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The Dirty Dozen:

Twelve Common Louisiana Evidentiary Issues

Hon. Susie Morgan, USDC, Eastern District of Louisiana R. Keith Jarrett, rkjarrett@liskow.com

John Jerry Glas, jerry@deutschkerrigan.com

Introduction1

Every case is unique, but twelve evidentiary issues routinely rear their unkempt heads

during personal injury actions. These “dirty dozen” evidentiary issues are:

1. Surveillance video & audio recordings; 2. Online posts & comments; 3. Unverified pleadings & discovery; 4. Deposition transcripts & drawings; 5. Traffic tickets & guilty pleas; 6. Draft expert reports & emails to experts; 7. Employer investigations & root cause analysis; 8. Accident reconstruction videos & courtroom demonstrations; 9. Medical illustrations and surgical videos/photographs; 10. Trial transcripts of opening statement & witness testimony; 11. Flip pads & fill-in charts; and 12. Prior & subsequent settlements

Knowing the law governing the discoverability and admissibility of the dirty dozen can

be an advantage at every stage of litigation. How many mediations are derailed by disagreements

over their admissibility? How many hours of trial preparation are wasted on unnecessary and

unsuccessful motion practice? How many evaluations, expectations, reserves, and settlement

offers are (testily) changed after a motion in limine ruling? How many trials are started without

knowing how the court will rule on the inevitable objection?

Like their namesakes, the dirty dozen are dangerous. Undetected or ignored, they can

wreak havoc on your litigation. Get to know them! Get control over them!

1 This handout should not be construed as legal advice and is intended only as a starting point for your analysis and briefing of the “dirty dozen” evidentiary issues. Any opinions expressed in this article are the opinions of John Jerry Glas, Esq. and/or R. Keith Jarrett, Esq., and should not be attributed to the Honorable Susie Morgan, whose name appears herein because of her role as a Co-Presenter at the 2016 Masters of The Courtroom CLE on December 15, 2016. Nothing in this article should be cited, quoted or referenced as having been held, concluded, asserted, or approved by Judge Morgan with regard to any evidentiary issue.

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1. Video & Audio Recordings

a. All Surveillance Must Be Produced Prior To Trial In Federal Court.

The seminal case in the Fifth Circuit regarding the production of surveillance videotape

remains Chaisson v. Zapata Gulf Marine Corporation, 988 F.2d 513 (5th Cir.1993), where the

Fifth Circuit held that surveillance videotape is both substantive and impeachment in nature, and

should be disclosed prior to trial. Fifteen years after Chaisson, the Fifth Circuit clarified its

holding in Baker v. Canadian National/Illinois Central Railroad, 536 F.3d 357 (5th Cir.2008),

where the court upheld the district court's admission of surveillance videotape disclosed after the

discovery cutoff.

In Baker, supra, “[t]he court distinguished the facts in Baker from the facts in Chaisson,

noting that the videotape in Baker was produced nine to ten months before trial, and therefore,

properly admitted as substantive evidence.” Campbell v. Chet Morrison Contractors, LLC, No.

CIV.A. 11-1358, 2012 WL 3028079, at *6 (W.D. La. July 24, 2012), aff'd sub nom. Campbell v.

Chet Morrison Contractors, L.L.C., 532 F. App'x 589 (5th Cir. 2013)(citing Baker, 536 F.3d at

369). In so doing, the Fifth Circuit clarified that Chaisson stood for the proposition that it was

error for the district court to admit “substantive evidence undisclosed before trial,” and did not

stand for the proposition that surveillance videotape disclosed after the discovery cutoff is

“automatically inadmissible.” Id., at 368–69.

b. Hired Surveillance May Be Compelled Pre-Deposition In Eastern District of

Louisiana.

Recently, at least one jurist in the Eastern District of Louisiana has interpreted Chaisson

as favoring the production of surveillance videotape prior to the plaintiff’s deposition. See Meyer

v. Turn Servs., L.L.C., No. CV 16-12787, 2016 WL 6610931, at *1 (E.D. La. Nov. 9, 2016); see

also Karr v. Four Seasons Maritime, Ltd., 2004 WL 797728 (Apr. 12, 2004). In Meyer, supra,

the plaintiff filed a motion to compel production of surveillance capturing plaintiff from the date

of the accident, and defendant opposed that motion on grounds that (a) “it seeks information

prepared in anticipation of litigation and/or that is protected by the attorney/client and/or work

product privilege;” and (b) “defendant is entitled to a protective order delaying production of the

surveillance evidence until after plaintiff is deposed.” 2016 WL 6610931 at * 1.

In Meyer, supra, Magistrate Judge Wilkinson rejected the defendant's assertion of

attorney-client privilege because “[s]urveillance photography is a tangible item, not a

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communication between attorney and client;” rejected the defendant’s assertion of attorney

work-product; noted that “surveillance evidence simply cannot be substantially duplicated;” and

endorsed the need “to avoid making civil discovery a game of ambush, blind man's bluff or

‘gotcha.’” Id.

In Meyer, supra, Magistrate Judge Wilkinson also denied defendant’s request for a

protective order delaying production of surveillance until after the plaintiff’s deposition. The

following passages explain the reason behind the ruling:

In this case, I repeat what I said in Karr: Defendant has failed to make “a particular and specific demonstration of fact, that withholding [its] surveillance evidence will either encourage a dishonest plaintiff to testify honestly or enable them to catch plaintiff in a lie....To conclude that a witness would lie or would testify truthfully only because of the threat that a surveillance tape might exist is simply stereotyping, an exercise in speculation that was expressly discounted by the Fifth Circuit in Chiasson.... [Defendant's argument is] ‘a faulty one, because it flies directly in the face of the very purpose of discovery. The federal rules promote broad discovery so that all relevant evidence is disclosed as early as possible,...a fair contest, where each party can knowledgeably evaluate the strength of its evidence and chances of ultimate success.’ ” Karr at *3 (quoting Chiasson, 988 F.2d at 516-17). To permit plaintiff's deposition to go forward before production of the surveillance evidence that all parties know exists undermines the search for truth, inhibits full trial preparation and settlement evaluation and invites an evidentiary mess at trial. I have reviewed numerous surveillance films and photographs in personal injury cases during my 21 years as a magistrate judge, both during and before trial. They depict what they depict, but seldom provide a full evidentiary picture. Invariably, the secretly recorded plaintiff has some explanation for the conduct being photographed, some testimony about the absolute necessity of his or her engaging in the photographed activity or some complaint that the photography does not also show the pain, discomfort, disability or medical treatment experienced in the aftermath of the surreptitiously recorded activity. The very purpose of discovery is to get all such facts and explanations on the table and out in the open, so that the case may be fully and accurately evaluated and adjudicated.

2016 WL 6610931, at *2–3 (E.D. La. Nov. 9, 2016). Based on Meyer, more plaintiffs will likely

compel production of surveillance video prior to their depositions.

c. Surveillance Is Not Privileged Work Product In State Court.

Louisiana Code of Civil Procedure Article 1424 establishes the “attorney work-product

rule.” Prior to 2007, Article 1424 provided a qualified privilege for “any writing obtained or

prepared… in anticipation of litigation or in preparation for trial.” Because Article 1424 referred

only to “writing,” the Louisiana Supreme Court held that the attorney work product exception

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did not apply to tangible things such as videotapes, films, or photographs. See Moak v. Illinois

Central Railroad Company, 93-0783 (La. 1/14/94), 631 So.2d 401; Wolford v. JoEllen Smith

Psychiatric Hosp., 96-2460 (La. 5/20/97), 693 So. 2d 1164, 1166. Because audiotapes are

tangible things similar in nature to videotapes, films, and photographs, the Louisiana Supreme

Court also held that the work product exception did not apply to audiotapes. See Whittenburg v.

Zurich Am. Ins. Co., 2000-2697 (La. App. 4 Cir. 4/18/01), 786 So. 2d 163, 166; Landis v.

Moreau, 2000-1157 (La. 2/21/01), 779 So. 2d 691, 697.

In 2007, the Louisiana Legislature amended Section A of Article 1424 to provide a

qualified privilege for “any writing, or electronically stored information, obtained or prepared…

in anticipation of litigation or in preparation for trial.” 2007 La. Sess. Law Serv. Act 140 (H.B.

203) (WEST)(underline added). The Comments for the 2007 Amendment did not define

“electronically stored information” or address whether its addition expanded the scope of the

attorney work-product privilege beyond “writings.” However, Article 1424 is now consistent

with the scope of the Rule 4.4 of the Louisiana Rules of Professional Conduct, which requires an

attorney to refrain from reading “a writing or electronically stored information that, on its face,

appears to be subject to the attorney-client privilege or otherwise confidential.”

No state court case has directly addressed whether the 2007 Amendment to Article 1424

expanded the attorney work-product rule to include electronically-stored recordings. But the

October 2016 Update to the Louisiana Practice Series recognized no significance to the addition

of “electronically stored information,” continued to cite Wolford as controlling, and concluded

surveillance (still) is not “work product,” stating:

Surveillance films, videotapes, and photographs are not "work products" excluded from discovery by La. Code Civ. Proc. Ann. art. 1424. Article 1424 covers only "writings" or electronically stored information, and photographic material is not a writing. The Louisiana Supreme Court has adopted a general rule giving preference to post-deposition disclosure of surveillance materials. The general rule is that the plaintiff's deposition precede the production of the surveillance videotape, absent a showing by the plaintiff of special circumstances. Wolford v. JoEllen Smith Psychiatric Hospital, 693 So. 2d 1164 (La. 1997).

