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All too often, plaintiffs’ lawyers consciously choose trial tactics that largely ignore the operative facts and, instead, focus on some unrelated but potentially inflammatory incident in a corporate defendant’s past. This usually occurs in cases where the facts tend to be more benign and may not by themselves spawn emotional reactions in the jury. A typical example is where a company was criticized or sanctioned for being less than candid in discovery in a different lawsuit, for withholding information during a previous governmental investigation unrelated to this lawsuit or for discarding documents through a document retention program. With this evidence of “unsavory” conduct, plaintiff seeks to convince the jury that because the company was bad before, the company is bad now, or that because the defendant purportedly lied before, the jury should not believe what it is saying today. Defense counsel should recognize that what really is happening is that the plaintiff is trying to introduce character evidence, and that the plaintiff intends to use that evidence to show that the corporate defendant acted “in character.” Counsel must take all necessary steps to halt this effort to prejudice the company in the jury’s eyes. In order to defend against these schemes, a corporate defendant needs to anticipate the various ways in which plaintiffs could try to characterize this evidence to get it before the jury. One mechanism plaintiffs’ lawyers have used with increasing frequency is Fed. R. Evid. 404(b) — “other crimes, wrongs or acts.” Plaintiffs will argue that this “other acts” evidence is being offered only to prove motive, preparation, plan, intent or opportunity — all appropriate uses under Rule 404(b). There are a number of arguments that a defendant should consider undertaking in response to this type of evidence when offered under the guise of Rule 404(b). RESPONSE TO RULE 405 AND RULE 404(B) ATTACKS The corporate defendant should try to focus the court back onto the true nature of the evidence — i.e., it is character evidence offered to prove that the party acted in harmony with its character. In steering the court back to the truth behind the reasons this evidence is being offered, counsel should point out that Rule 405 governs allowable methods of proving character, and that Rule 404 deals with the admissibility of character evidence. Fed. R. Evid. 405, Adv. Comm. note. The rules must be construed in tandem. Rule 405 specifies only three methods a party may use to prove character: (1) opinion testimony, (2) reputation testimony and (3) specific instances of conduct. Weinstein’s Evid. Manual, � 7.02 [1], at 72-43. Rule 405 clearly states that a party may use specific instances of conduct only if “character or a trait of character is an essential element of a charge, claim or defense.” Fed. R. Evid. 405(b). See Schafer v. Time Inc., 142 F.3d 1361, 1372 (11th Cir. 1998). Character is an essential element in claims such as defamation, negligent hiring or entrustment, not in a product liability lawsuit. The rationale behind Rule 405′s limits on proving character may appeal to the court’s sense of brevity. Rule 405 prohibits evidence of specific conduct, unless an element of the claim, for practical reasons. The jury may give this evidence too much weight. Evidence, and particularly counter-evidence proffered by the corporate defendant about its ethics, community service or importance of safety, in response to the alleged misconduct will consume a great deal of time. In addition, jury confusion is a likely result of this type of character battle. If Rule 405′s prohibition against using specific instances of conduct to prove character fails to carry the day, a party should still argue that character evidence is not admissible to show that a party acted in conformance with its character. SeeFed. R. Evid. 404(b). Although this position is derived from the “this is character evidence” argument, the court may exclude the evidence if a party reiterates that the evidence does nothing except generally show the defendant in a bad light. As Wigmore wrote, it “has long been accepted in our law�[t]hat the doing of one act is in itself no evidence that the same or like act was done again by the same person.” 