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

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, October 20, 2021

Recorded event now available

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This CLE course will guide personal injury lawyers through Federal Rule of Evidence 404(b) (and its state counterparts), which has been described as the most controversial of the Federal Rules of Evidence and generates more published opinions than any other provision in the Federal Rules. The program will explore what the evidence in FRE 404(b) includes and what it does not, a very 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 not overlook 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.



  1. What evidence FRE 404(b) covers
  2. What evidence is never implicated by FRE 404(b)
  3. Admissibility
    1. Proper evidentiary purpose
    2. Relevant
    3. Probative value vs. prejudice
    4. Proper limiting instruction
  4. Application in different types of cases


The panel will review these and other pressing issues:

  • What standard should be applied when reviewing Rule 404(b) proper purpose determinations?
  • Do the rules governing the admissibility of character evidence apply to corporations or other entities?
  • What does it mean that Rule 404(b) is a rule of inclusion rather than exclusion?
  • What is "reverse" FRE 404(b) evidence?
  • What objections can be expected?


Haedicke, Stephen
Stephen J. Haedicke

Law Office of Stephen J. Haedicke

Mr. Haedicke focuses his practice on representing individuals in complex litigation, particularly criminal defense and...  |  Read More

Boggs, Beth
Beth C. Boggs

Managing Partner
Boggs Avellino Lach & Boggs

Ms. Boggs concentrates her practice in civil litigation involving construction defect, insurance coverage, employment...  |  Read More

Long, Felicia
Felicia A. Long

Hill Hill Carter Franco Cole & Black

Mrs. Long focuses her practice on complex civil litigation and insurance defense matters. She has successfully defended...  |  Read More

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