La. Prac. Civ. Pretrial § 11:52 (2016-2017 ed.). Thus, some commentators and jurists have

apparently concluded that “electronically stored information” is limited to electronically-stored

writings, and its addition did not expand the qualified privilege.

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On April 5, 2016, Representative Robert Carter introduced 2016 Louisiana House Bill

No. 1065. Instead of identifying what is prohibited, Bill No. 1065 would rewrite Section A of

Article 1424 to identify what the court shall order produced. Bill No. 1065 proposes changing

Section A to provide:

The court shall order the production or inspection of any writing, recorded statement, or electronically stored information, obtained or prepared by any witness unless the witness is a party to the litigation. Except as otherwise provided in Article 1425(E)(1), the court shall not order the production or inspection of any part of the writing, or electronically stored information, that reflects the mental impressions, conclusions, opinions, or theories of an attorney.

2016 Louisiana House Bill No. 1065, Louisiana Forty-Second Regular Session. If enacted, Bill

No. 1065 could redefine the scope of the qualified privilege.

d. Hired Surveillance Should Not Be Produced Pre-Deposition.

Louisiana state courts do not require a defendant to produce that surveillance videotape

prior to deposing the plaintiff. See Wolford v. JoEllen Smith Psychiatric Hosp., 96-2460 (La.

5/20/97), 693 So.2d 1164. In Wolford, supra, plaintiff Linda Wolford filed suit against the

hospital after being injured on October 27, 1990, while negotiating an obstacle course which was

part of the hospital’s physical therapy program. During pretrial discovery, plaintiffs requested

production of any surveillance videotapes. In response, defendant refused to produce two such

tapes (one made in 1993 and one made in 1995), and moved to compel a supplemental

deposition of Ms. Wolford “to question her about her physical injuries and activities during the

time pictured in the surveillance videotapes before producing them.” Id., at 1165.

In Wolford, supra, the Court departed from its holding in Moak because, unlike store

surveillance video, “surveillance videotape has potential value as a unique impeachment tool,

distinct from other forms of evidence, that would be irrevocably lost if the defendant were

required to turn it over before fully deposing the plaintiff about his activities and injuries.” Id., at

1167. The Court established a new general rule:

We thus modify our holding in Moak in favor of a general rule giving preference to post-deposition disclosure of surveillance materials. The general rule is that the plaintiff’s deposition precede the production of the surveillance videotape, absent a showing by the plaintiff of special circumstances. This rule best serves the overarching purpose of our system of justice – to search for the truth. Ours is an adversarial system of justice that relies on the ability and resources of adversaries to uncover the truth by testing each other’s evidence through a variety of methods, the most important of which is cross-examination. Moreover, in an adversarial

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system, the defendant has a right to a defense and to cross-examination. In a personal injury case, surveillance videotape can be critical to the defendant’s defense and ability to effectively cross-examine the plaintiff. Surveillance materials may thus serve as an important function in the search for truth and, absent special circumstances, their value should be preserved by delaying their disclosure until after the deposition of the plaintiff.

Wolford, 693 So.2d at 1167-1168. Since Wolford, the Louisiana Supreme Court has also held

that the production of audio recordings made for impeachment purposes should not be disclosed

until after the deposition of the witness recorded. See O'Dwyer v. Our Lady of the Lake Nurse

Anesthesia Program ex rel. Our Lady of the Lake Coll., 2013-0703 (La. 5/17/13), 117 So. 3d

1252, 1252–53.

e. Released Surveillance Should Be Compelled Prior To Deposition.

While establishing a general rule regarding the production of unreleased hired

surveillance, the court in Wolford specifically noted that it still agreed “with McNease that there

may be some special circumstances that would justify pre-deposition disclosure of them.” 693

So.2d at 1167. In McNease v. Murphy Construction Company, 96-0313 (La. 11/8/96), 682 So.2d

1250, the Louisiana Supreme Court held that the defendant’s decision to release surveillance

videotape to the plaintiff’s doctor to influence him to terminate the plaintiff’s treatment

constituted a “special circumstance” which mandated a modification of the trial judge’s

discretion. In such a case, the Court stated that the surveillance videotape should be provided to

all parties, regardless of whether the defendant has had the opportunity to take the plaintiff’s

deposition.

f. Surveillance Of The Incident Should Be Compelled Pre-Deposition.

The Louisiana Supreme Court has drawn an important distinction between store

surveillance of an incident and subsequent hired surveillance of a plaintiff. In Bell v. Treasure

Chest Casino, 2006-1538 (La. 2/22/07), 950 So.2d 654, plaintiff Linda Duncan Bell was

allegedly struck in the back by a pushcart and injured while playing a slot machine at Treasure

Chest Casino. Plaintiff filed suit and propounded discovery asking the defendant to produce

video of the incident captured by the casino’s security cameras. Treasure chest refused to

produce the videotape “stating that it contained impeachment evidence which was not required to

be produced until after Bell was deposed,” and plaintiff filed a motion to compel. Id., at 655. The

trial court ordered Treasure Chest to produce the videotape, and the Court of Appeal reversed.

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In Bell, supra, the Louisiana Supreme Court clarified that its holding in Wolford was

limited to “surveillance videotapes made after an injury had occurred, for the purpose of

impeaching a plaintiff.” Id., at 656 (italics original). Because the surveillance video in Bell was

of the incident, the Court reversed the Court of Appeal, holding:

In other cases, such as the instant one, where a surveillance videotape shows the actual accident and was not created for the specific purpose of impeaching the plaintiff, surveillance videotapes are, as we stated in Moak, generally discoverable under our discovery rules. Because the videotapes are generally discoverable, it is the defendant rather than the plaintiff, which must show special circumstances which would require postponing the production of the material.

Id., at 656. Since Bell, plaintiff attorneys routinely compel production of surveillance of the

incident prior to the plaintiff’s deposition.

2. Online Posts & Comments (Facebook, Myspace, blogs)

Society is obsessed with social media. Websites such as Facebook, Twitter, and

Instagram give people the ability to instantly post on the internet what they are doing at any time

of day. Litigators are discovering valuable pieces of evidence from social media. While there are

no evidentiary rules specifically addressing the admissibility of social media content, courts have

adapted the traditional evidentiary rules to cover this type of information. See State v. Smith,

2015-1359 (La. App. 4 Cir. 4/20/16), 192 So. 3d 836. Nevertheless, several unique

characteristics of social media information present hurdles to its use and admissibility.

a. Social Media Must Be Properly Authenticated.

The first (and most likely toughest) obstacle is properly authenticating social media

evidence because, as one court put it, “anyone can create a fictitious account and masquerade

under another person’s name or can gain access to another’s account by obtaining the user’s

username and password.” See Rice v. Reliastar Life Ins. Co., No. 11-44, 2011 WL 1168520

(M.D. La. Mar. 29, 2011)(striking a screenshot from the defendant’s MySpace page because

there was no evidence linking it to the defendant as his profile page); Sublet v. State, 113 A.3d

695, 713 (Md. App. 2015).

Because social media content can be easily manipulated, courts have developed several

common ways to authenticate information obtained on social media:

• Ask the purported creator if she indeed created the profile and also if she added the posting in question;

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• Search the computer of the purported creator and examine the computer’s internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question; and

• Obtain information directly from the social networking website, which would link together the profile and the entry to the person, or persons, who created them. See

Smith, 192 So. 3d at 841-42.

Follow these steps for authenticating social media or find yourself wondering what the jury

would have done with what they should have seen.

b. Social Media Is Not Always Hearsay.

Because it is an out-of-court statement, social media content is hearsay when offered for

its truth. See Fed. R. Evid. 801(c); Miles v. Raycom Media, Inc., No. 09-713, 2010 WL 4791764

(S.D. Miss. Nov. 18, 2010). But, like all out-of-court statements, the inherent purpose for which

the social media content is used can support or counter an argument for admissibility based on

the hearsay rules and exceptions. For example, the “present sense impression” exception may

prove very valuable for overcoming a hearsay objection because many social media users have

constant access to their accounts on their cell phone. See Pamela W. Carter & Shelley K.

Napolitano, Social Media an Effective Evidentiary Tool, 61 La. B.J. 332 (2014). A “tweet” or

Facebook “status” may also be used to show the user’s state of mind to satisfy the exception for

“then-existing mental, emotional, or physical condition.” See Fed. R. Evid. 803(3); Gilliland,

iWitness: The Admissibility of Social Media Evidence, 39 J. Sec. Lit. 1 (2013). Additionally,

features such as “checking-in” to a location, which pinpoints the location of a user at a particular

time, can be used to determine whether the social media information coincides with events at

issue in the case. See Carter & Napolitano, 61 La. B.J. at 332.

In essence, social media content is not treated any differently than other evidence.

However, due to its rather recent entrance into the courtroom and its unique characteristics, it is

vital for litigators to be up-to-date on its use and admissibility.

3. Unverified Pleadings & Discovery

a. Federal Court Pleadings & Discovery Are Admissions.

Factual assertions and admissions in pleadings are considered to be judicial admissions

conclusively binding on the party who made them. White v. ARCO/Polymers, Inc., 720 F.2d

1391, 1396 (5th Cir. 1983) (citing Myers v. Manchester Ins. & Indem. Co., 572 F.2d 134 (5th

Cir. 1978)). Admissions made in superseded pleadings are as a general rule considered to lose

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their binding force, and to have value only as evidentiary admissions. Id. (citing 3 Moore's

Federal Practice & Procedure ¶ 15.08[7] at 15–128 (1982); Borel v. United States Casualty Co.,

233 F.2d 385 (5th Cir.1956)). But where the amendment only adds allegations, deleting nothing

stated in the prior pleadings, admissions made in the prior pleadings continue to have conclusive

effect. Id.

