The Illinois Trial Practice Weblog

The New Rule 502 and Waiver of Privilege: A Podcast to Keep You Informed

The weekly law-related podcast Coast to Coast has done a podcast about new Federal Rule 502, which establishes a new rule of evidence and is expected to reduce litigation costs--

Every lawyer knows the costs of discovery can escalate. Last month on September 19, 2008, President Bush signed Senate Bill 2450 into law, which establishes Federal Rule of Evidence 502 and is effective immediately. This law creates a new rule of evidence limiting certain attorney-client privilege and work product waivers. Law.com bloggers and co-hosts, J. Craig Williams and Bob Ambrogi, welcome Attorney Robert D. Owen, a partner in Fulbright & Jaworski L.L.P., to take a look at New Federal Rule of Evidence 502 and see how this new rule will affect litigation and litigation costs as well as clients.

There's more about Rule 502 in this article from the National Law Journal: "New Rule 502 to Protect Against Privilege Waiver," by Alvin F. Lindsay. Meanwhile, if you are new to the idea of getting legal information by way of podcasts, take a look at this article by Coast-to-Coast's Robert Ambrogi: "Ten Legal Podcasts to Keep You Informed."

Related post: "Podcasts for Lawyers."

The Top Ten Federal Rules of Evidence, Part 2

As promised in my last post, here's the rest of the Top-10 list of federal rules of evidence, according to lawyer Stephen Saltzburg--

• FRE 404, Character Evidence. The exceptions to this rule about character evidence should be committed to memory.
• FRE 607, Impeachment. According to the common law, you can't impeach your own witness. Rule 607 changes this.
• FRE 702, Expert Testimony. According to Rule 702, the trial judge plays an important role in deciding whether expert testimony is proper.
• FRE 801, Hearsay Definitions. Rule 801 contains a number of definitions that help to determine what is, and what isn't, hearsay.
• FRE 806 and 602, Tied. Rules 806 allows you to impeach a hearsay declarant, while Rule 602's requirement of personal knowledge can be used to challenge a hearsay declaration.

Source: Saltzburg, Stephen, "The Top Ten List: Rules Lawyers Must Know," Litigation, Fall 1995, 6-10.

The Top Ten Federal Rules of Evidence, Part 1

Want to ramp up the speed at which you make objections at federal trials? According to lawyer Stephen Saltzburg, there are ten federal rules of evidence that you should make sure you know backwards and forwards. Here are the first five--

• FRE 401, Relevant Evidence. This rules gives a judge "tremendous discretion" in deciding what evidence is relevant.
• FRE 402, Relevant v. Irrelevant Evidence. Rule 402 gives a judge additional grounds to let evidence in--it makes all relevant evidence admissible, even if no other rule says so expressly.
  
• FRE 403, Exclusion of Relevant Evidence. By means of Rule 403, a judge can exclude relevant evidence even if not excluded by some other rule. According to Saltzburg, the rule "can knock out the prejudicial, the confusing, the misleading, the cumulative, the time-consuming, even the 'unnecessary.'"
• FRE 901, Authentication or Identification. Only minimal evidence is required to prove that "the matter in question is what its proponent claims." Lawyers who understand Rule 901 know that there are multiple ways to authenticate evidence.
• FRE 611, Order of Questioning. Rule 611 gives a judge broad discretion to control the trial. Using this rule, the judge "may impose time limits on parties, permit witnesses to testify out of turn, and take virtually any step that he concludes will avoid prejudice, waste of time, and cumulative evidence."

Five additional rules will be featured in my next post. Source: Saltzburg, Stephen, "The Top Ten List: Rules Lawyers Must Know," Litigation, Fall 1995, 6-10.

Trial Tip: Overhead Photos, Courtesy of Google Earth

At the Trial Lawyer Resource Center, Ron Miller recommends using Google Earth for obtaining overhead photos of an accident scene. A commenter agrees--

The use of overhead photos to orient jurors to general geographic location of incidents and then the specific location of an accident was a helpful tip from one of our local multi-million dollar verdict plaintiff lawyers. Of course, he paid a pilot to take the photos.

In my last 3 trials, I've used Google Earth. Jurors love it and lean forward to look at the photos. They want to get oriented and know as much about the area as possible.

Another commenter brings up the issue of authentication. My advice: try a stipulation first.

Related posts:

1. "Foundational Questions for Photographs."

2. "Authenticating Exhibits Using Requests for Admissions: Two Methods."

