FRE 404(b) in Personal Injury Cases: Tipping the Scales With Evidence of Prior Bad Acts and Uncharged Incidents

This CLE course will guide personal injury lawyers through the benefits and risks of Federal Rule of Evidence 404(b) (and its state counterparts) in personal injury cases, exploring what the evidence in FRE 404(b) includes and what it does not, a subtle distinction; how to uncover prior bad acts or incidents; how to get that evidence admitted and best strategies for excluding it; and how to avoid not overlooking the usefulness of this rule in personal injury cases.

Evidence of prior bad acts admitted under Federal Rule of Evidence 404(b) can be very close to the proverbial silver bullet for personal injury attorneys in many cases, such as trucking, premises liability, negligence, intentional torts, and product liability. It has also carried the day in civil lawsuits alleging antitrust violations, securities fraud, trade secret misappropriation, and construction defects. This type of evidence can tip the scales on both liability and damages, including punitive damages.

Such evidence can be devasting to the person and case against whom it is offered. It can be a gateway to the jury for otherwise inadmissible evidence. If a plaintiff is aware of such evidence, counsel can draft the complaint to ensure similar acts will come into evidence. The defendant can do the likewise in its answer. But counsel must be well versed in what is not implicated by FRE 404(b) and thus admissible in its own right.

Counsel must understand the proper procedures for getting 404(b) evidence admitted and for excluding it. Courts are well aware of attempts to introduce inadmissible evidence and may be quick to exclude evidence that only becomes relevant and probative through inferences that the party against whom it is admitted acted in conformity with whatever the evidence of the prior act says about their character.

Listen as this experienced panel explores how this underutilized rule can be a powerful tool in personal injury cases.