The pleadings of a party made in another action, as well as pleadings in same action

which had been superseded by amendment, withdrawn, or dismissed, are admissible as

evidentiary admissions of the pleading party to facts alleged therein. However, the necessary

exception to the rule is that one of two inconsistent or alternative pleas cannot be used as

evidence in the trial of the other, including inconsistent positions taken in pleadings in

complicated joinder situations involving the contingent liability of third parties. Continental Ins.

Co. of New York v. Sherman, 439 F.2d 1294, 15 Fed. R. Serv. 2d 930 (5th Cir. 1971).

Verification of pleadings and discovery is “now the exception rather than the rule in

federal court.” See generally 5A Fed. Prac. & Proc. Civ. § 1339 (3d ed.). Under Federal Rule 11,

pleadings, motions, and other papers need not be verified or accompanied by an affidavit

“[u]nless a rule or statute specifically states otherwise.” Id. As long as the party or their attorney

of record signs the pleading, it will be considered a valid and properly filed pleading. Properly

signed pleadings and discovery would also almost certainly fall within the hearsay exception

outlined in FED. R. EVID. 801(d)(2).

Specifically regarding responses to interrogatories, the Eastern District of Louisiana has

held that “deliberate, clear, and unequivocal statements” made in a party’s interrogatory

responses can be judicial admissions. U.S. ex rel. Garibaldi v. Orleans Par. Sch. Bd., 46 F. Supp.

2d 546, 553-54 (E.D. La. 1999), vacated on other grounds, 244 F.3d 486 (5th Cir. 2001). The

district court reasoned that “[i]f the court were to allow the defendant to equivocate on its

answers to interrogatories, the doctrine of judicial admissions would lose its meaning and

effectiveness.” Id.

Regarding judicial notice, paragraph (b)(2) of Rule 201 states in part that “[t]he court

may judicially notice a fact that is not subject to reasonable dispute because it:... can be

accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.” The U.S. Fifth Circuit Court of Appeal and other federal courts regularly take

judicial notice of facts from court documents. Taylor v. Charter Med. Corp., 162 F.3d 827, 829

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(5th Cir. 1998); In re Katrina Canal Breaches Consol. Litig., Civ.A. No. 05-4182 (E.D. La. Sept.

8, 2008), 2008 WL 4185869 *2 (Duval, J.); In re Chinese Manufactured Drywall Products Liab.

Litig., 759 F. Supp. 2d 822, 828 (E.D. La. 2010) (Fallon, J.) (“a court may take judicial notice of

items in the record of the case, related cases, and matters of public record….”); see also U.S. ex

rel Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (a

court “may take notice of proceedings in other courts, both within and without the federal

judicial system.”); U.S. v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“a court may take judicial

notice of its own records in other cases, as well as the records of an inferior court in other

cases.”).

b. State Court Pleadings & Discovery Are Judicial Admissions.

An admission by a party in a pleading constitutes a judicial confession under LA. CIV.

CODE art. 1853 and is full proof against the party making it. Sinha v. Dabezies, 590 So.2d 795,

798–99 (La. App. 4th Cir. 1991) (citing Starns v. Emmons, 538 So.2d 275 (La. 1989)); see also

C.T. Traina, Inc. v. Sunshine Plaza, Inc., 2003-1003 (La. 12/3/03), 861 So. 2d 156, 159–60;

Taboni ex rel. Taboni v. Estate of Longo, 01-2107 (La. 2/22/02); 810 So.2d 1142; Smith v. Board

of Trustees, 398 So.2d 1045 (La. 1981).

A judicial confession has the effect of waiving evidence as to the subject of the

admission. C.T. Traina, Inc, 861 So.2d at 159–60. Under Article 1853, a declaration made by a

party's attorney or mandatary has the same effect as one made by the party himself. See La. Civ.

Code art. 1853, cmt. B. “A judicial confession,” however, “should not estop a curative

amendment absent a showing that the adversary was misled or deceived.” Sinha, 590 So.2d at

798-99 (citing Guidry v. Barras, 368 So.2d 1129 (La. App. 3rd Cir. 1979)).

c. Federal Court Will Take Notice Of Documents Filed In Other Cases.

The Fifth Circuit has held that a court “may take judicial notice of a ‘document filed in

another court . . . to establish that fact of such litigation and related filings,” but, “a court cannot

take judicial notice of the factual findings of another court.” Taylor, 162 F.3d at 829 (citations

omitted). “This is so because (1) such findings do not constitute facts ‘not subject to reasonable

dispute” within the meaning of Rule 201;’ and (2) ‘were [it] permissible for a court to take

judicial notice of a fact merely because it had been found to be true in some other action, the

doctrine of collateral estoppel would be superfluous.’” Id. The Fourth Circuit Court of Appeal

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even noted that the “most frequent use of judicial notice of ascertainable facts is in noticing the

content of court records.” Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989).

d. Admissions In Earlier Cases Are Not Binding In State Court.

Louisiana state courts have held that “[a]n earlier judicial admission does not in a later

proceeding bind a person making it nor does it stop him from denying the correctness thereof.”

Howard Trucking Co., Inc. v. Stassi, 474 So.2d 955 (La. Ct. App. 5th Cir. 1985), writ granted,

478 So.2d 1229 (La. 1985), judgment aff'd, 485 So.2d 915 (La. 1986). “An allegation, admission

or confession in a pleading in another suit is an extrajudicial admission and is admissible as

evidence, but is not a conclusive presumption and does not operate as estoppel unless the party

invoking it has been prejudiced by relying upon it.” Torrejon v. Mobil Oil Co., 2003-1426 (La.

App. 4 Cir. 6/2/04); 876 So.2d 877, 894–95, writ denied, 2004-1660 (La. 9/24/04); 882 So.2d

1125 (citing Cross v. Cutter Biological, Div. of Miles, Inc., 94-1477 (La. App. 4 Cir. 5/29/96);

676 So.2d 131, 144 (citing Lakeshore Prop. Owners Ass'n, Inc. v. Delatte, 524 So.2d 126, 130

(La .App. 4th Cir.1988))).

e. State Court Will Not Take Notice Of Documents Filed In Other Cases.

Judicial notice under Louisiana law differs from its Federal counterpart. Under LA. CODE

OF EVID. 202, Louisiana courts can take judicial notice of their own proceedings but are

precluded from taking judicial notice of a suit record from another court. Pinegar v. Harris,

2006-2489 (La. App. 1 Cir. 5/4/07); 961 So.2d 1246, 1249 (citing Union Planters Bank v.

Comm. Cap. Holding Corp., 04–0871 (La. App. 1 Cir. 3/24/05); 907 So.2d 129, 130). While

Article 202 provides for mandatory judicial notice of federal and state laws and certain

ordinances and discretionary judicial notice for notice of various legal matters, when requested

by a party and with proper documentation, Article 202 does not allow courts to take judicial

notice of other courts’ proceedings. La. Code Evid. art. 202; see also Pinegar, 961 So.2d at

1249. Documentation of other courts' proceedings must be offered into evidence in the usual

manner. Pinegar, 961 So.2d at 1249; see also State v. Hotoph, 99-243 (La. App. 5 Cir.

11/10/99); 750 So.2d 1036, 1053-1054.

If the pleading or discovery is a prior inconsistent statement, it may be independently

admissible under LA. CODE OF EVID. art. 607(D)(2). Sinha, 590 So.2d at 798–99 (citing Bank of

La. in New Orleans v. Charia, 359 So.2d 724 (La. App. 4th Cir.), writ denied, 362 So.2d 576

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(La. 1978)). It may also be admissible under one of the exceptions to hearsay under Article

801(D)(2) and (D)(3).

4. Depositions & Deposition Drawings

Live trial testimony is almost always the most effective way to present evidence. That

said, deposition testimony is often used at trial for several important purposes. Bear in mind that

the use of depositions in court is governed both by the Federal Rules of Civil Procedure

(specifically Rule 32(a)) and by the Federal Rules of Evidence. At trial, all or part of a deposition

may be used against any party who was present or represented at the taking of the deposition or

who had reasonable notice. See Fed. R. Civ. P. 32(a)(1). And deposition testimony that is

excluded at trial can and should be proffered into the record. See Fed. R. Evid 103(a)(2).

a. Depositions May Be Used For Two Very Different Purposes.

Deposition transcripts are commonly used to impeach trial witnesses. Under Rule

32(a)(1), “[a]ny party may use a deposition to contradict or impeach the testimony given by the

deponent as a witness.” Though trial techniques are beyond the scope of this article, to be most

effective trial counsel should lock in the trial testimony, accredit the prior deposition, confront

the witness with prior testimony, and, finally, compare the prior testimony to the in-court

testimony. See Howard Bruce Klein, Use of the Deposition at Trial; Used Correctly, the

Deposition Is One of the Most Potent of All Trial Weapons, 19 No. 1 Prac. Litigator 59, January

2008.

But it is also important to remember that a deposition transcript may be used to refresh a

witness’s recollection when the witness has forgotten facts that were testified to at some earlier

time. See Fed. R Evid. 612. If the jury obviously adores the kindly grandmother on the stand, ask

to approach and allow the witness to read a passage of her deposition before asking “does that

refresh your memory?”

