Fundamental Skill of Laying the Foundation

Importance and Purpose?

Laying a foundation is key during questioning of a witness. It is a basic skill for a trial lawyer. Without it, we can't get important information from a witness. This stops us from proving facts. It also stops us from introducing documents and giving context to the jury.

Understanding the purpose and value of laying a proper foundation helps us question all witnesses better, regardless of whether the witness is lay or expert, friendly or hostile.

Laying the foundation gives context to the testimony. It explains to the jury why the testimony is important. It explains what a witness knew or saw or heard and why they did what they did.

A proper foundation establishes the frame for a set of facts. It can make the ultimate fact elicited from the witness an “aha” moment for the jury. A no-brainer.

An Example: Establishing an Expert?

Here's an example from the trial. A large work truck with 1200 pounds of water in a tank on the back ran a red light and hit my client's vehicle. After the crash, at the hospital, the doctors performed a CT scan of his head, amongst other things.

After several years of litigation, they asked me to come and try this case. Even though the crash knocked my client unconscious in the wreck, there was no significant brain injury workup.

But his chiropractor had treated him for brain injury. She noted in her records that the plaintiff had brain injury symptoms that lasted for several months. So, if I were going to talk to the jury about brain injury, I would have to do it through the chiropractor.

The ultimate fact I wanted the chiropractor to know was this: “The plaintiff suffered a traumatic brain injury in this crash”

You may be thinking, why would a chiropractor ever be able to diagnose a brain injury in court? When I spoke to the chiropractor before the trial, I asked that exact question.

It turns out that this chiropractor actually treated this client for brain injury during the treatment. She had a history of working pro bono to diagnose and treat veterans suffering from traumatic brain damage. She was qualified through her education, training, skills, and experience. She could testify about diagnosing and treating brain injuries.

But I had to lay a foundation for the chiropractor to be able to say that. I had to establish the chiropractor as a brain injury expert. Here’s how I did it:

Q. What kind of doctor are you?

A. I'm a chiropractor.

Q. What kinds of things do you do to treat your patients as a chiropractor?

A. Well, my practice consists of chiropractic, physical therapy, and also cognitive rehabilitation.

Q. What is cognitive rehabilitation?

A. That's when we work to rehabilitate people who have suffered brain injuries.

Q.. How long have you been doing that?

A. For a very long time. Even though I’m retired from chiropractic medicine, I still treat our veterans who have suffered brain injuries pro bono. I enjoy treating these veterans with cognitive therapy for free.

Q. When you’re treating people for brain injuries, are you also involved in diagnosing them for having a brain injury?

A. Yes.

Q. Where did you learn to do that?

A. I studied it in school and trained to do it for a long time. I'm licensed in neurorehabilitation through neurofeedback.

Q. Are you qualified to diagnose people with brain injuries through your education, training, skill, and experience?

A. Yes.

Q. When you saw the plaintiff after this crash, were you concerned he had a brain injury?

A. Yes.

Q. Why?

A. Because of how he was acting and how the crash happened.

Q. Tell us about that.

A. When I first saw him, he was speaking slowly and mumbling some words. I asked if he'd hit his head, and he said yes. I saw in the ER records that he had a CT scan of his head. I also reviewed the circumstances of the crash to make sure it fits with what he was saying, which it did. Then, I tested his cognition.

Q. What does that mean?

A. I asked many questions to see if he showed obvious signs of brain damage. He did. Besides reaching for words and mumbling, he was also unable to follow simple instructions. When I asked him to stick out his tongue, it moved oddly on the left side. That’s a sign of brain damage to the left side of his head, which is what he hit in the crash. So everything fit. He was positive for all these tests.

Q. Did you diagnose the plaintiff with a brain injury?

A. Yes.

Q. Did the plaintiff suffer a traumatic brain injury in this crash?

A. Yes.

Every question I asked was to lay the foundation for the last question. When the jury hears the answer to the last question, they should think, “That makes sense.”

An Expert Witness is Crucial

To be a good trial lawyer, we need to be able to qualify an expert witness by laying a foundation. We qualify an expert to testify about certain topics through their knowledge, skill, experience, training, and education. We need to memorize these foundational qualifications. But we also need to know what they mean and how to use them quickly.

Laying a foundation for an expert comes up repeatedly in depositions and at trial. We need to think about these qualifications as we litigate our case.

What is the expert’s background? How do they know to testify that the plaintiff suffered these injuries? What skills have they developed? Do they have any experience doing what we’re asking them to testify about? Have they received any training or education that allows them to testify about certain topics?

The questions we ask our experts to answer must lay their foundation. They must show the expert’s knowledge, skill, experience, training, and education for the specific topic we want to testify on.

An Example: Proving through Knowledge?

Here's another example from the trial. Same concept, we're trying to prove a brain injury. Our life care planner recommended the plaintiff go see a neurologist for a possible brain injury from the crash. We want the Life Care planner to answer this question:

Why did the emergency room doctors take a CT scan of the plaintiff's brain?

The life care planner is not an emergency room doctor. I know that the defense should object when I ask the question at trial. I kept this in mind while planning this direct examination.

So I have to prove through knowledge, skill, experience, training and education that this witness is qualified as an expert to tell us what the emergency room doctors were thinking when they ordered the CT scan of the plaintiff’s head right after the crash.

