The Collision Between New Discovery Amendments and Expert Testimony Rules

The young litigator\u27s nightmare was always the same. He was in medieval Europe, ready to engage in a sword fight with the expert swordsman representing his arch rival. After countless hours of preparation, he felt confident that he would be able to hold his own against the swordsman. But when the swordsman drew his lengthy rapier from its sheath, the young attorney pulled only a short dagger from his scabbard. Realizing that he was doomed to defeat, he tossed his dagger into the air and ran from the scene with the laughter of the onlookers ringing in his ears. The young litigator needed no dream analyst to tell him the nightmare\u27s symbolism. He knew that the sword fight represented cross-examination and that his swordsman opponent was simply an expert witness. As hard as he practiced and studied and researched, he never felt comfortable crossexamining his opponent\u27s expert about the expert\u27s field of expertise. He might as well admit his failure now and become a tax attorney, he thought. Fear of expert witnesses can indeed be disabling. With the increase in litigation about complex business transactions, products liability, and professional malpractice, expert testimony continues to become more important. The modern litigator must learn to deal effectively with opposing experts or be faced with the embarrassment of his worst nightmares. Handling the opponent\u27s expert has become more difficult because the rules of evidence have been liberalized over the years, while the rules of discovery recently have been restricted

The Second Circuit Review--1975-76 Term: Courts-- Evidence & Procedure: Commentary: The Second Circuit and the Federal Rules of Evidence

The most significant development in federal trial procedure in recent years has been the enactment of the Federal Rules of Evidence, effective July 1, 1975. In the intervening two years since the Rules became effective, the courts of the Second Circuit have bad occasion to make several illuminating applications of and references to them. An examination of some of these decisions provides insight into the kinds of questions that are coming up not only in the Second Circuit, but around the country, and the kinds of answers that are being given. It is not the bizarre or unusual case that will tell us whether and how the rules are working, but the mine-run of cases; and this circuit provides a good sampling. The following discussion will also include a few decisions which, although not from the Second Circuit, are sufficiently next door to be of interest to the Second Circuit lawyer

Brief of Evidence Law Scholars as Amici Curiae in Support of Petitioner Paul L. Behrens’ Petition for Rehearing and Rehearing En Banc

The panel here held that the government’s expert in a criminal trial can present hearsay for its truth without satisfying the requirements of Rule 703 or the prerequisites to admissibility under any hearsay exception. Amici believe that misreads the Federal Rules of Evidence, undermines the general prohibition on hearsay, and circumvents defendants’ cross-examination rights

Comment: The Doctrine of Chances, Brides of the Bath and a Reply to Sean Sullivan

The ‘Doctrine of Chances’ is a doctrine of probability that purports to solve an apparent logical conundrum or contradiction in the law of Evidence. It is the author\u27s thesis in this article that the doctrine of chances—in any acceptable logical form including that described by Mr. Sullivan—does properly describe when this kind of ‘other wrongs’ evidence is relevant, and how probative it is, but that relevance and probative value where this kind of proof is offered does depend on propensity reasoning even under these theories even in the cases where they say it does not. He is not simply arguing that the jury will indulge propensity reasoning even though they are not supposed to and are instructed not to. Rather the author is arguing that propensity reasoning is a fundamentally necessary step in the inferential process they are told to perform. However, it is also his contention that it is not necessarily the type of propensity that the rule against propensity is meant to exclude. If properly understood, the rule and its exceptions will often admit the evidence when it is strong; will screen out only extremely prejudicial evidence or evidence of low probative value; and will do as satisfactory a job as is realistically possible in a large and diverse court system administered by probabilistically unsophisticated lawyers, judges and juries. In fact, it will produce results quite similar to what a more technically correct probabilistic approach, including Mr. Sullivan’s, would produce, particularly if a second step is applied after the relevance determination to screen out prejudicial evidence

Response Essay: Some Observations on Professor Schwartz\u27s Foundation Theory of Evidence

Professor David Schwartz\u27s A Foundation Theory of Evidence posits an intriguing new way to look at Evidence. It asserts that offered evidence must meet a tripartite requirement before it can be relevant. The tripartite requirement is that the evidence must be case-specific, assertive, and probably true. His shorthand for the tripartite requirement is that evidence must be well founded. Hence, he calls his theory the foundation theory of evidence and claims this foundation notion is so central to evidence law that it eclipses in importance even relevance itself. The tripartite requirement inheres in the very concept of evidence and relevancy, he says, and although there are only a few evidentiary areas where the Federal Rules of Evidence and their state progeny specifically require something analogous to this requirement, he finds the requirement almost universally applied in trials across the country by judges\u27 rulings (going by a variety of other names) and in decisions by parties about what evidence to offer as a practical matter. This response essay addresses two of Schwartz\u27s most intriguing and central contentions: (1) that almost all evidence must be case-specific, assertive, and probably true ; and (2) that scholars who say there is no such thing as conditional relevance—that it is an incoherent concept—are wrong: conditional relevance exists and is widespread. The two are linked in Professor Schwartz\u27s view because it is the tripartite requirement in (1) that often make evidence conditionally relevant as asserted in (2)—that is, irrelevant unless something is shown to establish that it complies with the elements of the tripartite requirement

The Second Circuit and the Federal Rules of Evidence

The most significant development in federal trial procedure in recent years has been the enactment of the Federal Rules of Evidence, effective July 1, 1975. In the intervening two years since the Rules became effective, the courts of the Second Circuit have bad occasion to make several illuminating applications of and references to them. An examination of some of these decisions provides insight into the kinds of questions that are coming up not only in the Second Circuit, but around the country, and the kinds of answers that are being given. It is not the bizarre or unusual case that will tell us whether and how the rules are working, but the mine-run of cases; and this circuit provides a good sampling. The following discussion will also include a few decisions which, although not from the Second Circuit, are sufficiently next door to be of interest to the Second Circuit lawyer

Needed: A Rewrite

Proposed far-reaching changes in the Federal Rules of Evidence are of major practical significance to every lawyer involved in the criminal justice process. The proposed changes are contained in a recent report by the American Bar Association Criminal Justice Section\u27s Rules of Criminal Procedure and Evidence Committee. The report was selected for publication in Federal Rules Decisions, 120 F.R.D. 299 (1988), because of its interest to federal practitioners and judges. More than 40 judges, lawyers, and scholars were involved in the four-year study, and experts on each particular rule acted as reporters to the committee on those areas. The report rewrites the rules on such important matters as prior convictions to impeach criminal defendants, expert testimony, character evidence, shielding rape victims, presumptions, child witnesses in violence and sex abuse cases, jurors impugning their own verdicts, competency, judicial notice, judicial comment, and admissibility of pleas, plea discussions, and related statements

What Courts Can Do in the Face of the Never-Ending Asbestos Crisis

The purpose of this article is not to argue that claimants suffering from serious asbestos-related diseases should not be compensated. To the contrary, one of the points of this article is that absent some change in the way asbestos claims are resolved, claimants who become truly sick in the future may not receive adequate compensation. Changing the current asbestos compensation system would be pro-claimant. Also, the purpose of this article is not to ascribe blame. Rather, it is to fix a problem. The judges cannot be blamed for their good intentions. Neither can the plaintiffs\u27 attorneys be blamed for zealously representing their clients-which is what they are doing here. This normally produces great social good. However, in the case of asbestos, a seriously flawed system has resulted