It is less clear whether the deposition of another person may be used to “refresh” the

memory of a witness. For example, if a passenger denies telling a good Samaritan that the

defendant-driver was speeding, is it permissible to present the witness with the Samaritan’s

deposition testimony and ask if a specific passage “refreshes” their memory? What if that

deposition excerpt contains a fact, detail or quote that jars the memory of the witness? Why

wouldn’t the court allow the witness to read the passage and answer truthfully whether it

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refreshed their memory? Does it matter whether the deponent will testify at trial or the deposition

read/played for the jury?

b. Deposition Of A Party May Be Introduced.

When using deposition testimony at trial as affirmative evidence (as opposed to

impeachment purposes), it matters whether the deponent was a party or a non-party. Many trial

lawyers do not realize that Rule 32(a)(3) provides that the deposition of a party, which includes

an officer, director, or designated person of an entity, may be used by an adverse party for any

purpose. This is true even if the party is present at trial and plans to testify in person. See, e.g.,

Aetna Cas. & Sur. Co. v. Guynes, 713 F.2d 1187, 1194 (5th Cir. 1983).

In recent years, video depositions have become a popular method of presenting

deposition testimony in court. When it is determined that the deposition testimony is admissible,

it is generally unnecessary (assuming the court has the proper technology) to obtain special

permission to introduce video depositions. See Fed. R. Civ. P. 32(c) (a party must provide a

transcript of any deposition testimony but may provide the court with the testimony in non-

transcript form as well). Even though video depositions may be useful, lawyers should avoid the

temptation to play long passages of testimony, which invariably bore the jurors.

c. Deposition Of Non-Party Only Admissible If Unavailable.

For non-parties, the rule is different. In this situation, deposition testimony is limited

depending on the availability of the deponent. The deposition of an unavailable witness may only

be used at trial if the court finds one of the following circumstances:

• The witness is dead,

• The witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless is appears that the witness’s absence was procured by the party offering the deposition,

• The witness cannot attend or testify because of age, illness, infirmity, or imprisonment,

• The party offering the deposition could not procure the witness’s attendance by subpoena, or

On motion and notice, that exceptional circumstances make it desirable—in the interest

of justice and with due regard to the importance of live testimony in open court—to permit the

deposition to be used. Fed. R. Civ. P. 32(a)(4).

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d. Deposition Drawings May Be Admissible.

Witnesses are frequently asked at a deposition to draw what they are describing to better

explain a particular fact or situation. For example, a deponent may mark the location of an

accident on a map or show the direction a person or vehicle was moving. See Klein v. Harper,

186 N.W.2d 426, 433 (N.D. 1971)(witness made diagram of automobile accident scene during a

discovery deposition). Such illustrations are usually attached to the deposition as an exhibit. See

Wright & Miller, 8A Fed. Prac. & Proc. Civ. § 2142 (3d ed.).

If a deposition is admissible, exhibits marked at the taking of that deposition are

admissible, subject to the usual rules of evidence. See Gore v. Maritime Overseas Corp., 256 F.

Supp. 104, 119 (E.D. Pa. 1966), judgment aff'd in part, rev'd in part on other grounds, 378 F.2d

584 (3d Cir. 1967); Rachko v. Nationwide Mut. Ins. Co., No. 96-01-085, 1997 WL 817860 (Del.

Super. Ct. Oct. 17, 1997) (“[I]f the officer drew a diagram during his deposition . . . it is

admissible); But see Allen v. Pearson, 415 F.2d 499 (5th Cir. 1969) (diagram of wreck was not

“part of deposition” and, thus, not admissible when it was drawn before the deposition and

merely attached to the deposition with no agreement by the parties to make the diagram part of

the deposition).

To authenticate the diagram, the witness must produce evidence sufficient to support a

finding that the item is what the witness claims it is. See Fed. R. Evid. 901(a); Augenthaler v.

Pinkert, 138 Cal. App. 455, 458, (Cal. Ct. App. 1934)(admitting a deposition diagram over an

objection when the witness was asked if the diagram was correct and she indicated that it was). A

diagram will even be admissible if the witness is available to testify at trial as long as the

diagram is relevant to an issue at trial. See Harper, 186 N.W.2d at 433.

5. Traffic Tickets & Guilty Pleas

a. Plea of Guilty But Not Conviction Is Admissible In Federal Court.

In Dunham v. Pannell, 263 F.2d 725 (5th Cir. 1959), the Fifth Circuit held that criminal

convictions were inadmissible in parallel civil proceedings to prove the conduct on which the

conviction was based, but a plea of guilty is admissible:

Proof of a criminal conviction after a trial and a plea of not guilty is usually inadmissible against the defendant in subsequent civil proceedings as evidence of the facts on which the judgment of conviction is based. But evidence of a legal plea of guilty to a criminal charge is generally admissible in civil litigation as an admission against interest. This principle is applicable to litigation arising out of automobile accidents. There is a natural reluctance, however, to admit evidence of a plea of guilty to a traffic charge, and when

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such evidence is admitted it is not conclusive; the alleged traffic violator may explain his plea of guilty

263 F.2d at 728–29.

b. Plea of Guilty But Not A Conviction Is Admissible In State Court.

The Lousiana Supreme Court has held that a defendant’s guilty plea to traffic charges

related to the subject motor vehicle accident is admissible in a parallel civil action. See

Arceneaux v. Domingue, 365 So. 2d 1330, 1336 (La. 1978). In Arceneaux, the court stated: “A

plea of guilty is an admission against interests by the driver, and is admissible as relevant

evidence to show fault.” 365 So. 2d at 1336.

In contrast, a conviction regarding a traffic citation may not be admissible in a parallel

civil action. See Ruthardt v. Tennant, 215 So.2d 805, 252 La. 1047-48 (La. 1968). In Ruthardt,

supra, the Louisiana Supreme Court held:

In civil cases it is inadmissible to show that one or the other of the parties was charged by the police with a traffic violation or convicted. This would be merely the opinion of the officer or the judge, as the case might be. Trials and convictions in traffic courts and possibly in misdemeanor cases generally are not always trustworthy for they are often the result of expediency or compromise. To let in evidence of conviction of a traffic violation to prove negligence and responsibility in a civil case would unduly erode the rule against hearsay.

Ruthardt v. Tennant, 215 So.2d 805, 252 La. 1047-48 (La. 1968)(underline added).

c. Plea Of Nolo Contendere Is Not Admissible In State or Federal Court.

It is well-established in Louisiana that “[a] plea of nolo contendere is not technically a

plea of guilty, but it is one in substance if accepted by the court; for when so accepted, it

becomes an implied confession of guilt.” Carter v. Benjamin, No. 13-CV-00278-BAJ-RLB, 2015

WL 2448479, at *4 (M.D. La. May 20, 2015)(quoting Louisiana State Bar Ass'n v. Connolly,

206 La. 883, 890–91, 20 So.2d 168, 170 (1944) (emphasis added) (citations omitted).

However, a plea of nolo contendere traditionally “has no effect beyond the particular

case, and it can not be employed against the defendant as an admission in any civil suit for the

same act. In other words it does not [typically] estop the defendant to plead and prove his

innocence in a civil action.” Carter v. Benjamin, No. 13-CV-00278-BAJ-RLB, 2015 WL

2448479, at *4 (M.D. La. May 20, 2015)(quoting Connolly, 20 So.2d at 170(1944)).

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Consequently, a defendant’s plea of nolo contendere to criminal charges is not admissible

in a parallel civil action. See Shephard ex rel. Shephard v. Scheeler, 96-1690, (La. 10/21/97), 701

So.2d 1308. In Shephard ex rel. Shephard, the court found that the defendant’s guilty pleas to

charges of negligent homicide and reckless operation of a motor vehicle as a result of the subject

motor vehicle accident were admissible evidence during the civil trial. However, in dicta, the

Louisiana Supreme Court established that nolo contendere pleas are inadmissible, stating:

“Although a plea of nolo contendere has no effect beyond the case in which it is entered, a guilty

plea to a traffic offense is admissible to show fault.” 701 So.2d at 1314-15.

d. Payment Of A Fine Is Not Admissible (Absent A Written Plea).

There can be a meaningful difference between paying a fine and pleading guilty. See

Maricle v. Liberty Mut. Ins. Co., 2004–1149 (La. App. 3 Cir. 3/2/05), 898 So.2d 565, 573. In

Maricle, supra, the Louisiana Third Circuit Court of Appeal addressed the admissibility of a

motorist’s payment of a fine associated with a traffic citation. The Court concluded that such a

payment cannot be equated with the entry of a guilty plea; and, as a result, does not constitute an

admission against interest in a personal injury action stemming from an automobile accident.

While entering a written plea of guilty to a traffic citation is admissible as an admission against

interest, there is no jurisprudential authority definitively holding that mere payment of a traffic

citation fine- without a corresponding written guilty plea- satisfies the requirements of La. R.S.

32:641 and renders the citation admissible at trial. 898 So.2d at 573. In order for a purported

guilty plea to comply with La. R.S. 32:641, it must be made in writing. The statute states, in

pertinent part:

Any person apprehended for or charged with the violation of a law or regulation contained in such schedule may enter a written plea of guilty to the same by signing a declaration to that effect, which declaration shall specify the issue charged and the time and place thereof, and deposit with the sheriff of the parish a sum of money corresponding to the schedule of fines and costs for the violation of the particular traffic offense charged.

