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Admissibility of Evidence of Habit and Routine Practice

Author: LegalEase Solutions

Under the Federal Rules of Evidence, evidence of habit and routine practice may be introduced to prove the conduct of a person/organization on a particular occasion.  Rule 406 reads in part:

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
To offer evidence of a habit, a party must at least demonstrate a regular practice of meeting a particular kind of situation with a specific type of response.     The Michigan Court of Appeals in Cook v. Rontal, 109 Mich. App. 220 (1981) has held, discussing MRE 406, which is substantially similar to its Federal counterpart:

Evidence of prior acts of a person may be admissible as evidence of habit if it establishes a “set pattern” or something that is done routinely or has been performed on countless occasions (MRE 406).

In  Reyes v. Missouri P. R. Co., 589 F.2d 791, 794 (5th Cir. 1979), the Court stated that evidence of habit or routine is to be weighed and considered by the trier of fact in the same manner as any other type of direct or circumstantial evidence. Conflicting testimony goes to the weight of the evidence and not to its admissibility. The weight to be given to any testimony depends upon the particular circumstances.  Proof of habit is through indirect evidence offered to prove that the conduct of a person conformed to his routine practice.

Furthermore, the court explained that habit evidence is highly persuasive as proof of conduct on a particular occasion, and its admission depends on the degree of regularity of the practice and its coincidence with the occasion. Habit evidence is considered to be highly probative and, therefore, superior to character evidence because the uniformity of one’s response to habit is far greater than the consistency with which one’s conduct conforms to character or disposition.

In Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 (11th Cir. 1985) the court explained that habit or pattern of conduct is never to be lightly established, and evidence of example, for purpose of establishing such habit, is to be carefully scrutinized before admission. Such an attitude toward the evidence of habit is based on the collateral nature of such proof, the danger that it may afford a basis for improper inferences, the likelihood that it may cause confusion or operate to unfairly prejudice the party against whom it is directed. It is only when examples offered to establish such pattern of conduct or habit are numerous enough to base an inference of systematic conduct, that examples are admissible. The key criteria are adequacy of sampling and uniformity of response or ratio of reactions to situations. Id at 1524.  See also In re Hall, 1986 U.S. App. LEXIS 19970, 8-9 (Fed. Cir. 1986) “The probative value of routine business practice to show the performance of a specific act has long been recognized.”

In the light of the above propositions, a plaintiff has a right to establish the behavior pattern of the Defendant before the jury by seeking the leave of the court to include the testimony of certain parties who are direct witnesses   to such behavior and thereby adversely affected.