Presentation of evidence — MCQs

A corporation’s general counsel asked an outside accounting consultant to help counsel understand technical billing records so that counsel could provide legal advice concerning a threatened fraud suit. Employees sent the consultant records and explanations at counsel’s direction, and the consultant sent counsel a confidential analysis. After suit was filed, the corporation voluntarily produced the consultant’s analysis to the opposing party to support a settlement position but withheld the employees’ underlying communications. The opposing party moves to compel those communications, arguing that production of the analysis waived attorney-client privilege for all communications concerning the billing dispute. The governing waiver rule provides that an intentional disclosure in a federal proceeding extends to undisclosed communications only when they concern the same subject matter and fairness requires consideration together. Which of the following is the corporation’s strongest response?

A business owner privately consulted an attorney about a threatened fraud suit and described potentially damaging negotiations with the claimant. The attorney gave legal advice and warned the owner to keep their communications confidential. The next day, the owner voluntarily sent a detailed email to a trade-association mailing list containing 40 unrelated business owners. The email quoted the attorney's advice and summarized the facts the owner had disclosed during the consultation. After litigation began, the claimant sought testimony from the attorney concerning the same disclosed communications. The owner asserted attorney-client privilege. Which of the following is the claimant's strongest argument for compelling the testimony?

In a civil action arising from a collision, a mechanic testified for the defendant that the defendant's brakes were in good working order two days before the accident. During cross-examination, the plaintiff's lawyer asked whether the mechanic was being paid a monthly retainer by the defendant's insurance company to serve as an expert witness in litigation matters. The mechanic admitted receiving such payments. The plaintiff then proposes to call the insurance company's claims manager to testify about the amount and frequency of these payments, to show the mechanic's bias. The defendant objects on the ground that the mechanic already admitted the payments. Which ruling is most appropriate?

A pedestrian sued a delivery company after being struck by one of its vans. At a pretrial deposition, the van's employee-driver testified under oath that he had been reading a dispatch message immediately before the collision. At trial, the employee testified for the company and stated that he had not looked away from the road. The pedestrian's lawyer asks the employee about the deposition testimony and offers the relevant certified transcript both to impeach him and to prove that he was reading the message. The employee remains on the stand and is available for cross-examination. How should the court treat the deposition statement?

In a criminal prosecution arising from a nighttime collision, the government calls a pedestrian who testifies that the defendant drove through a green light. The prosecutor asks whether the pedestrian told an investigating officer immediately after the collision that the light was red. The pedestrian denies making that statement. The government proposes to call the officer, who would testify that the pedestrian said, "The defendant entered against the red light." The pedestrian was not under oath when speaking to the officer, and the government offers the statement both to impeach the pedestrian and to prove that the light was red. The pedestrian remains available for further examination. Which of the following is the court's most appropriate ruling?

In a civil negligence action arising from a highway collision, the plaintiff calls an eyewitness who testifies that the defendant entered the intersection against a red light. On cross-examination, the defendant seeks to impeach the eyewitness with a three-year-old conviction for felony aggravated assault. The offense was punishable by five years of imprisonment but did not require proof of a dishonest act or false statement. The eyewitness completed the sentence two years ago. The defendant has a certified copy of the conviction and does not seek to use the underlying conduct as substantive evidence about the collision. The plaintiff objects that assault is unrelated to truthfulness. Which of the following best states the applicable rule?

Immediately after a driver struck a cyclist in a crosswalk, the driver approached the cyclist and said, “I was reading a text and did not see you. I will pay all your hospital bills.” No one had yet discussed litigation, the amount of any claim, or whether the driver was legally responsible. The cyclist later sued the driver for negligence and seeks to introduce the entire statement. The driver objects based on the rules governing offers to pay medical expenses and compromise negotiations. Which of the following best states how the court should treat the statement?

In a civil action arising from a warehouse fire, the owner calls a security guard who testifies that he saw the defendant's employee leave the loading area immediately before smoke appeared. During cross-examination, the guard denies telling an investigator on the morning after the fire, “It was too dark for me to identify anyone.” The investigator personally heard and recorded the statement. The owner objects when the defendant proposes to call the investigator to recount it. The statement was not made under oath or during a formal proceeding. Which of the following is the strongest basis for admitting the investigator's testimony?

A driver sued a contractor after their vehicles collided at an intersection. At trial, the contractor’s employee testifies for the contractor that the traffic signal was green when the employee entered the intersection. During a deposition in the same action, while under oath and represented by counsel, the employee testified that she could not remember the signal’s color. The driver has the certified deposition transcript and asks to introduce that testimony both to impeach the employee and as substantive evidence that the employee did not observe a green light. The contractor objects on hearsay grounds. How should the court rule?

In a civil trial arising from a warehouse fire, a maintenance technician testified for the defendant that he inspected the building's electrical panel on the morning of the fire and found no damaged wiring. At his deposition in the same action, while under oath and subject to questioning by both parties, the technician testified that he had not inspected the panel that day. The plaintiff confronts the technician with the deposition testimony and offers the relevant portion of the deposition for its truth as well as to challenge his trial testimony. The technician remains on the stand and can be cross-examined. How should the court rule?