Big IdeasAuthor(s): James W. McElhaneySource: Litigation, Vol. 16, No. 3, STRATEGY (Spring 1990), pp. 45-46, 60-62Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759402 .

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Trial Notebook

Big Ideas

We were in the Brief Bag on Friday evening, and Flash Magruder was

blaming Judge Wallop's evidence rul?

ings for the verdict he had just gotten in an age discrimination case.

"The problem," said Flash, "is that

Wallop just doesn't understand the rules of evidence."

That's when Tucker Phillips joined in. "It's not just the judges," Tucker said. "Nobody understands evidence. And the reason is simple. There's noth?

ing to understand. It has no real themes. It's just a bag filled with a bunch of

picky little rules. Evidence is impos? sible for the average judge because it has no big ideas you can grab onto."

Angus looked at Tucker and snorted. "Oh, come on, Angus," said Tucker.

"You're not going to defend the law of evidence, are you? The needless com?

plexity of evidence is one of the rea? sons for the mess the trial system is in

today?why we have to resort to things like alternative dispute resolution just to dispose of ordinary cases."

Angus smiled. "There is no question

by James W. McElhaney Senior Editor

evidence can pose some difficult prob? lems," he said. "Some of the hearsay puzzles, for example, can take genuine thought to untangle. But evidence does not suffer from any lack of big ideas? and if you understand what they are, it makes the whole subject a lot easier."

"Yeah?" said Tucker. "I've got ten

dollars that says you can't name three

big ideas in the law of evidence?and I'll give you hearsay."

"You're on," said Angus. "I think I can give you six or seven big ideas?

depending on how you count them. And I don't need hearsay. It's impor? tant, but it's just part of one of the big ideas."

Beth Golden covered her mouth so Tucker could not see her grin. Tucker had no idea how far over his head he had gone. I figured it was time to get my legal pad and start writing. Here are

my notes.

The starting point is that none of the themes?the big ideas?are absolute.

None always applies. The big ideas of the law of evidence weave in and out, sometimes surfacing in unexpected places. They seem to come and go pre? cisely because they are in competition with one another.

1. We Do Not Want the Whole Truth

The law of evidence would be little more than a handful of mechanical

principles for structuring the trial if it were not for the first big idea.

Everyone knows that one of the jobs of the judge in a jury trial is to rule on

objections. But the point is not just to exclude unreliable documents or un?

trustworthy testimony. We give up per? fectly reliable evidence because there are some goals that are more important than letting the judge or the jury have all the facts.

Privileges are a perfect example. We want to foster the attorney-client rela?

tionship, so we say that confidences between lawyer and client are privi

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leged. If a client admits to her lawyer that she killed her husband, the lawyer cannot testify against her client, as use? ful as the information might be.

But the rule is not absolute. Turn the client's statement from the admission of what she has done into a statement of what she plans to do?commit a crime in the future?and the privilege disappears.

Notice that the real reason for privi? leges lies in the secondhand benefits it

produces. This client's confidences have already been shared. We do not have to honor those confidences to en?

courage them to be given. Instead, we make this client's confidences privi? leged to encourage the next client to feel free to speak to his lawyer.

And there are more privileges than

you might think. Besides the ones that are called privileges (like the doctor

patient privilege and the husband-wife

privilege), there are some rules that do not seem like privileges until you hold them close enough to see how they

work.

Trade secrets and subsequent reme? dial measures are good examples. The

public can benefit from trade secrets, so

they are protected up to the point where

keeping them out of evidence would work a fraud or do some other injustice.