This time, I want to force the defense to object before I lay the foundation. I do this to test the defense. I also do it because I believe it’s more persuasive to the jury.

Q. Mr. Life Care Planner, why did the emergency room doctors order a CT scan of the plaintiff’s head right after the crash?

Defense Lawyer: Objection, your honor! Improper predicate, lack of foundation.

Judge: Counsel, what's your response?

Plaintiff’s Counsel: I will lay a foundation

Q. Mr. Life Care planner. Are you a medical doctor?

A. Yes.

Q. Did you go to medical school?

A. Yes.

Q. In medical school, did you study emergency room medicine?

A. Yes. It's one of the specialties that we have to study. (I now have the foundation for education, knowledge, and training — but let’s keep going to make the defense look dumb for objecting)

Q. How many life care plans have you created for people?

A. It has to be at least 1000.

Q. In preparing those life care plans, do you routinely review emergency room medical records?

A. Yes.

Q. Why?

A. Because it’s important for me to be able to understand what was going on with the plaintiff right after the crash.

Q. Do you use those emergency or medical records to form your conclusions about what medical care the plaintiff needs from the crash? (Our experts have conclusions, the defense experts have opinions)

A. Yes.

Q. To do that, do you need to understand what emergency room doctors think when ordering certain tests?

A. Yes.

Q. Why?

A. The ER records give me a snapshot of what was going on with the plaintiff at that time. It helps me understand their injuries from the crash. I need this to make a life care plan.

Q. So why did the emergency room doctors order a CT scan of the plaintiff’s head when he went to the emergency room right after the crash?

A. Because they were concerned he had a brain injury.

Business Records Foundation

Another common foundation that trial lawyers need to be able to quickly lay is a business records foundation. We use this to authenticate documents to admit as exhibits. Remember, when a document is an exhibit, it can be published to the Jury and the Jury takes it with them to the jury room when deciding the case. So laying a business records foundation to admit documents is very important.

It is also one of the easiest foundations to lay. So it is a good fundamental to start with. It will come up repeatedly throughout a trial lawyer’s career. We will need to lay this foundation in depositions and at trial.

We need to memorize the questions and practice using them in different situations.

These are the four elements for authenticating a business record:

1. The record or document was made by a person with knowledge of the information contained in the record;
2. The record or document was made at or near the time of the event;
3. Making and keeping a record like this was the business's regular course of business;
4. This document was made and kept in the regular course of business.

In a trial recently, the defense objected to one of our medical records because it didn't have a business records affidavit attached to it. We called the doctor from that facility to the stand to testify, and I wanted to get that medical record into evidence. So I handed the doctor the medical record and said this:

Q. Doctor, do you recognize this document?

A.. Yes.

Q. What is it?

A. It's the medical record from when I saw the patient on June 1.

Q. Was that medical record created by a person with knowledge of the information contained in it?

A. Yes.

Q. Was it made at or near the time of the appointment that it records?

A. Yes.

Q. Doctor, is it your business's regular practice to make and keep medical records like this one?

A.. Yes.

Q. And was this particular record made and kept in the regular course of business of your business?

A. Yes,

Q. Your Honor. Plaintiff offers this document as an exhibit.

That record should come in even over an objection because we've properly laid the foundation to authenticate it. In state court, most exhibits are pre-admitted by agreement of the parties or ruling of the court. But in some state courts and in federal courts, exhibits are admitted on the fly during the trial. And trial lawyers need to be prepared to quickly lay the foundation in front of the jury and get important documents admitted.

Foundations can also be used with lay witnesses to establish their knowledge of certain facts that need to get into evidence. For example, let's say a witness is coming from the opposite direction of a person that ran a red light. The witness is going to say the light in his direction was red.

But the defense is going to argue that just because the light in his direction is red doesn't mean the light in the defendant’s direction is red. So we need to lay a foundation to have the witness testify about the color of the light in the defendant’s direction.

Q. Have you ever been through this intersection before?

A. Yes.

Q. How many times?

A. Almost every day for the last 10 years?

Q. Why?

A. I live near there.

Q. Have you been through that intersection in the opposite direction that you were going on the day of the crash?

Q. Yes.

When the light is red in the direction you were going on the day of the crash, what color is the light in the opposite direction the defendant was coming?

A. Red.

Q. So based on your knowledge and experience with that intersection did the defendant run the red light

A. Yes.

The testimony I ultimately wanted is now in without objection. In this example, laying the foundation is also a way for me to give context to the jury for why we can confidently say the defendant ran the red light.

A Basic but Essential Skill

Without laying that foundation the testimony would be much less persuasive. If all I can get out of that witness is that his light was red, I create a situation where the defense can easily argue that we don't know whether the light for the defendants was red. My case becomes less persuasive and less powerful.

Laying a foundation for both expert and lay witnesses is one of the most basic skills for trial lawyers. The skill makes our cases stronger and more persuasive. If we learn it well and can use it quickly, we can use it in depositions in the case. It will make our case so strong that the defense must settle or they face annihilation at trial.

Use depositions to practice your craft. Try laying different foundations. Do this to get testimony from both friendly and hostile witnesses. Then, you can turn your cases into ironclad proofs. The insurance company will beg you to settle. Or you'll be getting giant verdicts at trial.