort was Academy Award winner “Black Swan,” in a case eminently heading toward trial filed by French entertainment giant Studiocanal.   A Cross Creek entity had contracted with Studiocanal to pay $5 million for rights to distribute “Legend,” a British Tom Hardy gangster film, in the U.S. and Canada.  Concerned that Universal’s limited release plans for “Legend” frustrated the expectations of the film’s U.S. investors, Cross Creek returned the investment funds rather than pay Studiocanal.  Studiocanal obtained a judgment for breach of contract, then initiated action against numerous Cross Creek entities and insiders with omnibus theories including fraud, successor liability and intentional interference with contract.  read more

Cross-Examination Revisited

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Some years ago, I blogged about “Effective Cross-Examination at Trial.”  I stand by those comments, but my technique has evolved. 

Some of my colleagues cross from a word-for-word script, including full printouts of the impeaching testimony or exhibit, but I prefer a simple outline, to make the cross more organic.  I have a summary of the point I want to establish in the left column and citation to the impeaching deposition testimony or trial exhibit in the right.  Absent a budget concern I always take videotaped deposition, which should result in an impeaching video clip ready in the trial display system as needed. read more

Direct Examination – Fact Witnesses

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Your client’s case is presented primarily through “direct” examinations, those where your witnesses tell your side of the story in their words. 

Advance Planning

Before meeting with your witnesses to prepare, you should have developed your case “theme,” possibly through a mock jury.  This is a plainspoken statement of why your client’s position is just, made in terms the Starbuck barista can understand.

I pull together the most important exhibits, assemble them in chronological order and invite all my witnesses to assemble for a “walk-through talk-through.”  The witnesses may have touched upon different aspects of the dispute, but likely never met together to obtain a global picture.  read more