A “Daubert Challenge” generally means a request to exclude a potential expert’s testimony. In most courts, an expert is one who possesses knowledge, skill, experience, training, or education and testifies in the form of an opinion about scientific, technical, or other specialized knowledge. There are five important considerations. First, the evidence must be scientific, technical,…
Legal Articles
Real Party in Interest
Missouri Civil Procedure Rule 52.01 requires that “every civil action shall be prosecuted by the real party in interest.” But who or what is a “real party in interest”? The real party in interest is a party having a “justiciable interest susceptible of protection through litigation.” Perkinson v. v. Burford, 623 S.W.2d 30, 34 (Mo….
Preserving Error, Appeals
When appealing a judgment in Missouri, the appealing part must demonstrate that he or she raised the relevant issues before the trial court. Indeed, “[a]n issue that was never presented to or decided by the trial court is not preserved for appellate review.” State v. Davis, 348 S.W.3d 768, 770 (Mo. 2011). The reasoning for this…
Comity
Sounding similar to “comedy,” comity comes up when there are multiple similar lawsuits pending. In an intrastate context, there are specific rules, like ademption or the pending action doctrine, which deal with how successive, similar lawsuits may be addressed. Comity, however, usually comes up in an interstate context. Comity is where one state court defers…
Strict Construction and Interpretation
“Strict construction” is a method of interpreting language in a legal document. It can also apply to statutes. Strict construction “presumes nothing that is not expressed.” Robinson v. Hooker, 323 S.W.3d 418, 423 (Mo. App. W.D. 2010). It means that the language “shall not be extended by implication beyond the literal meaning of the terms…
Unfair Prejudice, Evidence
Evidence is inadmissible if it is “unfairly prejudicial.” Stated differently, if the “prejudicial effect substantially outweighs the probative value, the evidence is unfairly prejudicial…and must be excluded.” Shallow v. Follwell, 554 S.W.3d 878, 885 (Mo. 2018). When is evidence “prejudicial”? “Evidence is prejudicial if it tends to lead the jury to decide the case on some basis…
Statutory Interpretation Canons
When interpreting statutes, Courts follow certain rules or cannons of construction. Generally, the rule is to give effect to legislative intent as reflected in the plain language of the statute at issue. Parktown Imports, Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. 2009). There are “fancier” rules of interpretation depending on the situation….
“Transfers” Fraudulent Transfer Act
The fraudulent transfer act allows a creditor to unwind property transfers designed to defeat a creditor’s rights. “To set aside a transfer as fraudulent under the [Missouri Uniform Trust Act], it is necessary to show that the transfer was made with an intent to hinder, delay, or defraud creditors.” Birkenmeiner v. Keller Biomedical, LLC, 312…
Probate Exception to Federal Jurisdiction
There are two main ways for a lawsuit to end up in federal court. First, if the lawsuit “arises under” federal law. This is sometimes called federal question jurisdiction. Second, if there is diversity jurisdiction. There are, in turn, two main requirements for diversity jurisdiction: the amount in controversy must exceed $75,000 and all of…
Witness Sequestration Rule
“Witness sequestration” refers to a Court barring witnesses from the court room when a trial is being conducted. The purpose of the rule is two-fold: (1) it prevents a witness from “tailoring” testimony and it (2) aids in detecting testimony that is less than candid. Mitch Crawford Holiday Motors, 987 S.W.2d 359, 365 (Mo. App….