The Deep Pocket Approach


(1) P v. D Company for damages suffered by P while he was working at a pressing machine at D Company, his employer. 's arm became caught in the machine and eventually had to be amputated. P alleges negligence in the maintenance of the press. During P's cross-examination of W, the general manager of the D Company plant, P's attorney asks W if D Company carries insurance against such accidents and, if so, in what amount. The attorney for D Company objects. What ruling and why?

(2) During the cross-examination of Dr. X, another witness for D Company who is called as an expert to testify on the operation and maintenance of the presses, P's attorney asks X if he has been retained by the Casualty Insurance Company. D Company's attorney objects. P makes an offer of proof that if allowed to testify, Dr. X will state that he has been retained by the Casualty Insurance Company and, further, that Casualty has insured D Company for losses of this sort up to $3,000,000. What ruling and why?

A recurring problem with the categorical rules of exclusion is that they all provide that the prohibitive evidence may be admitted if offered for other purposes. For example, Rule 411 does not require the exclusion of evidence of insurance when offered to prove agency, ownership, or control, or bias or prejudice of a witness. Moreover, prohibited evidence is often suggested to the jury by clever attorneys in various tricky ways even when it cannot be introduced for any admissible purpose. This, of course, raises ethical as well as practical questions. How do attorneys go about getting evidence of facts excluded by these rules before the jury? If evidence within the reach of these categorical rules is offered by an opponent and admitted over objection under a permissible purpose exception or is suggested to the jury improperly, how does one counteract its prejudicial effect? What limiting instructions should a judge give? How effective are they in these situations? How does the fact that evidence that is purportedly excluded by these rules nevertheless often gets before the jury affect your view on the wisdom of having these rules?

Consider these trial practice problems:

(1) You represent the plaintiff in a medical malpractice case. You want to get in evidence that defendant is insured up to $10,000,000. How do you do it (ethically)?

(2) You represent the defendant in the same case. You want to get in evidence that the defendant has no insurance. What do you do (ethically)?

(3) In the same case, you represent the defendant who has no insurance. If the plaintiff somehow floats the suggestion that the defendant is insured, what do you do?

(4) You represent the plaintiff in a negligence action against a supermarket. Plaintiff slipped and fell in the aisles. How do you (ethically) get in evidence that the supermarket changed from a wax floor polish to the non-skid variety a week after the accident?

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