And we want to encourage people to fix dangerous situations and correct defective products, so we make their

repairs privileged unless they are rele? vant for some purpose besides showing that the situation was dangerous. Does the rule work? Well, certainly,

you say; it keeps evidence from the

jury. That's working, isn't it? Go further than that. There is a nag?

ging suspicion that we do not need to make evidence of subsequent repairs inadmissible to encourage mass pro? ducers to make their products better when they discover defects in design or manufacture. They may make the

changes anyway, whether or not the evidence is admissible. That is the real reason behind cases that admit subse?

quent remedial measures in products liability suits. If the big idea does not

apply in a particular situation (and whether it does is the subject of real debate in the products liability area), there is no need to follow it. The Rape Shield Doctrine?Rule

412 of the Federal Rules of Evidence? is a little different?although we are still excluding evidence in an effort to influence conduct. One of the effects of

cross-examining a rape victim about

her past sexual experiences was to keep a lot of other victims from reporting their rapes or testifying about them. So

by seriously restricting that kind of cross-examination, we hope to encour?

age more victims to come forward.

Illegal searches and seizures are an? other example. Nothing about an illegal search and seizure makes the evidence the police get unreliable. But an impor? tant part of human dignity lies in being free from unreasonable governmental intrusions in our lives. So we have said

(at least for the time) that evidence from illegal searches and seizures is not admissible?not because it is tainted, but because we want to discourage ille?

gal searches and seizures.

The point is that all of the examples prove that we think some things are more important than knowing the whole truth.

2. We Judge the Acts?Not the Person

The late Irving Younger used to say, "One of the basic principles of the

Anglo-American system of jurispru? dence is that you can only convict a defendant with evidence that shows he committed the crime charged."

"Well certainly," you say. "But that's not news."

Maybe it is. We use character evidence every day

to make all kinds of decisions in our

personal lives. We buy products, hire

employees, sever relationships on the basis of character evidence. What kind of people are they? Can you trust him to keep his word? What sort of work does he do?

Our folk wisdom says we are right to

pay attention to character. "Fool me once, shame on you. Fool me twice,

shame on me." "Cats don't change their

stripes." "There's no fool like an old fool." And our jails are filled with the dismal proof that wrongdoers tend to do it again.

So it obviously took real effort to stake out the position that evidence of a defendant's other crimes is not admis? sible to prove he committed this one.

We have even reduced it to a few buzzwords that are in the title to Fed? eral Evidence Rule 404: Character is not admissible to prove conduct.

If we naturally tend to accept charac? ter evidence, why should we have a rule that excludes it?

There are two reasons, closely re?

lated to each other. First, the judgment

of guilt is an awful thing. It is too easy to give evidence of character (or other

crimes) too much weight. Second, there is the danger that a judge or jury might use character evidence the wrong way, and convict a defendant, not because he is guilty, but because he is a bad man.

Is it an absolute rule? No.

The defendant in a criminal case is

permitted to use character as a de? fense?to show his good reputation in an effort to prove he is a good man so his lawyer can argue that good men do not commit bad acts. And once the de? fendant opens the door to his good character, evidence of his bad reputa? tion must be let in as well.

Why not let the defendant in a civil case use character evidence, too?

Good question. Some jurisdictions do admit character to prove who was the first aggressor in assault and battery cases. But the ordinary rule is that char? acter is a defense only in criminal cases. And that may suggest another

big idea?we try to give the defendant in a criminal case some advantages (such as the burden of proof and the ad

missibility of some kinds of evidence) to help make up for the notion many people have that any defendant is

probably guilty. 3. No Three-Ring Circuses Like war, litigation has a tendency to

spread to all fronts. It is all too easy to

fight each point to the bitter end, whether or not it is really productive.

So we have a number of rules that seem quite technical, but whose real

purpose is to keep attention focused on the center ring.

