A few things,

I think last time you posted ITT you said you were doing government work. It sounds like you are in the PI game now. While it is possible that opposing counsel is wrong, it takes more than an evidence class or book to be decent at litigation. You have to be in court constantly to get the experience that makes you a good litigator. The guy might very well be right. He could also be wrong, which brings me to...

Even if you are 100% wrong, it is not necessarily the wrong move to make that argument. There are times that you might want to:
(1) The judge may have been sympathetic to that argument in the past. After all, judges are people too. Judges make wrong decisions all the time.
(2) Rattle the opposition. When somebody loses their cool in court, they tend to lose. Lawyers have this overwhelming need to be right. That need to be right can be a malignancy that puts you at a disadvantage, especially when you are up against a very experienced lawyer that recognizes this principle and knows how to exploit it.

So what do you do? You do not argue with opposing counsel at all. Why are you making arguments at your opposition? Is he just going to wilt and succumb to your intellectual superiority? If opposing counsel is wrong, you file a motion and you make your arguments to the judge, the person that can actually do something about the other side being wrong.

Personally, I loved it when I had brand new prosecutors walk in, head held high, yelled at me and told me that if I didn't succumb to their amazing courtroom prowess and insurmountable evidence, that they were going to make sure my clients were punished for my hubris. It was my reason for getting out of bed in the morning.

No.

The way I read his question above was that he's got a screenshot of a website. Presumably he could have gotten the website as a digital file, maybe like a saved web browser history file. To me this is best evidence rule because theoretically a judge is going to want the web browser history (with metadata/html code whatever) over just a screenshot on an iphone because that's just a copy.

Nah, still doing Government. I said day job above and side work, this is all on the side stuff. It's why I like doing PI, because you don't usually have to go to court so I can work it in my off time.

It might help if I was more specific with the above. I have a default judgment. His lawyer is trying to negotiate settlement. She's been wrong about things like how service works, how forfeited LLCs work etc. She proposes settlement offers and then will write in sentences saying wrong things that really don't move the ball on a settlement issue. She also keeps asserting things like it's my client's fault they had to sue when it's clearly her client's. It's just annoying. I have told her some of these things, and she continues to say them.

Dave,

You are responding to my "no" response, where you said that a witness can explain what is going on in a surveillance video. That is just unequivocally wrong. A witness may not testify as to matters of which the witness does not have personal knowledge. It invades the province of the jury. I don't really want to get on Westlaw, but I did find this case within 30 seconds of googling that explains the concept pretty well.

As for a website. How exactly is metadata useful to a jury? If the website still exists as is, then you log on to the computer and show the website. If it doesn't, then the screenshot is fine.

This is how you handle this:

You write your motions for enforcing default, striking proposal for settlement, or whatever you want to file. You write opposing counsel and ask for her position. You set it for hearing.

She is stonewalling you. You can either move the case forward, or you can argue with her.

In the instance I was talking about I objected on lack of foundation for where the 4"x6" photo of the screenshot came from and authentication issues about the snapchat account belonging to the person they were saying it did. Both were overruled. Authenticating the 4"x6" photo seemed a foreign concept to judge and other attorney but it really looked like a cropped version of what they put in their pleadings which was not taken by the witness trying to introduce it. Line of questioning if it helps is attorney gets witness name on the record, walks up to witness, hands him a stack of photos and asks what they show.

For text messages for instance in the same circuit (county court, 7 judges total) I've had one not admit evidence without authentication from phone company, one admit over objection and one admit the texts by the witness but not the responses.

I don't think gender is an issue, she just knows the ins and outs better from interning for an attorney (and now sharing office space with him) who does PI/SSI primarily. Also she is just a way better people person than me so builds personal relationships with adjusters that I just can't and I guess it helps to some degree. I think she may get her first six figure rip next year. So excited. Going to try to parlay it into being a stay at home dad.

I'll admit to my reading comprehension being a little off this morning.

Yes, the cop relating what he remembers from the video is always going to be secondary to actually showing the video. I didn't really think of that when I read it this morning, but I think that's what you meant. Rather I thought you meant having a cop narrate what's going on in a video, that he may never have seen before (which isn't really about best evidence rule). That's much more common right? At least in this state this is routinely done, cops are routinely qualified as experts allowed to give their opinions on what's going on in a drug transaction going on, based on their training and experience (ie this is him handing the money for the drugs, this is him getting the drugs etc.).

Metadata is stuff like GPS coordinates, who took it, what time etc of photos posted on instagram. This is how they caught the guy who ran Silk Road, because a lot of people don't know that phones and instagram (I think) routinely saves this data. The FBI uses this stuff a lot. It would be best for evidence purposes if all this stuff came directly from facebook/instagram with a stamp authenticating it. But of course I'm sure that doesn't happen a lot of the time. So it would be useful to rebut "not me" as the OP was talking about, by saying no you took it, in this place, at this time, using your account.

So the copy of the evidence (ie the screenshot) is not the best evidence, compared to the available stuff from FB/Instagram etc.

Actually right now all I have is the default judgment in my client's favor, that becomes final in about 2 weeks. Defendant's attorney can only file a motion to vacate. I don't want a hearing, or anything that's going to undo what I got. The next step is garnishment if the judgment becomes final. So I don't want to do any of those things you say.

But I think your broader point is to ignore her being an r-tard. This was more of a big picture how do people deal with r-tard lawyers question.