3. "Stipulations That Will Streamline Trial."

A Few Things to Know About Juries

In the April, 2008, issue of the Illinois Bar Journal, you'll find some interesting tidbits about juries in "Lessons from Jury Research," by Sara Parikh and Terrence Lavin.

Some examples--

• Juries care most about the "strength of the evidence" and make decisions on that basis, rather than giving in to pre-conceived biases or emotional appeals.
• Juries try to fit each bit of evidence into a "cohesive story"; if they can't do it, the evidence "tends to get dismissed or serves to reframe the story."
• Juries tend to discount expert testimony unless it is firmly rooted in the factual evidence.
• While lawyers must sometimes "emphasize and even repeat important concepts," juries quickly become frustrated by needless repetition.
• Even if jurors come to a trial with a particular bias in favor of the plaintiff or defense, these feelings are rarely so entrenched that they will predict the juror's decision about a particular case.

To learn more interesting lessons about juries, read the complete article at your nearest law library or online here (ISBA members only).

Using Emails in Support of Summary Judgment or at Trial

Emails present special evidentiary problems when used in support of summary judgment or at trial. The problems presented--and the answers, too--are the topic of "Authenticating E-Mail Discovery as Evidence," by Beatrice O'Donnell And Thomas A. Lincoln. For any lawyer who deals with emails in discovery, it's well worth reading. Here are a few points:

• To authenticate an email, you must prove it is genuine. This must be done not only to make an email admissible at trial, but also in order to use an email in support of a motion for summary judgment.
• In federal court, some emails are self-authenticating under 902(7).
• If not, you'll need to use stipulations or requests for admissions to authenticate the email; failing that, you can find a witness who can authenticate the email.
• A second evidentiary hurdle is hearsay.
• If the email is an admission by a party-opponent, it's not hearsay.
• When the opposing party is a corporation, emails by lower-level employees might not be admissions. "In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority."
• Emails might fit within the business-record exception to the hearsay rule, but this might be difficult if the email is merely "chatter, statements that are made casually and not as a matter of obligation or even routine."
• In many courts, you will have to face the issue of authentication and hearsay with respect to each separate email in an email chain or thread.

There are more tips in the article. Thanks for the link to Celia Elwell, a paralegal in Oklahoma City.

Related post: "Electronic Discovery: Think About Admissibility Well in Advance of Trial."

A Roadmap for Privilege Issues in Federal Court

As I mentioned yesterday at Legal Underground, there was an interesting and useful order issued a few days ago by Judge Fallon in the federal Vioxx MDL: "Order & Reasons dated August 14, 2007" (pdf, link from the Vioxx MDL website).

The ruling concerns defendant Merck's attorney-client-privilege objections on a representative sampling of about 30,000 documents. The ruling is useful for analyzing privilege claims by large corporations, and discusses the following issues:

• General principles re attorney-client privilege, pgs. 10-13;
• Issue: whether the primary purpose of a communication is really legal advice, especially in light of ease of email within corporations, pgs. 13-18;
• Issue: the arguably enlarged scope of legal communications within corporations that are highly regulated by agencies such as the FDA, pgs. 18-23;
• Analysis of the defendant's "reverse-engineering" argument, i.e., that by producing documents not technically privileged, readers would be able to "reverse engineer" the legal advice that preceded the communications, pgs. 23-25;
• Issue: the way in which the choice of a method of organizing a corporation's working units (and the powers it gives its legal department) can affect claims of privilege, pgs. 25-28.

The opinion is also interesting for the procedure the Court used to analyze claims of privilege for the massive set of 30,000 documents, which comprised about 500,000 pages of materials. Rather than analyzing each document, the Court looked at a representative sampling. In his opinion, Judge Fallon noted that he went into "considerable detail" in the hopes that the procedures employed by his Court would serve as a guideline to resolving privilege issues in complex cases "in the dawn of the age of electronic discovery."

A post at the Pharmalot weblog captures the essence of the undertaking--

Fallon called the battle “a time consuming and expensive saga that has spiraled out of control.” The cost to review a sample of 2,000-plus documents exceeded $400,000, which is to be split by Merck and plaintiffs’ lawyers, and took three months.

Hearsay: The Business Record Exception and Opinions in Illinois

Question: In Illinois, are documents otherwise admissible as business records under Rule 236(a) barred because the documents contain opinions?

Answer: Generally, no.