La. Stat. Ann. § 32:641(B). Accordingly, counsel should always read the ticket, especially the

back of the ticket, to determine: (a) whether a client must sign the ticket before paying and

mailing the fine; and (b) whether, by signing the ticket, a client is pleading guilty. If so, counsel

may want to appear for the client and enter a plea of nolo contendere.

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6. Draft Expert Reports & Emails To Experts

a. Expert Reports Are Inadmissible Hearsay.

A report prepared by an expert witness is generally not admissible because it is hearsay-

whether or not the expert testifies at trial. See Guzzardo v. Town of Greensburg, 563 So. 2d 424,

426 (La. App. 4th Cir. 1990); Matter of Fox, 504 So.2d 101 (La. App. 2d Cir. 2/25/1987; but see

Bolton v. Willis-Knighton Med. Ctr., 47,923 (La. App. 2 Cir. 4/24/13), 116 So. 3d 76, 89–90

(“We find no error in the trial court's admission of these documents into evidence. The record

before us clearly shows that during the testimony of each witness, the subject reports and

documents were identified and reviewed. The witnesses' memories were effectively refreshed.

See La. C.E. art. 612. Thus, regardless of the timing of their admission into evidence, these

documents were properly authenticated through the testimony of their preparers. Moreover, most

of the documents were viewed by the jury without objection from the defense. Ultimately, any

technical error in the unorthodox introduction of evidence was harmless considering the

cumulative nature of the evidence received.”).

Whether the testifying or non-testifying expert’s report is discoverable is a very different

question

b. Draft Expert Reports Are Not Discoverable In State Court.

Under Louisiana Code of Civil Procedure Article 1425(D)(2), the drafts of a testifying

expert and communications, including emails, with the attorney are generally not discoverable if

those materials would reveal the mental impressions, opinions, and trial strategy of the attorney.

The exception to the rule is that discovery is possible if the other party can show exceptional

circumstances that make it impractical for them to discovery facts or opinions on the same

subject by other means. Article 1425 provides

The expert's drafts of a report required under Paragraph B of this Article, and communications, including notes and electronically stored information or portions thereof that would reveal the mental impressions, opinions, or trial strategy of the attorney for the party who has retained the expert to testify, shall not be

discoverable except, in either case, on a showing of exceptional circumstances

under which it is impractical for the party seeking discovery to obtain facts or

opinions on the same subject by other means.

LA. CODE CIV. PROC. art. 1425(E)(1)(underline added). Louisiana courts have already recognized

exceptional circumstances under which it is impractical for the party seeking discovery to obtain

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facts or pinions by other means. See Fisher-Rabin Med. Ctr. v. Burdick Corp., a Div. of Kone

Inst., Inc., 525 So.2d 1178 (La. App. 5th Cir. 1988).

c. Draft Experts Reports Are Not Discoverable In Federal Court.

The federal work product doctrine is codified by Federal Rule of Civil Procedure

26(b)(3), which provides for the qualified protection of documents and tangible things prepared

by or for a party or that party's representative “in anticipation of litigation or for trial.” A party

invoking work product protection bears the burden of showing that the materials were prepared

by its representative in anticipation of litigation or for trial. See Hodges, Grant & Kaufmann v.

U.S. Government, Dept. of the Treasury, I.R.S., 768 F.2d 719, 721 (5th Cir.1985).

Rule 26(b)(3)(B) instructs the court to “protect against disclosure of the mental

impressions, conclusions, opinions, or legal theories of an attorney or other representative of a

party concerning the litigation.” Fed. R. Civ. P. 26(b)(3)(B). Under Federal Rule of Civil

Procedure 26(b)(3)(A), a party may only obtain discovery of documents prepared in anticipation

of litigation or for trial upon showing that the materials are otherwise discoverable under Federal

Rule of Civil Procedure 26(b)(1) and that the party seeking discovery has (1) substantial need of

the materials to prepare for his or her case and (2) that the party cannot obtain the substantial

equivalent of the materials by other means without undue hardship. See Fed. R. Civ. P.

26(b)(3)(A).

Federal Rule of Civil Procedure 26(b)(4)(B) extends work-production protection to drafts

of expert reports, providing that “Rules 26(b)(3)(A) and (B) protect drafts of any report or

disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded.”

Fed. R. Civ. P. 26(b)(4)(B).

Federal Rule of Civil Procedure 26(b)(4)(C) provides that “Rules 26(b)(3)(A) and (B)

protect communications between the party's attorney and any witness required to provide a report

under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that

the communications: (I) relate to compensation for the expert's study or testimony; (ii) identify

facts or data that the party's attorney provided and that the expert considered in forming the

opinions to be expressed; or (iii) identify assumptions that the party's attorney provided and that

the expert relied on in forming the opinions to be expressed.” Fed. R. Civ. P. 26(b)(4)(C).

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d. Emails From Counsel To Expert May Be Discoverable If Relied Upon.

Louisiana Code of Civil Procedure Article 1425(E)(2) does permit the opposing party to

inquire about and discover “any facts or data the expert is relying on in forming his opinion,

including that coming from counsel.” Thus, if the hiring attorney provides assumptions and facts

to the expert, the correspondence containing those assumptions and facts can be discovered

through interrogatories and depositions.

7. Employer Investigations (From Incident Reports to Root Cause Analysis)

Following an incident or casualty, an institution will often undertake an investigation to

determine what circumstances conspired to cause the event. These investigations bring two

competing interests into conflict. One interest is the determination of the cause of the incident so

as to identify ways to prevent its recurrence. The other is the avoidance of creating a liability

roadmap for potential opponents in litigation. This tension often resolves by determining when,

and for what purpose, the investigation results are being offered at trial.

a. Subsequent Remedial Measures Not Admissible.

Admissibility largely hinges on how a court elects to characterize the purpose of the

investigation. Federal Rule of Evidence 407, which concerns “subsequent remedial measures,”

provides:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• Negligence; • Culpable conduct; • A defect in a product or its design; or • A need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or – if disputed – proving ownership, control, or the feasibility of precautionary measures.

Fed. R. Evid. 407. Generally speaking, therefore, evidence of steps taken after an incident to

reduce the likelihood of recurrence will not be admissible to prove that the failure to implement

these measures was negligent at the time of the incident.

b. Branding Investigation “Remedial” May Not Render Inadmissible.

Attorneys litigating on behalf of the investigating party may argue that the purpose of an

investigation or root cause analysis was to prevent future recurrence, more than to determine the

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cause of a particular incident. See, e.g., Thornton v. Diamond Offshore Drilling, Inc., No. 07-

1839, 2008 WL 2315845 (E.D. La. May 19, 2008) (a party’s “post-accident considerations and

thinking about policy changes” are not admissible under Rule 407); cf. Brazos River Auth. v. GE

Ionics, Inc., 469 F.3d 416, 430 (5th Cir. 2006) (“The fact that the analysis may often result in

remedial measure being taken . . . does not mean that evidence of the analysis may not be

admitted. [B]y themselves, post-accident investigations would not make the event ‘less likely to

occur[.]’”).

Such arguments, however, highlight a difficult tension regarding internal investigations

and root cause analyses: To reduce the likelihood of admissibility, the investigating party must

argue that the purpose of the investigation was to inform forward-looking safety policy and

prevent future accidents. And such a characterization limits the ability to simultaneously

argue that the investigation report was prepared “in anticipation of litigation”—a requirement to

obtain work-product protection and shield the investigation report from discovery. Work-product

protection attaches to “materials assembled and brought into being in anticipation of litigation.”

United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982).

In other words, by arguing that the purpose of the investigation was to prevent future

accidents, a party all but assures that the investigation report will be discoverable. These

competing positions often require the investigating party to weigh concerns about discoverability

and admissibility against one another. Practically speaking, the result is often that those portions

of an investigation report discussing the cause of an incident will be admissible under Rule 407

(if discoverable in the first place), while sections detailing recommendations for the future may

be barred from admission. See, e.g., Thornton, 2008 WL 2315845, at *5 (“Here, a portion of the

incident report contains more than just investigative findings on causation. Accordingly, plaintiff

may admit the Incident Investigation Report, but he must redact the section titled

“Recommendations” and the addendum listing subsequent actions.”).

8. Accident Reconstruction Videos & Courtroom Demonstrations

In analyzing the admissibility of accident reconstruction videos and other courtroom

simulations, it is important to appreciate the difference between demonstrative and substantive

evidence. Demonstrative evidence has no independent probative value, and its primary purpose

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is to illustrate the testimony of a witness to help jurors understand difficult factual issues.2

Examples would include a computer animation depicting the circumstances surrounding a car

accident based on the testimony of a witness to that accident. See, e.g., Anderson v. State, 223

N.W.2d 879, 886-87 (Wis. 1974) (“Demonstrative evidence, whether a model, a chart, a

photograph . . . is used simply to lend clarity and interest to oral testimony . . . . [and] is merely

incorporated by reference into a witness’ testimony.”); Wilson v. Woods, 163 F.3d 935 (E.D. La.

1999) (applying Daubert and FRE 702 analysis to accident reconstructionist).

By contrast, substantive evidence is “adduced for the purpose of proving a fact in issue,

as opposed to evidence given for the purpose of discrediting a witness, or of corroborating his

testimony.” See Steven C. Marks, Trial Practice: The Admissibility and Use of Demonstrative

Aids, American Bar Association GP Solo Magazine (March 2014). This would include items

such as a computer simulation of an accident based on scientific and other factual data entered

into a computer which processes the data and generates a rendering of how an accident occurred

(e.g., a plane crash reconstructed from data obtained from the aircraft’s “black box” data

recorder).