First, we limit character evidence to

reputation or opinion. When the defen? dant in a burglary case uses character as a defense, his whole life does not be? come admissible in evidence?just a

summary of it. The common law rule was simple. The defendant's character witnesses could only testify that they were familiar with the defendant's

reputation in the community in which he lived and worked, and that the repu? tation was inconsistent with the crime

charged. Of course, those character witnesses

were really testifying to their personal opinions as much as to their knowledge of the defendant's reputation. But be? cause of the maddening literalism of

lawyers and judges, witnesses were not

permitted to say that these were their

(please turn to page 60)

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courts. Moreover, as noted, the hearing conducted by the Special House Select Committee (particularly the examina? tion of Evan Mecham) provided a

lengthy pretrial transcript that was used in the Senate trial in the same way depositions would have been used in a court of law. It was much as if grand jury proceedings could be used as dis? covery and impeachment material in a

subsequent trial. ? Finally, after the parties had rested

on the obstruction of justice charge, the Senate called Mecham's lawyer, Fred Craft, to testify. Craft was called be? cause he was a witness to an important conversation relating to the obstruction

charge. When eight senators finished

questioning Craft, the Board of Manag? ers (the prosecutors) cross-examined him over Mecham's objection.

The Importance of Credibility Despite these unusual, even bizarre,

details, the impeachment trial of Evan Mecham was like any other trial in one fundamental respect: In the end, there was only one issue that mattered?the

credibility of the accused. Using Mecham's own statements, many of

which were made in the proceedings before the House of Representatives, the Board of Managers relentlessly demonstrated a huge difference be? tween objective truth and what

Mecham swore was the truth. Thus: ? When Mecham swore in the House

of Representatives that he had never been accused of lying, the Board of

Managers demonstrated on cross-ex?

amination that many parties had filed claims charging Mecham with fraud and misrepresentation. Mecham's

feeble response was that "nobody had ever found him guilty of lying or cheat?

ing or defrauding anybody." Even that was inaccurate.

? Mecham swore in the House of

Representatives that "there was no ne?

cessity" for the $80,000 loan to Mecham Pontiac, but the Board of

Managers demonstrated on cross-ex?

amination (and through the testimony of a CPA) that the dealership had seri? ous financial troubles.

? Mecham denied under oath in the House of Representatives that he or his chief of staff directed anyone not to record the deed of trust securing the $80,000 loan from the protocol fund; but the Board of Managers on cross examination extracted Mecham's

admission that he "possibly" did in

struct his chief of staff not to record the deed of trust. And those contradictions were not

the end of it. Just before closing argu? ments, a list of false statements cover?

ing 18 single-spaced, double-columned

pages was submitted to the senators. In the end, the single most telling

example of Mecham's lack of candor involved his repeated charge that De? partment of Public Safety Lt. Beau Johnson (who differed with Mecham about an aspect of the threat to Donna Carlson) was responsible for stealing a

report critical of the department pre? pared by a Mecham loyalist. On the afternoon of March 17 and the morning of March 18, Mecham made the charge at least seven times.

The problem was, Mecham had

nothing to back up his attacks on Johnson. He first refused to answer di? rect questions about his evidence for the accusations. Then, following a senator's request that he be directed to answer the questions, Mecham was able to ponder his refusal over the lunch break on March 18. He returned and admitted: "I did not have the proof then and I do not have the proof now."

After that reluctant concession, Mecham was finished, even though the trial had another two weeks to run. With Mecham's own words still

ringing in the cavernous Senate chamber, the Board of Managers asked the senators rhetorically at the close of the case:

How much proof is required to demonstrate that [Governor Mecham] has puffed, exaggerat? ed, misremembered, dissembled and out and out lied? If veracity is an issue, [Governor Mecham's] lack of veracity has been demon? strated not just by clear and con?

vincing evidence but beyond a reasonable doubt.

In the end, though the record reflects that the Senate convicted Mecham for obstruction of justice and misuse of funds, in a very real sense Mecham had convicted himself?in two ways. First, through tactical mistakes born of exces? sive aggressiveness and a misunder?

standing of the process and its stan? dards. And second?once impeachment got going?by a disregard for the truth.

