What is the difference between comparative negligence and assumption of the risk?

This Lawdible helps students learn to recognize the differences between the two most important  affirmative defenses to a negligence claim — assumption of the risk and comparative negligence.  Professor Fordham works through a hypothetical that highlights the differences between assumption of the risk and comparative negligence.  He then explains a narrow, but essential exception to the rule for assumption of the risk, often referred to as “primary” assumption of the risk. Professor Fordham shows how primary assumption of the risk is different from secondary assumption of the risk and suggests keys to applying these affirmative defenses.

Professor Brigham Fordham is an Associate Professor at Phoenix School of Law.

When hearsay is introduced against a party, that party may impeach the Declarant using any techniques that could be used against a witness who testifies live in court. For example, evidence of past convictions related to truth-telling may be introduced, to show that jury that the declarant has a character trait of untruthfulness. Similarly, opinion and reputation evidence about that character are admissible.  Proof of bias in any form can be introduced to show that the declarant may have had a motive to shade his or her statements in a particular direction.

With regard to inquiring about past bad acts relevant to truth-telling, that technique can be used against a live-in-court witness, but probably cannot be used where a hearsay declarant is sought to be impeached, since the declarant is not on the witness stand to hear and answer a question about his or her past acts.

Here’s Professor Best’s faculty bio.

Professor Glesner Fines’ faculty biography can be found here.

We don’t have a specific CALI Lesson to pair with this Lawdible. But Professor Glesner Fines is a prolific CALI Lesson author and has written many Professional Responsibility CALI Lessons listed here.

When a party wants to show how someone acted out of court, using character evidence for that purpose is generally prohibited. But when a party wants to show that a witness likely lied while testifying, character evidence about the witness’s character trait for truthfulness is allowed.  In the first situation, character evidence to show conduct out-of-court, risks of prejudice against the defendant are high, and the vagueness of character evidence is particularly problematic.

When character evidence is offered to show whether a person lied on the witness stand, the risks of prejudice against the defendant are reduced since the witness may not be the defendant. Also, the probative value of the character evidence is likely to be high, since the trait – truthfulness – is clearer than other traits such as violence, and the conduct to which the trait is linked, testifying, may be less complex than much other conduct in the world.

CALI Lesson Pairings: Impeachment and Rehabilitation of Witnesses and Character Evidence Under Federal Rules.

Here’s Professor Best’s faculty bio.

The discussion clearly highlights how the two concepts should be treated in each class.

CALI Lesson pairings: Causation in Fact (Torts) and Causation (Criminal Law)

Here’s Professor Garfield’s faculty profile.

Apparently, even though there are big risks of prejudice and imprecision when we admit character evidence to show action in conformity with that character, some common-sense feelings about that evidence support the use of some major exceptions to the prohibition.

A defendant may introduce evidence of his or her own good character and may introduce evidence about an alleged victim’s character for aggressiveness, for example. The prosecution may respond with additional character evidence.  The combination of a general prohibition and a variety of exceptions suggests that the law may have only moderate allegiance to the basic anti-propensity rule.

CALI Lesson pairing: Character Evidence Under Federal Rules

Professor Best’s faculty profile is here.

In this Lawdible, Professor Karin Mika of Cleveland-Marshall College of Law gives advice on how to make the best case law selection when writing a memo covering a state law issue.

CALI Lesson Pairing: Decision Point: State or Federal?

Here is Professor Mika’s faculty profile.

In this Lawdible, Suspect’s Right To Counsel, Professor Edwin Butterfoss of Hamline University gives you a very straightforward  checklist for tackling the legal questions involved with a suspect’s right to an attorney.

CALI Lesson Pairings: Miranda I: Custody, Interrogation and Waiver and Miranda II: Assertion of the Rights, Exceptions, and Other Limits both written by Professor Butterfoss.

You can find Prof. Butterfoss’ Hamline faculty bio here.

Audio: Legal Issues involving Cohabitation of Unmarried Couples by Len Biernat

CALI Lesson Pairing: Cohabitation

Find Professor Biernat’s bio here.

In this Lawdible Professor Best covers different scenarios where one might offer an out-of court statement for reasons other than the truth of the matter asserted, such as to show that someone who heard a statement had notice or knowledge about something. The analysis reviews the underlying rationale for the hearsay rule, explaining how cross-examination can probe a speaker’s perception, memory, choice of words and apparent honesty. When those aspects of a speaker’s statement would be trivial, the hearsay bar is usually withdrawn.

Audio: Hearsay – How to tell if a statement is offered for truth of the matter asserted by Prof. Arthur Best

CALI Lesson Pairing: The Definition of Hearsay and the Federal Rules Part 2: Statements and What They Assert

Other CALI Lessons of interest:  The Concept of Hearsay, Hearsay From Square One: The Definition of Hearsay, and The Hearsay Rule & Its Exceptions

Arthur Best is a professor of law at the University of Denver Sturm College of Law. He teaches Evidence and Torts, and is the author of a leading student guide to Evidence Law, Evidence: Examples and Explanations. He also is the editor of twice-yearly Supplement Volumes to the treatise Wigmore on Evidence

We know that simple negligence (for example, a missed filing deadline) can result in malpractice liability for the attorney. But the question about attorney discipline and incompetence for negligent errors is a trickier one. Listen to her Lawdible below for a further explanation.

Audio: Can Simple Negligence Equal Attorney Incompetence? – By Barbara Glesner Fines

If you like this Lawdible try Prof. Glesner Fines’ Professional Responsibility CALI Lesson on Basis for Attorney Discipline.

Find Professor Glesner Fines’ bio here.