The results of a simulation are dependent upon the application of scientific and

mathematical principles. Consequently, simulations are subject to the same types of gatekeeping

protection as other forms of scientific or expert testimony. See id.; see generally Daubert v.

Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); Fed. R. Evid. 702; see also Parker v.

NGM Ins. Co., No. 15-2123, 2016 WL 3546325 (E.D. La. Jun. 23, 106) (Morgan, J.) (applying

Daubert and FRE 702 standard to proposed testimony of accident reconstructionist based in part

on results of accident simulation program).

On the other hand, an animated depiction of an accident based on a witness’s testimony

does not depend on the application of any scientific principles, but merely the accuracy and

credibility of the witness’s testimony. Accordingly, such animations are not subject to the same

restrictions on admissibility. See e.g., State v. Wildgrube, 134 N.M. 262 (Ct. App. 2003)

(computer-generated diagram of crime scene used as demonstrative exhibit properly admitted

2 Steven C. Marks, Trial Practice: The Admissibility and Use of Demonstrative Aids, American Bar Association GP Solo Magazine (March 2014) (available at: http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/demonstativeaides.html).

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where officer who prepared the diagram testified that it reflected the measurements he had made

at the scene).

a. Simulations Must Be Reliable.

Because simulations depend on the accuracy of underlying calculations and other

scientific data, their admissibility is subject to the same standards as other expert evidence under

the familiar Daubert rule and Federal Rule of Evidence 702. See Wilson v. Woods, 163 F.3d 935

(E.D. La. 1999) (applying Daubert and FRE 702 analysis to accident reconstructionist); Parker

v. NGM Ins. Co., No. 15-2123, 2016 WL3546325 (E.D. La. Jun. 23, 2016) (Morgan, J.)

(evaluating proposed testimony of accident reconstructionist based in part on results of accident

simulation program under Daubert and FRE 702). Courts must exercise a “gatekeeping” function

to ensure the evidence is sufficiently reliable to reach the factfinder. Fed. R. Evid. 702; Daubert,

509 U.S. 579, 597 (1993). And the proponent of the evidence must lay an appropriate foundation

for the evidence’s introduction through the testimony of someone with personal knowledge of

the exhibit’s subject matter and who is capable of confirming the exhibit’s accuracy.

In contrast, purely illustrative animations are not subject to the restrictions applicable to

expert testimony. Their admissibility often hinges on whether the animations will assist the trier

of fact or mislead, prejudice, or confuse the trier of fact. See Fed. R. Evid. 403.

b. Simulations May Not Be Cumulative or Unduly Prejudicial.

Federal Rule of Evidence 401 establishes that relevant evidence is that which has any

tendency to a make a fact of consequence in determining the action more or less probable than it

would without the evidence. Fed. R. Evid. 401. All relevant evidence is admissible unless

prohibited by another rule. Fed. R. Evid. 402. Because animations and simulations have a

powerful ability to aid the jury in understanding the facts of the case, chances are strong that

properly authenticated examples of both will be relevant. However, courts are conscious of the

significant persuasive effect that well-crafted animations and other reconstructions can have on

factfinders.

Accordingly, while preliminarily admissible as relevant, courts will often consider the

potential impact on the jury to determine whether to exercise their discretion to limit the

evidence presented at trial.

Federal Rule of Evidence 403 vests courts with authority to exclude otherwise relevant

evidence if its probative value is substantially outweighed by a danger of unfair prejudice,

23

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence. Fed. R. Evid. 403. These so-called “trial considerations” make it such that

parties seeking to introduce animations, simulations, or other reconstructions will want to tread

lightly in the degree of theatrics that they choose to incorporate into their presentations. See e.g.,

Barnes v. General Motors Corp., 547 F.2d 275, 277 (5th Cir. 1977) (“The drama of the test,

demonstrating nothing probative, was calculated to cause the jury to accept the plaintiff’s theory

over the defendant’s evidence. Under the circumstances, we conclude that the admission of the

results of the experiment was highly prejudicial and reversible error.”). If a court believes

introduction of the exhibit risks unfair prejudice to one side, admission may be denied. See e.g.,

State v. Denton, 768 N.W.2d 250 (Wis. App. 2009) (police officer’s computer-generated

animation of a crime scene was inadmissible, inter alia, because of the risk of unfair prejudice to

the defense). Similarly, if the court believes the animation would merely be duplicative of earlier

testimony, it is possible such an exhibit would be excluded on those grounds as well.

9. Medical Illustrations & Surgical Videos/Photographs.

In personal injury cases, plaintiffs often want to introduce demonstrative evidence, such

as medical illustrations or other graphic depictions, to assist the jury in understanding the

mechanics of a particular medical procedure. Used properly, such exhibits can simplify

explanations of complex medical issues for the jury. In practice, these exhibits can range from

generic medical illustrations to custom renderings designed to resemble the likeness of the

plaintiff in the case.3

Like other demonstrative aids, however, issues arise when parties make editorial

decisions in how they depict the subject of the exhibit. Whether a medical exhibit ultimately gets

before the jury is governed by largely the same principles applicable to animations and other

demonstratives: relevance, admissibility, the potential for prejudice or confusion, and

cumulation.

Generally speaking, a medical illustration that accurately depicts a particular procedure

will be relevant and therefore admissible. See Fed. R. Evid. 401, 701. Therefore, disputes

relating to medical illustrations generally focus on the question of probative value versus unfair

3 See Joseph P. Moriarty, Challenging Graphic Life-Like Medical Illustrations, Defense Research Institute For the Defense Magazine (April 2010) (available at: http://www.willcoxsavage.com/media/1114/tmp4bcdf6347010e_drimoriarty2010.pdf).

24

prejudice. See, e.g., Rea v. Wisconsin Coach Lines, Inc., No. 12-1252, 2015 WL 1012936, at *2

(E.D. La. Mar. 5, 2015) (excluding graphic surgical video due to concerns of unfair prejudice,

but admitting illustration of cervical fusion that was not unfairly prejudicial); Regan v. Starcraft

Marine LLC, No. 06-1257, 2010 WL 2817289 (W.D. La. Jul. 16, 2010) (excluding video of

wound care for unfair prejudice, but permitting testimony regarding wound care).

Considering the example of a custom medical illustration rendered in the likeness of a

plaintiff, a defendant might have legitimate concerns over unfairly inflaming the jurors.

Moriarty, supra at 49 (noting the distinction between “prejudice resulting from reasonable

persuasive force of evidence and prejudice from excessive emotional or irrational effects that

could distort the accuracy and integrity of the fact-finding process”). The defendant might also

object that a rendering that appears to depict the plaintiff experiencing physical pain risks

confusing the issues and improperly injecting pain and suffering into the factual determination of

whether a particular procedure was performed according to standard. Under such circumstances,

it would be appropriate to invoke the court’s discretion to exclude otherwise admissible evidence

under Rule 403.

10. Certified Transcripts Of Opening Statement & Trial Testimony

a. Opening Statement Transcript Is Not Admissible In Federal Court.

Opening statements are not themselves evidence but rather a summary of what evidence

is expected to be introduced. The U.S. Fifth Circuit pattern jury instructions state: “The opening

statements are not evidence.”

Though opening statements are not evidence, admissions made by counsel during such

statements may be binding on a party. Pivirotto v. Innovative Sys., Inc., 191 F.3d 344 (3d

Cir.1999) (“While “[i]t may be true … that an attorney's clear and unambiguous statements of

fact made during opening or closing arguments can constitute judicial admissions under Federal

Rule of Evidence 801(d)(2)…. statements made by counsel as to what a party intends to prove

are not admissions that the jury can consider….”); U.S. v. Blood, 806 F.2d 1218, 1220 (4th Cir.

1986) (“[A] clear and unambiguous admission of fact made by a party's attorney in an opening

statement in a civil or criminal case is binding upon the party.”). Although a judicial admission is

not itself evidence, it has the effect of withdrawing a fact from contention. “A statement made by

counsel during the course of trial may be considered a judicial admission if it was made

intentionally as a waiver, releasing the opponent from proof of fact.” Martinez v. Bally's La.,

25

Inc., 244 F.3d 474, 476–77 (5th Cir. 2001) (citing McCullough v. Odeco., Inc., No. CIV.A. 90-

3868, 1991 WL 99413, at *2 (E.D. La. May 30, 1991)); see also Butynski v. Springfield Terminal

R.Co., 592 F.3d 272, 277-78 (1st Cir. 2010); Best v. Dist. of Columbia, 291 U.S. 411, 415-16, 54

S.Ct. 487 (1934)a

b. Opening Statement Transcript Is Not Admissible In State Court.

In Louisiana, the arguments and comments of counsel made during the opening statement

are not evidence and have no probative force. State v. Green, 343 So.2d 149 (La. 1977); State v.

Shaffer, 257 So.2d 121 (La. 1971). The Louisiana Civil Law Treatise for jury instructions also

states: “The arguments that the lawyers will make to you in opening and closing statements aren't

evidence. Your decision on the facts must be based on the testimony and the evidence that you

hear and see.” 18 La. Civ. L. Treatise, Civil Jury Instructions § 1:1 (3d ed.).

Thus, transcripts of opening statement cannot be offered into evidence nor can such

transcripts be taken into deliberations by the jury. However, in very rare and unique

circumstances, precedent does exist for statements made by attorneys in opening statement to be

considered a judicial admission. Johnson v. Harry Jarred, Inc., 391 So.2d 898 (La. App. 2d Cir.