The foundational requirements for business records are found in Illinois Supreme Court Rule 236(a):

Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term "business," as used in this rule, includes business, profession, occupation, and calling of every kind.

The rule itself contains no language excluding records that contain opinions. Illinois courts haven't imposed such limitations either. In a recent case, Troyan v. Reyes (3d Distr. 9/29/06), the Third District ruled that opinions contained in medical records could be published to the jury even without a sponsoring witness, since the medical records were established to be business records. The court commented:

Illinois courts have held that “Rule 236(a) does not bar the admission of business records because they contain opinions.” Birch, 139 Ill. App. 3d at 407, 487 N.E.2d at 806 (safety study that contained opinions was admissible business record); see also Amos v. Norfolk & Western Ry. Co., 191 Ill. App. 3d 637, 646, 548 N.E.2d 96, 102 (1989) (accident reports containing conclusions and opinions fall within business records exception); People ex rel. Schacht v. Main Insurance Co., 122 Ill. App. 3d 826, 833, 462 N.E.2d 670, 675 (1984) (financial documents containing opinions were proper business records).

For more about court's ruling in the Troyan case, see my previous post, "Admissibility of Medical Records as Business Records in Illinois."

For Illinois Lawyers Only: Deceased Plaintiff's Discovery Deposition Cannot Be Used as Evidence at Trial

Illinois Supreme Court Rule 212(a)(5) seems to clearly prohibit the use of a deceased plaintiff's discovery deposition as evidence at trial:

(a) *** Discover depositions taken under the provisions of this rule may be used only:

5) upon reasonable notice to all parties, as evidence at trial or hearing against a party who appeared at the deposition or was given proper notice thereof, if the court finds that the deponent is neither a controlled expert witness nor a party, the deponent’s evidence deposition has not been taken, and the deponent is unable to attend or testify because of death or infirmity, and if the court, based on its sound discretion, further finds such evidence at trial or hearing will do substantial justice between or among the parties.

Rule 212(a)(5) (emphasis added).

In Longstreet v. Cottrell, Inc., No. 5-06-0316 (5th Dist. 2007) (pdf), the plaintiff argued that 212(a)(5) should not bar the use at trial of a discovery deposition of a deceased plaintiff if the deposition was also admissible under 212(a)(3), which states that a discovery deposition can be used at trial "if otherwise admissible as an exception to the hearsay rule." According to plaintiff's theory, the discovery deposition would be "otherwise admissible" under the former-testimony exception to the hearsay rule.

Though a worthwhile argument, the Fifth District rejected it, finding itself unable to support an exception to the express prohibition of 212(a)(5)--

The policy in Illinois, as established by the Illinois Supreme Court, specifically disallows the interpretation advanced [by plaintiff]. Given the express prohibition of the use of a deceased party's discovery deposition in Rule 212(a)(5), we are not able to interpret Rule  212(a)(3) to let in portions or the entirety of such a deposition as former testimony. There is no Illinois case law or treatise language directly on point supporting [plaintiff's] theory throughout the 50-plus years that Illinois has recognized the two types of depositions.

The case is recommended for its review of the uses at trial of discovery and evidence depositions, as well as its discussion of the application of the former-testimony exception to the hearsay rule to depositions.

Electronic Discovery: Think About Admissibility Well in Advance of Trial

Electronic documents aren't automatically admissible just because they were produced to you by the other side. That's the message of a useful article in the National Law Journal: "Don't Let Your E-Evidence Get Trashed," by Jerold S. Solovy and Robert L. Byman.

Once you've assembled that stack of "hot documents," your job is only halfway done. Now it's time to start thinking about issues like authentication and hearsay.

In the quoted article, the authors mention a three-step approach: "seek a stipulation; barring that, propound a request for admission; and barring that, be prepared to establish authenticity and hearsay exceptions at trial."

In my own practice, I follow these steps but sometimes in a different order, sending the request for admission first. It's often once of the best ways to prod your busy opponent to start thinking about stipulations well in advance of trial. 

I suggested a form for authenticating electronic documents in "Authenticating Exhibits Using Requests for Admissions: Two Methods." Look at the second method.

Related post: "Electronic Discovery: Don't Get So Caught Up in the Form that You Neglect the Substance."

Related sections from my book Deposition Checklists and Strategies (for readers who own it):    

1. §6:73 Practice Tip: Discovery of E-Mails

2. §6:76 Practice Tip: Admissibility of Employee E-Mails