1 Wigmore, Evidence, � 192, at p. 642 (3d ed). A defendant may encounter situations where the conduct does not rise to the level of a “crime” or a “wrong.” Under these circumstances, some courts have construed “acts” strictly, as applying only to those that resemble crimes or wrongs. In United States v. Cook, 557 F.2d 1149, 1152 (5th Cir. 1977), the government, at trial and over objection, entered into evidence the defendant’s consent entry to an injunction preliminarily enjoining him from violating 15 U.S.C. �� 77e(a), 77e(c) and 77q(a). The government argued that this stipulated injunction was admissible under Rule 404(b) to show defendant’s motive and intent to commit mail fraud — the crime at issue. The Fifth Circuit reversed and held that the admission of this evidence as to one defendant was in error because, to invoke Rule 404(b), the acts must be “wrongful acts.” Id. USING RULE 403 If the court remains unconvinced after employing Rules 405 and 404, Rule 403 challenges have proved successful. Federal Rule of Evidence 403 provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” The majority of reported decisions excluding “other acts” evidence in civil contexts employ Rule 403′s balancing test. In Goulah v. Ford Motor Co., 118 F.3d 1478 (11th Cir. 1997), Ford, at trial, offered evidence of the fact that a National Highway Transport Safety Administration (NHTSA) investigation of the Bronco II’s alleged handling and stability problems was closed because the agency did not believe that further expenditure of resources was warranted. On appeal, plaintiffs challenged the district court’s exclusion of the testimony of an ex-Ford employee who would have contended, among other things, that Ford destroyed, altered and withheld documents during an earlier NHTSA investigation into an alleged wheel separation defect. Plaintiffs argued that Ford’s conduct during the wheel separation investigation was admissible under Rule 404(b) to establish Ford’s modus operandi, i.e., that Ford altered, destroyed and withheld documents from NHTSA and, therefore, NHTSA’s investigation of the Bronco II was not trustworthy. The U.S. Court of Appeals for the Eleventh Circuit affirmed the district court on Rule 403 grounds. It held that the prejudice of the wheel separation investigation outweighed its probative value because it was unrelated to NHTSA’s Bronco II investigation, and it occurred six years before the Bronco II investigation. Another federal court that ruled on “other acts” evidence followed Rule 404(b)’s standard and engaged in a Rule 403 analysis. Coursen v. A.H. Robins Co., 764 F.2d 1329 (9th Cir. 1985). Coursen was a product liability case involving physical injuries alleged to have resulted from the use of the Dalkon Shield. Plaintiffs offered, under Rule 404(b), evidence that the defendant engaged in fraud in reporting pregnancy rates, or that it intentionally underreported the incidences of pregnancy that occurred despite use of the device. The Ninth Circuit, using Rule 404(b), held that excluding the evidence was correct because “[t]he overwhelming thrust of this evidence was to have the jury believe that because defendant lied about the effectiveness of the Dalkon Shield, it lied about the safety of the device as well.” Id. at 1335. The appeals court also held, under Rule 403, that the district court properly excluded the evidence because of the prejudice and confusion that would be generated by “innuendos of collateral misconduct.” Id. See also Monger v. Cessna Aircraft Co., 812 F.2d 402, 406 (8th Cir. 1987) (excluding in product liability action a letter to Cessna from the FAA referring to Cessna’s misconduct in failing to identify service problems with other models of its aircraft that were not the subject of the lawsuit on grounds of confusion). WHEN ALL ELSE FAILS If the Rule 405, 404 and 403 arguments all fail, bear in mind that any suggestion from the trial court that a limiting instruction will cure the existing prejudice should be respectfully rejected. “The naive assumption that prejudicial effects can be overcome by instructions to the jury�all practicing lawyers know to be unmitigated fiction.” Bruton v. United States, 391 U.S. 123, 129 (1968), quoting Krulewitch v. United States, 336 U.S. 440, 453 (1949). In conclusion, the better a corporate defendant’s case is from a design and development perspective, the more likely that plaintiffs will attempt to try the case by attacking credibility through unrelated and often temporally remote other acts. Defense counsel should be prepared to limit, to the extent possible, the admissibility of this evidence by using arguments that the combination of Rules 405, 404 and 403 preclude its introduction. Christopher Meyer and Habib Nasrullah are directors at Wheeler Trigg & Kennedy P.C., in Denver. Telephone: (303) 292-2525.

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