1980) (In a negligence action in which an employee sought to recover against president of

corporate driller of gas well, against president's insurer, and against others for injuries sustained

in natural gas blowout and fire occurring during drilling of well, attorney's opening statement

acknowledging that insurer provided liability coverage for president was deemed a judicial

admission and sufficiently established coverage so as to justify overruling insurer's motion for

summary judgment, even though the employee offered no other evidence of the insurance

coverage.); but see Leday v. Safeway Ins. Co. of La., 2004-610 (La. App. 3 Cir. 11/17/04); 888

So.2d 1084, 1089; Ramelow v. Bd. of Trustees, Univ. of La. Sys., 2003-1131 (La. App. 3 Cir.

3/31/04); 870 So.2d 415, 419; Krepps v. Hindelang, 97–980 (La. App. 5 Cir. 4/15/98); 713 So.2d

519, 524.

Lastly, while there is no directly on point jurisprudence about whether transcripts of your

opponent’s opening statement can be utilized during your closing argument, a Louisiana Practice

Series treatise section states: “If possible, you should utilize a transcript of the opening

statement, comparing it to the testimony that was given or to the exhibits that were introduced.”

La. Prac. Civ. Trial § 12:35 (Sept. 2016) (authored by Hon. Billie Colombaro (La. Third Circuit

Court of Appeals, John W. deGravelles, Esq., and David R. Frohn, Esq.).

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c. Submission Of Witness Testimony To Jury Is Permissible.

In federal court, the submission of materials “whether or not admitted in evidence, to the

jury during deliberations, accompanied by careful cautionary instructions as to their use and

limited significance, is within the discretion accorded the district court in order that it may guide

and assist the jury in understanding the factual controversy.” Big John, B.V. v. Indian Head

Grain Co., 718 F.2d 143, 148–49 (5th Cir. 1983) (citing U.S. v. Downen, 496 F.2d 314, 321

(10th Cir.); see also Fed. Aviation Admin. v. Landy, 705 F.2d 624, 633 (2d Cir. 1983); First

Virginia Bankshares v. Benson, 559 F.2d 1307, 1315 (5th Cir.1977); Shane v. Warner

Manufacturing Corp., 229 F.2d 207, 210 (3d Cir.); see also 1 Fed. Jury Prac. & Instr. § 9:3 (6th

ed.).

The Fifth Circuit pattern civil jury instructions also state: “When you go into the jury

room to deliberate, you may take with you a copy of this charge, the exhibits that I have admitted

into evidence, and your notes.” Pattern Civ. Jury Instr. 5th Cir. § 3.7 (2014).

Similarly, in state court, the trial judge has vast discretion to allow jurors to review or re-

hear the trial testimony of witnesses pursuant to LA. CODE CIV. PROC. arts. 1794 and 1795. The

comments to those articles state that the judge is to consider how helpful such an examination

might be and the risk of misuse by the jury and possible prejudice to any party. While the

language of the articles, their legislative history, and the comments seem to indicate these articles

cover different scenarios (and may even slightly conflict with one another), the jurisprudence has

used them in conjunction with one another to essentially give the trial judge vast discretion in not

only whether to allow the jury to refresh its memory about testimony and evidence but also the

manner in which that refreshing can occur.

Under Louisiana Code of Civil Procedure Article 1794(B), the Judge has wide discretion

to allow the jury can take with them into deliberations any object or writing in evidence, except

depositions and as otherwise provided in the Louisiana Code of Evidence. For example, two

hearsay exceptions under Article 804 expressly prohibit the document from being taken into the

jury room. Article 804(5) excludes a prior recorded recollection from being excluded by the

hearsay rule, but does not permit the recorded recollection from being taken into the jury room.

Article 804 provides:

Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter

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was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence and received as an exhibit but may not itself be taken into the jury room. This exception is subject to the provisions of Article 612.

La. Code of Evid. art. 804(5)(underline added).

Similarly, Article 804(18) permits parties to read into the record statements contained in

learned treatises but those learned treatises may not be taken into the jury room. Id. at art.

804(18): “Learned treatises. To the extent called to the attention of an expert witness upon cross-

examination or, in a civil case, relied upon by him in direct examination, statements contained in

published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science

or art, established as a reliable authority by the testimony or admission of the witness or by other

expert testimony or by judicial notice. If admitted, such a statement may be read into evidence

and received as an exhibit but may not be taken into the jury room.”

Article 1795 provides that the trial judge may permit (1) the reading of testimony to the

jury and (2) the inspection of materials admitted into evidence:

A. If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, they shall be conducted to the courtroom.

B. After giving notice to the parties, the court may have the requested testimony read to the jury and may permit the jury to examine the requested materials admitted into evidence.

The comments state that “read” includes repeating testimony from a transcript or reporter’s notes

and also playing back the testimony from any recording. La. Code Civ. Proc. art. 1795 cmt. (c)

(“(c) “Read” is intended to include not only repeating testimony from a transcript or reporter's

notes, but also playing back the testimony from any recording.”)

The use of the word “shall” in Article 1795(A) and the explanation in Comment A to

Article 1795 appear to establish the following mandatory procedure upon a request by the jury:

(1) the jury be brought into the courtroom when it has requested a review of testimony or

evidence; (2) that the parties be notified of the request; and (3) the reexamination of testimony

and evidence is to be done in the courtroom in the presence of the parties if they do not waive

that opportunity. However, the appellate jurisprudence has not found failing to comply with this

procedure to be reversible error. Oleszkowicz v. Exxon Mobil Corp., 12-623 (La. App. 5 Cir.

12/19/13); 129 So.3d 1272, 1280; see also Taylor v. Progressive Sec. Ins. Co., 2009-791 (La.

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App. 3 Cir. 4/7/10); 33 So.3d 1081, 1088; Detraz v. Lee, 2004-988 (La. App. 3 Cir. 4/11/07),

955 So. 2d 1287; Fowler v. Bauman, 95–145 (La. App. 4 Cir. 10/12/95); 663 So.2d 438, 442–43.

In my practice, I have seen trial judges take the position that even trial transcripts of

witness testimony can be provided to the jury and taken by it back to the jury room. Considering

the vast discretion afforded to the trial judge in this regard, it is likely that this practice would not

be found to be revisable error by the courts of appeal.

11. Flip Pads & Fill-In Charts

Admission of evidence, including summaries and summary testimony, is reviewed for

abuse of discretion. See United States v. Harms, 442 F.3d 367, 375 (5th Cir. 2006); United States

v. Buck, 324 F.3d 786, 790 (5th Cir.2003). An error in the admission of evidence is excused

“unless it had substantial and injurious effect or influence in determining the jury's verdict.” Id.

“The admission of organization charts and summary evidence is governed by Federal

Rules of Evidence 611(a) and 1006.” United States v. Taylor, 210 F.3d 311, 315 (5th Cir.2000).

In federal court, it is within the trial court’s discretion to allow counsel to present charts as

teaching devices. See United States v. Taylor, 210 F.3d 311, 315 (5th Cir.2000)(“[A]llowing the

use of charts as ‘pedagogical’ devices intended to present the government's version of the case is

within the bounds of the trial court's discretion to control the presentation of evidence under Rule

611(a).”). “[S]uch charts are not admitted into evidence and should not go to the jury room

absent consent of the parties.” Id. If a summary or chart is introduced solely as a pedagogical

device, the court should instruct the jury that the chart or summary is not to be considered as

evidence, but only as an aid in evaluating evidence. Buck, 324 F.3d at 791.

When employing charts and summary evidence, it may be wise to request an instruction.

See United States v. Harms, 442 F.3d 367, 376 (5th Cir. 2006)(“The court later instructed the

jury as follows: ‘You'll recall that certain charts and summaries were received as demonstrative

evidence. Charts and summaries are valid only to the extent that they accurately reflect the

underlying supporting evidence.’ Although the court's reference to “demonstrative evidence” is

imprecise, the record shows that the time line was never admitted into evidence or allowed into

the jury room.”); Cf. United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir.1995) (use of

summary witness not reversible error where merely cumulative of substantive evidence); United

States v. Winn, 948 F.2d 145, 157–58 (5th Cir.1991) (use of summary chart and testimony not

reversible error where prejudice neutralized by instruction).

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a. Flip-Charts May Not Be Allowed.

Find out whether the court will allow you to write down responses during cross-

examination as a pedagogical device. During a 2010 manslaughter trial in Winn Parish, the court

allowed defense counsel to write on a flip chart during cross-examination. Every cross-

examination started with my writing the witness’s name at the top of the flip-chart page. Every

time the witness made a critical admission, the attorney grabbed a marker and (noisily) wrote the

quote or added a bullet point to his page. And, during closing argument, the attorney flipped to

each witness’s page to remind and reassure the jury that the witness really did say that during

cross-examination.

In stark contrast, during a 2012 wrongful death civil trial in Jefferson Parish, every cross-

examination began by asking the same two questions of the minors testifying regarding the

tubing trip. Despite the importance of those two questions, the court prohibited defense counsel

from displaying, let alone recording the answer of each witness on a single page bearing the two

typed questions: (a) “Did you personally purchase alcohol or beer from my client that was taken

on the tubing trip on Sunday, August 21, 2005?”; and (b) “Did you personally see a minor

purchasing alcohol or beer from my client on Sunday, August 21, 2005?”). Consequently, during

closing argument, instead of seeing a page full of hand-written “No”, the jury had to recall their

answers.

b. Fill-In Charts May Not Be Displayed.