I am going to reiterate that unless that witness saw the video footage live as it was happening, or was an undercover that was at the scene and was watching the transaction transpire, the witness may not narrate what is going on in the video. A witness may not testify about things of which they do not have personal knowledge unless if they are an expert. The objection is "invades the province of the jury." If they are seriously putting a cop down as an expert witness because of their training and experience with drug deals, then file a motion to exclude that testimony, especially if your jurisdiction uses the Daubert standard.

Oh, LOL we use Frye.

I don't have any criminal cases btw.

http://mcdaa.org/images/downloads/Re...timony_lay.pdf

Page 4, talks about what I'm talking about. I confirmed this with a former public defender of ten years who now works in my office, this morning. She was like maybe if they were fresh out of the academy they wouldn't count as experts. It's what I remember seeing from back in my day interning for the public defender as well.

It's almost as if different states have different laws, procedures, and general practices. But if that were the case, each individual state would need some sort of unique licensure process--an exam maybe, or some other way to ensure that a lawyer is prepared to practice in that individual state.

Alas, I can't think of anything like that, so it must be the case that one person is right and the other is wrong.

Dave, I am not going to keep going back and forth with this; I have a day job after all. I will say this, though:

(1) This started with you saying that the best evidence rule mostly deals with old documents, which I disagreed with, as it comes up all the time in litigation, such as when there is a surveillance video and second-hand testimony when somebody saw that surveillance video.

(2) That turned into your unqualified assertion that both the surveillance video and the second-hand testimony can come in, which I disagreed with because it invades the province of the jury.

(3) You then started turning it into an expert testimony issue, with a citation that talks about which kind of testimony is "expert testimony."

When you keep shifting goalposts like this, it can go on forever. There are times when a witness can describe what is going on in the video, such as when the person taking the video is watching it live, when the person witnessed the act live, or perhaps if there is expert testimony, but the general rule is that a witness may not.

Now, just because a witness says he is an expert does not make it so, and there are mechanisms in our justice system to prevent erroneous expert testimony. If you do any litigation, especially a PI case, you are going to have to attack expert testimony before the case goes to court, and it does not matter whether it is under Frye or Daubert.

Good luck!

Silkroad guy is an interesting example on use of metadata considering they had someone go up behind him, look at his computer screen and visually verify he was on the website prior to arresting him.

Can we tone it down a notch?

I admitted to not reading your original post correctly and agreed with you. I then explained what I thought you meant, and talked about that because to me it's a lot more interesting. Of course someone's memory is less reliable than the video, agreed. I conceded your point and moved on.





No, I explained how Maryland has a deviation from your rule in Florida. We allow police to be qualified as experts, you said Florida does not. They can't be experts in everything. As experts they can give their opinion. This is routinely done here. For instance one of the cases cited in the link talked about how an officer, as an expert, can testify as to a photo of drugs and money's meaning.





Not all of it. Some of it is about situations where cops count as experts which is what I tried to draw your attention to. Some of it talks about lay testimony because the prosecutor didn't want to qualify the cop as an expert, my guess is that the prosecutor would have lost on that.




This is a discussion board after all. Again, I conceded your point and moved on to talk about something not obvious.

The original example was about a cop, so that's what I've been going with. We all agree that lay witness cannot give opinions.





DUH. We both graduated law school around the same time. Can we tone it down? Oh yeah, and a ton of PI settles way before you get to that point. So no, not really.



Good luck![/QUOTE]

I actually hadn't heard that. All I knew is that they were tracking him due to metadata I believe. I've seen mention of other cases like this where people didn't know their photos on facebook/instagram had their GPS etc and they used that info. The context I'd seen is they figured out where someone was physically located from this data when they couldn't find him otherwise.

Well it does go to what you were talking about as well. I can only assume it was done in-part so they could get a cop on the stand who could say, "I saw him on SR logged in as DPR," if it came to a trial.

Dave,

Five years ago I had more fun needling you in this thread, with the inevitable temp-ban that resulted, but it doesn't really seem like something that will be as fun these days. So with that said: You're right about everything. You know it all. I even ninja-edited the word "Florida" out of all of my posts in this discussion to make you look silly.

I do remember that but I didn't know you got temp banned, thought you just got a talking to. Temp ban seems like a little much.

Honestly I think maybe lately I've had sort of a reawakening of how I feel about legal stuff. Government work has been more of a drag than I thought it would be, but I think partly it's that I probably need to move to a different agency. It's beyond ironic how Government is such a good job and yet attracts so many of the worst candidates. There's so much incentive to stay where I am and yet I spent most of the day today doing side work and the day flew by and I was loving it. A friend of mine left the country and he left me a bunch of work to do for him to finish up so maybe why I'm thinking about it more.

Grass is greener who knows.

filing an opening appellate brief in a federal circuit court is the most technically infuriating thing i think ive ever done in my life

Yeah given how huge the case was I would expect them to cover all bases if only to convince a jury more.

20 minutes after final...

DBag: Hey Man what did you think?
Me: (giving political response) eh, you know I thought it was difficult but fair, have no idea how I did - just hoping for the best.
Dbag: I thought that was the easiest f'ing test ever.
Me: (now I'm pissed) Oh?? did you spot that causation issue in relation to that guys death?
Dbag: Holy ****, no I didn't
Me: Maybe you shouldn't go around telling people how easy you thought the exam was then.

This is especially fun in relation to the bar exam.

saying "wow that was so easy" when discussing a law exam highly correlates with getting a bad grade

QFT