When all the dust had settled, Evan Mecham had fallen prey to two of the oldest traps in the litigation business: lack of judgment and lack of candor. L0

Trial

Notebook

(continued from page 46)

personal opinions?which really did not matter, since the point of the rule was to keep it short. So when Rule 405(a) of the Federal Rules of Evi? dence made the radical change to per? mit character witnesses to testify to their personal opinions, it was not re?

ally changing very much. Second, character witnesses can be

cross-examined with specific instances of conduct. Games's character wit?

nesses are limited to Gaines's reputa? tion or their personal opinion of Gaines when they testify on direct examina? tion. But on cross-examination they can be asked about specific things that Gaines has done.

Why? Isn't that inconsistent with

keeping the focus on the center ring? Sorry, it is not. Just as reputation or opinion is an ef?

ficient way of proving character, spe? cific instances of conduct are an effi? cient way of attacking character. And notice. While you can cross-examine

Gaines's character witnesses with

questions about specific instances of conduct, you are "bound by the witness's answer."

Another point about character evi? dence. The "reputation or opinion on

direct?specific instances on cross"

rule applies whether the witness is one who is supporting or attacking the defendant's character.

The rule against the three-ring circus

explains timing rules that some lawyers find difficult. It is improper to attack the credibility of a witness before he testifies, and it is improper to support the credibility of someone who has tes? tified before his credibility is attacked. The idea is simple: Why make an issue out of something that might never

happen? Then comes the rule that you cannot

impeach a witness on a collateral mat? ter. Say a witness?Jason Wood?tes?

tifies about a business meeting, re?

counting what everybody said in great detail.

To challenge the accuracy of Wood's recollection, the cross-examiner asks

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him what he had for breakfast that day. (This is undoubtedly a foolish cross-ex?

amination, but never mind.) Confi?

dently, Wood says he had cold cereal and a piece of melon.

Breakfast is collateral. Although the cross-examiner would be permitted to ask Wood what he ate, he would be barred from proving that Wood was

wrong by calling another witness or

offering a restaurant check to show Wood really had fried eggs and grits. What is all right for cross-examination

may not be worth the time for separate proof.

The same idea is at work in Rule

608(b) of the Federal Rules of Evi? dence. You can (at the discretion of the

court) ask a witness about prior bad acts that rationally bear on his credibil?

ity. But if he denies committing the acts, you are "bound by the witness's answer." We do not have the time to set

up another ring in the circus to deter? mine the witness's guilt of other crimes or wrongs.

But wait a minute, you say. Isn't that inconsistent with what happens in Rule 609? Do that cross-examination again, only this time there is a conviction for the bad act. The witness denies he was convicted.

Now the cross-examiner is not bound

by the witness's answer. Now the cross-examiner can introduce evidence

of the witness's conviction. Isn't that a violation of the three-ring

circus rule? No. The conviction is easily proved with

a certified copy of a court record?far different from setting up a trial within a trial just to attack a witness's credibility.

4. Call the Real Witness If we want reliable evidence, we

want firsthand information. Obviously that is one of the reasons for the rule

against hearsay. When is an out-of-court statement

hearsay? When it is offered for its truth. And, when it is offered for its truth, that is when you need to cross-examine the real witness?the declarant.

The real witness rule is not just one of the reasons for the hearsay rule, it also plays a part in the exceptions to the

hearsay rule.

Past recollection recorded is not admitted unless the witness can no

longer remember fully what he wrote down at the time.

So what? No need for a hearsay exception if

the real witness is on the stand and can

remember everything. And so it is with former testimony,

declarations against interest, and state?

ments of personal or family history. They are not admissible unless the real witness is unavailable to testify.

But not always. There are lots of

exceptions to the hearsay rule that are admissible whether or not the real wit? ness is available.

Why? The reasons vary. Sometimes it is

history, sometimes convenience, some?

times common sense. Remember, none

of the big ideas of evidence applies all the time. And there is more to the real witness

rule than just hearsay. Rule 602 of the Federal Rules of Evidence insists that the witness have personal knowledge of the matter to which he testifies. And

when the real witness is a document, the Best Evidence rule says produce the

original or account for its whereabouts before introducing secondary evidence to prove its contents.