Nothing is more effective during a jury trial than filling-out a chart comparing your

expert’s qualifications with theirs. Days later, jurors may not recall what each row addressed, but

they will remember seeing a column of “yes” for your expert, and seeing a column of “no” for

theirs. If you want that visual seared into a juror’s mind, you have to find-out whether the court

will allow you to display the chart and physically write “yes” and “no” in each blank.

Find out whether the court will allow you to fill-out a chart as a pedagogical device

during your cross-examination. During the 2015 wrongful death jury trial in the Western District,

plaintiff hired a cardiac electrophysiologist who made a number of startling admissions regarding

his lack of knowledge and experience. At trial, during cross-examination, defense counsel

showed the below chart and the jury watched counsel write “no” in nine of eleven rows for

plaintiff’s expert. The trial ended with a directed verdict, but the jury would have seen counsel

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write “yes” in all eleven rows during direct examination of the defense expert. The completed

chart would have looked like this:

12. Impeaching With Prior/Subsequent Settlement Amounts

a. Prior Settlements Not Admissible To Prove Liability Or Validity.

Voluntary settlements are favored for they obviate the need for costly and time-

consuming litigation. Branch v. Fid. & Cas. Co. of N.Y., 783 F.2d 1289, 1294 (5th Cir.

1986)(citing Miller v. Republic National Life Ins. Co., 559 F.2d 426 (5th Cir.1977). The spectre

of a subsequent use to prejudice a separate and discrete claim is a disincentive which Rule 408

seeks to prevent. Branch v. Fid. & Cas. Co. of N.Y., 783 F.2d 1289, 1294 (5th Cir. 1986). Federal

Rule of Evidence 408 provides in pertinent part:

(a) Prohibited Uses. Evidence of the following is not admissible--on behalf of any party--either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offering--or accepting, promising to accept, or offering to accept--a valuable consideration in compromising or attempting to compromise the claim…

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(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Fed. R. Evid. 408.

Louisiana Code of Evidence Article 408 similarly excludes evidence of settlements for

the purpose of “proving or disproving liability or amount thereof” Article 408(A) provides:

In a civil case, evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, anything of value in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount… This Article also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

La. Code Evid. Ann. art. 408. But, unlike Federal Rule of Evidence 408, Louisiana Code of

Evidence Article 408 does not stand alone.

Louisiana Code of Evidence Article 413 additionally provides that “[a]ny amount paid in

settlement or by tender shall not be admitted into evidence unless the failure to make a settlement

or tender is an issue in the case.” Based on Articles 408 and 413, Louisiana courts have held that

“[g]enerally, evidence of a compromise or offer to compromise is inadmissible insofar as it may

tend to establish liability.” Reeves v. Grove, 2010-1491 (La. App. 4 Cir. 9/21/11), 72 So. 3d

1010, 1015.

b. Settlements May Be Admissible To Prove Severity Of Injuries.

Federal Rule of Evidence 408 has been interpreted as allowing the introduction of

settlement terms pertaining to another dispute or litigation to assist the trier of fact in

understanding the case. See Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284 (6th

Cir.1997); Bradbury v. Phillips Petroleum Co., 815 F.2d 1356 (10th Cir.1987).

In Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284, 1293–94 (6th Cir.1997)

(citation omitted), the court observed that “Rule 408 only bars the use of compromise evidence

to prove the validity or invalidity of the claim that was the subject of the compromise, not some

other claim.” The court concluded however: “Evidence of the compromise of a claim different

than the claim currently in dispute therefore is admissible unless ‘the compromise evidence

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require[s] an inference as to the offeror's belief concerning the validity or invalidity of the

compromised claim.” Id. at 1294.

In contrast, there is disagreement (even within the same Court of Appeal) as to whether

Louisiana Code of Evidence Article 413 should be interpreted as rendering evidence of

settlements inadmissible for any purpose. Compare Alexander v. Tate, 2009-844 (La. App. 3 Cir.

2/3/10), 30 So. 3d 1122 with Deville v. Frey, 2010-1290 (La. App. 3 Cir. 5/4/11), 63 So. 3d 435,

writ denied, 2011-1157 (La. 9/23/11), 69 So. 3d 1158.

The authors of the Handbook on Louisiana Evidence Law have explained that the

purpose of Article 413 as follows:

This Article was particularly designed to protect a plaintiff in a personal injury suit from the introduction of evidence that would inform the jury of the amount plaintiff received in settlement from other alleged tortfeasors, or the amount received by other claimants in settlement of their claims against the defendant, when the purpose of such evidence is to minimize the value of plaintiff's claim, or suggests that he has already received adequate compensation.

George W. Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on Louisiana

Evidence Law, 410 (2008 ed.). Based on that purpose, the authors concluded that Article 413

should not be given such broad scope and the amount paid in settlement should be admitted

whenever it has independent relevance and satisfies the balancing test of Article 403:

The authors then correlate Article 413 to Article 408, explaining that while Article 408 excludes evidence of settlements for the limited purpose of “proving or disproving liability or amount thereof,” Article 413 is written in broader terms than Article 408 and that it “seemingly mak[es] evidence of settlements ... inadmissible for any purpose.” Id. The authors continue, however, noting: “It is believed that [Article 413] should not be given such broad scope, and where the amount paid in settlement or tender has a relevance independent of its tacitly forbidden use, it should be held admissible, subject, of course, to the balancing test of Article 403.”

Alexander v. Tate, 2009-844 (La. App. 3 Cir. 2/3/10), 30 So. 3d 1122, 1130 (citing George W.

Pugh, Robert Force, Gerald A. Rault, Jr., and Kerry Triche, Handbook on Louisiana Evidence

Law, 410 (2008 ed.)).

In Alexander v. Tate, 2009-844 (La. App. 3 Cir. 2/3/10), 30 So. 3d 1122, 1124, plaintiff

Donald Alexander was involved in a motor vehicle accident on August 3, 2005 and on March 3,

2008. Plaintiff proceed to trial on his claims arising out of the August 3, 2005 accident after

accepting $8,000 in settlement of his claims arising out of the subsequent March 3, 2008 car

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accident. During the trial, plaintiff sought to introduce evidence of the nominal settlement

amount “to establish that he was not seriously injured” in that subsequent accident. Id. at 1129.

Defendant objected based on Article 413, but the trial court overruled the objection and allowed

the plaintiff to introduce the amount of the settlement. On appeal, the Louisiana Third Circuit

found that the trial court did not commit manifest error, holding:

We find the Handbook on Louisiana Evidence Law's observations regarding Article 413 and the federal jurisprudence persuasive and conclude that the trial court did not commit manifest error when it allowed Mr. Alexander to state the amount for which he settled his claim arising out of the March 2008 accident. Clearly, the settlement of this second accident did not involve the parties to this litigation, and it was relevant as to the severity of the injuries Mr. Alexander sustained in that accident

Id., at 1130–31.

In Deville v. Frey, 2010-1290 (La. App. 3 Cir. 5/4/11), 63 So. 3d 435, 436, writ denied,

2011-1157 (La. 9/23/11), 69 So. 3d 1158, plaintiff John Clyde Deville was involved in a motor

vehicle accident on January 18, 2007 and June 22, 2008. Plaintiff proceeded to trial on his claims

arising out of the June 22, 2008 accident after accepting $450,000 in settlement of his claims

arising out of the earlier January 18, 2007 settlement. During direct-examination, “Mr. Deville

acknowledged it was difficult to quantify the difference in pain, but stated there was definitely a

deterioration of his condition immediately after the June 22, 2008 accident.” Id., at 437. During

cross-examination, defendants cited Alexander, supra, and persuaded the trial court to allow the

introduction of the settlement (of the earlier accident) for $450,000. Id.

In Deville, supra, the Louisiana Third Circuit refused to follow its holding in Alexander,

and decided to give Article 413 broad scope instead of correlating it with Article 408. The court

explained:

Although Article 413's language in plain English recites that settlement awards “shall not” be admissible except in the limited instance where the failure to make a settlement is an issue in the case, the noted comments have apparently spawned cases employing the balancing test found in La.Code Evid. Art. 403, generally applicable to the admissibility of evidence.1 We are satisfied that the rules of statutory construction and interpretation require us to apply the more specific language found in article 413.

63 So. 3d at 439. Based its statutory construction of Article 413, the court found that “the

trial court legally erred in allowing the settlement amount to be introduced to the jury under the

circumstances presented in this case.” Id., at 439.

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c. Settlements Are Admissible To Impeach.

Louisiana state courts have allowed the introduction of settlements as relevant to

determining the credibility of a witness. See Belanger v. Employers Mut. Liab. Ins. Co. of Wis.,

159 So. 2d 500, 508 (La. Ct. App. 1963)(“we believe the release granted by Ladouceur in

consideration of the settlement received to be of probative value in determining the veracity of

his testimony at the trial. This is especially so in view of his obvious interest in the outcome of

this present litigation and his prior statement of March 31, 1960, which is utterly conflicting and

completely irreconcilable with the evidence he gave upon the witness stand.”).

Louisiana state courts have also allowed introduction of a settlement to impeach a

plaintiff who testified that she could not afford treatment. See Reeves v. Grove, 2010-1491 (La.

App. 4 Cir. 9/21/11), 72 So. 3d 1010, 1015 (“At trial, when questioned as to why she did not

undergo the tooth implant surgery, Ms. Reeves testified that she could not afford it. Thereafter,

the trial court allowed the introduction of evidence of funds received by Ms. Reeves during the

time frame of her treatment. We find that the information properly admitted as an aid in the

jury's determination of the plaintiff's credibility and veracity.”).