Creatures of Habit

“We make our habits, then our habits make us.”

Habit is a person's regular response to a repeated specific situation.

Habit is, in some ways, the equivalent of autopilot. Once habits are established, it is very difficult to deviate from them.

That's why special consideration is given to habit by the Rules of Evidence. Habit evidence can be introduced to prove that a person “acted in conformity with their habit on a particular occasion.”

Here are the key requirements to be able to argue that someone acted “in conformity” with their habit.

• The evidence must be relevant (which means it must make a fact of consequence more or less probable than it would be without the evidence).

• There must be evidence the person’s behavior was a semi-automatic response to a repeated situation.

• Habit evidence often needs to be corroborated to demonstrate its reliability and to show that it is more than just a tendency or general disposition.

The trial judge has considerable discretion in determining whether the offered evidence qualifies as habit and whether its probative value is substantially outweighed by potential prejudice or confusion.

If these foundational requirements are met, evidence of a person's habit (or an organization's routine practice) may be admitted as a substitute for specific evidence about what happened in a particular situation. This is really important in personal injury cases where the injured person is not able to remember what happened (or if they die as a result of their injuries). And, not surprisingly, that happens all the time.

The most frequent examples we see are collisions involving pedestrians because there are usually a constellation of injuries including brain injury.

Because the injured pedestrians can’t tell us what they were doing when they were hit we rely on their testimony about, e.g., where they habitually walked and also testimony from friends and family who always saw them walking on the east side of the road on their way to the 7-11.