5. The Sporting Theory of Trial A number of evidence rules are re?

ally notions of give-and-take that gov? ern the adversarial process.

Direct examination creates the right of cross-examination. Cross-examina?

tion usually gives rise to redirect. When a witness takes the stand, his

credibility becomes an issue. When a defendant uses his character

as a defense, it opens the door to cross examination about specific instances of conduct as well as to calling witnesses who will testify to his bad character.

If the opponent is unfairly selective in offering part of a document, Rule 106 of the Federal Rules says that

opens the door to any other part of that

document or any other writing or re? corded statement that ought to be con? sidered contemporaneously with it. When a document is used to refresh

the recollection of a witness, the other side is entitled to see the document and cross-examine the witness on it. Rule 612 of the Federal Rules of Evidence.

The fairness notion applies to the witness, too. When you want to intro?

duce evidence of a prior inconsistent statement to attack the credibility of a

witness, you have to give the witness an opportunity to explain or deny the statement, unless the court waives the

requirement. Rule 613 of the Federal Rules of Evidence.

When the other side offers hearsay evidence, that opens the door to attack the credibility of the hearsay declarant, just as if he were in court. Rule 806 of the Federal Rules of Evidence. While the sporting theory of trial

guarantees the right of give-and-take, it does not demand perfection?just basic fairness.

6. Watch Out for the Lawyers We are more than a little suspicious

of how lawyers prepare for trial and what they do once they get there.

Leading on direct examination is

improper because we do not want the

lawyers telling the witnesses what to

say. If a business record is made with a

view toward litigation, it is inadmis? sible. Palmer v. Hoffman, 318 U.S. 109

(1943). If a lay witness becomes familiar

with handwriting in preparation for liti?

gation, his opinion is inadmissible. Rule 901(b)(2) of the Federal Rules of Evidence. But apparently there is no similar rule for voice identification?

probably because voice identification

rarely takes place in court and the wit? ness almost never has a chance to "pre?

pare" for it. See Rule 901(b)(5) of the Federal Rules of Evidence.

Reenactments and experiments con?

ducted with a view toward litigation are viewed with real suspicion. The condi? tions have to be the same "in every

material respect." As a practical matter,

courts are concerned that partisan argu? ments may be dressed up in scientific

garb. Past recollection recorded may be

read to the jury but not received as an exhibit under Federal Rule 803(5)? unless offered by the opponent. We do not want witnesses to be instructed to

"forget" so their written testimony will

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have greater weight than other wit? nesses' oral testimony.

7. If the Judge Wants to Hear It, It Is Admissible

No matter what the rules say, if the

judge is really interested in a particular bit of evidence, it is admissible.

That is one of the reasons why we have the doctrine of harmless error, so the judge can satisfy his curiosity. Be? sides, if the trial court was really inter? ested, the appellate court is likely to be

interested, too.

When Angus finished, I looked around to see Tucker Phillips's expres? sion, but he was not there. There was a ten dollar bill where he had been sitting.

"That," said Beth Golden, "is circum? stantial evidence."

"Nope," said Angus, picking up the ten dollar bill. "It's an admission." 10

SJT

Strategies (continued from page 32)

ultimately presented at trial by the pilot was quite different from that stated in his experts' depositions and affidavits.

Credibility issues aside, an SJT verdict

likely would not have been predictive, because the record liability theory of the case (the basis for the SJT) was differ? ent from the ultimate trial theory.

One legal point could moot all the tactical niceties involved in assessing whether you want an SJT. What if you do not have a choice? What if the judge compels an SJT? Can a court do that?

The few courts that have considered the issue are split. In Strandell v. Jackson County, 838 F.2d 884 (7th Cir. 1988), the Seventh Circuit vacated a

contempt judgment entered against a

lawyer who refused to participate in an SJT. The appeals court ruled that a

judge cannot force litigants to partici? pate in SJTs. It held that Fed. R. Civ. Proc. 16(c), authorizing litigants to consider alternative dispute resolution

possibilities, did not authorize manda?

tory SJTs. Strandell has been cited with

approval by the Seventh Circuit in Landau <? Cleary, Ltd. v. Hribar

Trucking, Inc., 867 F.2d 996, 1002 (7th Cir. 1989).

