Gambling With Doctrine Of Chances In Construction Cases

By Gregg Jacobson, Chamberlain Hrdlicka White Williams & Aughtry (December 9, 2016, 4:45 PM EST) -- Federal Rule of Evidence 404(b) is significantly underutilized in civil construction cases. Typically thought of as a criminal evidentiary statute, Rule 404(b) excludes evidence of one's character or actions as proof that one acted in conformity with that character trait. However, there are exceptions to the rule.

One exception is particularly underused. Though not listed in the statute, the "doctrine of chances" may be used to admit this type of "other acts" evidence. Under this theory of admissibility, for example, one could show a jury that the owner underbid in multiple past projects, and thus that the owner's actions underbidding in...

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