Some federal district courts dis?

agree; they have ruled that they are em?

powered to force participation in an SJT. Arabian American Oil Co. v.

Scarfone, 119 F.R.D. 448 (M.D. Fla.

1988), refused to follow Strandell, cit?

ing the need to ease court congestion. McKay v. Ashland Oil, Inc., 120 F.R.D. 43 (E.D. Ky. 1988), and Fed? eral Reserve Bank v. Carey-Canada,

Inc., 123 F.R.D. 603 (D. Minn. 1988), also rejected Strandell, relying in part on local rules that these courts con? strued as authorizing judges to order SJTs. See also Home Owners Funding Corp. of America v. Century Bank 695 F. Supp. 1343, 1347 n.3 (D. Mass.

1988) (dictum). Those cases, however, do not re?

solve whether such local rules are valid or constitute an unauthorized erosion of the Federal Civil Rules. The Sev? enth Circuit's reasoning in Strandell would suggest that such local rules are not valid. In fact Strandell points out that federal legislation that would have

explicitly authorized district courts to order summary judgment trials was

proposed, but did not pass. 838 F.2d at

888, n.5. Recently, in Hume v. M & C

Management, 1990 U.S. Dist. Lexis 1602 (N.D. Ohio, February 15, 1990), the court denied the parties' motion to conduct a summary jury trial, holding that SJTs are not authorized by the Federal Rules. Then, the court went further. It ruled that there is no legal authority for using persons as sum?

mary jurors. The court criticized the SJT concept for many of the reasons discussed in this article and also because it thought using summary ju? rors could compromise the integrity of the jury system by "fooling" jurors into

thinking that their verdict will be

binding. Courts that force SJT participation

assume that an SJT is inevitably a cost effective settlement tool. That is incor? rect. In fact, an SJT can easily double the cost of pretrial preparation without

resulting in settlement. The heavy pre trial cost it places on the parties distin?

guishes it from any other alternative

dispute resolution tool. Substantial

pretrial cost investment in an unsuc? cessful SJT can, in fact, actually ham?

per settlement later. In addition, where an SJT is forced, the concerns about one side using it to get a free preview of the opposing case become acute.

There is another problem with forced SJTs. Judges are not necessarily

well positioned to decide what cases are appropriate for the device. Heavy caseloads often prevent them from re?

ally understanding the case and the par? ties. The parties' lawyers can better assess whether their clients will find an SJT verdict predictive. SJTs should never be forced.

A final point, keeping in mind that an SJT is supposed to be a settlement de? vice. I firmly believe that there are cases that should not be settled, even for costs of defense. Examples are cases where questions of liability? usually uncertain?are obvious. Too

many contingent fee cases are taken before a lawyer has any idea of their

strengths or weaknesses. Those weak?

nesses are often recognized long after substantial expert fees and discovery have accrued. Such cases, which should never have been brought, can? not be settled, because both sides have invested almost as much?or more?

than the case is worth. Cases involving genuine matters of principle or per? sonal reputation are also often not set? tlement candidates.

Forcing settlement?by an SJT or

any other device?is not the answer. Our justice system would be better served by discouraging lawsuits

brought on the theory that a defendant will always settle for at least the costs of defense. The current judicial atti? tude?that all cases should settle?

disappoints litigants in these clear-cut cases and in fact encourages more

litigation. 10

Opening Statement

(continued from page 2)

you to test yourself before you are tested by others. Those of us chosen to be his sparring partners learned our les? son. I recall, just a few years ago, stop? ping to have lunch in Ed's office. I had been away from the firm for several

years. Ed had been representing Victor Posner, and there were whispers that the illness that finally brought him down had slowed him, or eroded his

powers. The whisperers were wrong. He sat

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