Thursday, June 15, 2006

Let It All In

By Tom Adler

Lawyers have a host of stated reasons for practicing law and I think I’ve heard most of them. First there is the oft repeated, “I get a lot of satisfaction out of helping people”. This usually comes from the most high-minded in our profession--- those who become presidents or board members of our ever increasing number of bar associations. Then there are those who are enamored of the intellectual challenge of the practice. These lawyers are, in status, slightly below those who like helping people and are generally looked upon as strange ducks by yet a third group of my brethren; those who enjoy the ability to makes lots of money. In truth all of those things were a consideration for me becoming and remaining a lawyer. But, if the truth were told, the main driving force---the thing that kept my juices flowing---the raison d’etre for arising in the morning was, simply stated, lunch and war stories. I suppose that’s a sad commentary, yet after all is said and done, sitting around with friends in the law, breaking bread and weaving remembrances of courtroom battles is the most fun of all. One of these skirmishes led me to adopt an entirely new way of looking at the rules of evidence and, in the process, perhaps even subject me to the ridicule of some of my colleagues and members of the bench ( the latter of which I was used to ).

The case was an unusual one. I was representing a horse trainer who was charged with neglecting a large number of horses in her keeping. My direct exam of my client revealed that she knew a great deal about horses and she testified that rather than using a veterinarian when the horses became ill, she treated them herself. After I was finished with my direct exam I settled into my chair feeling confident that she had made a good impression on the jury. The prosecutor rose to his feet and immediately bored in like a bark beetle.” Do you mean to say that you had the ability to diagnose the chronic leg problem that Blacky suffered from even though you couldn’t see it without an x-ray?” “Yes sir, I certainly could”, she replied with a self satisfied look. He immediately shot back, “Well how did you do that?” Undeterred she calmly said “I could tell from the way he was walking”. The prosecutor then turned sideways to her and smiling he faced the jury as if to signal them that he was close to killing his prey and asked slowly “And so that is the only way you knew that the horse had this rare condition?” In a voice now bordering on serene she replied “No”. .” Still facing the jury he curled his lip and said “So how else did you know?” In a voice that sounded strangely alien she replied “Because he told me”. I maintained my dead pan but my inner trial lawyer screamed “We’re going down in flames! What the hell did she say? What the hell is she talking about? Damage Control! Damage Control!”

The inevitable next question flashed into my mind at the exact same time that it came tumbling out of the prosecutor’s now victorious lips “And what exactly did he say”. Without a moments hesitation I leaped to my feet and with the most indignation I could muster blurted out in an appropriately wounded voice “Your Honor I object, that’s horsesay and counsel knows it!” There followed a memorable chambers conference in which previously unargued points of the hearsay rule were debated along with a lot of laughing. Although my client was acquitted I was forever tagged by the trial judge with the name “Mr. Ed”. What the hell. It’s the price you pay for zealous advocacy.

But the horse case started me thinking. Why do we have the hearsay rule or, for that matter, why do we have any rules of evidence (excuses to the late Justice Bernard Jefferson and, of course, Bernie Witkin)? Due to other less esoteric matters, like paying the overhead, this question was put on hold for a number of years until recently when I became involved in a lawsuit in Austria attempting to recover property stolen from my family by the Nazi’s. There was an important piece of evidence we needed and I asked my Viennese attorney if he thought we could get around the hearsay rule. He laughed and said there was no such rule nor for that matter was there any evidence code. Astounded, I asked how the court decided what evidence would be used. The answer? “Whatever the judge believes is true is used as evidence”. So I remembered the horse case and started thinking that it really made a lot of sense? Isn’t a trial all about what really happened as opposed to what can be proven according to some law commission’s rules? Maybe yes and maybe no. It all depends on who you talk to. Lawyers and judges will usually opt for the familiar structure of the rules. The public views it as a game and in large part they’re right. Maybe the answer is that there have to be rules of evidence but maybe it’s time to readjust our way of thinking about them.

Who thought up the hearsay rule with its myriad exceptions anyway? Lawyers of course. Because some lawyers thought it wasn’t fair to have somebody who isn’t around have their words repeated in court without cross examination we have the hearsay rule. Then some lawyer’s ox was gored by the rule and we started having seemingly endless exceptions to the rule. The more gored oxen the more rules. This patchwork of rules and exceptions were, supposedly, to insure that the truth came out or, stated another way, that untruths stayed out. I know, I know....witnesses could get on the stand and say anything they wanted to about what someone else said. But just think of all the cross examination that opens up that wouldn’t exist without the hearsay.

There are lots of other rules in the evidence code that are like vestigial organs in the body of law, like the rules regarding the admissibility of expert opinions. For the sake of creating collegial debate, I will go out on a limb and throw myself on the sword by proposing that the evidence code contain a total of three rules and I defy anyone to prove that they wouldn’t work.


In a non jury trial all relevant evidence shall be admitted (within reason) which the trial judge believes may be true.


In a jury trial all relevant evidence shall be admitted (within reason) which the trial judge believes is capable of being believed by the jury


Expert testimony shall be admitted if the trial judge thinks it’s necessary and the expert knows what he’s talking about

But hold on, you say! Doesn’t this give an enormous amount of discretion to the trial judge? Yes it certainly does. But I ask… what’s new?

Well lunchtime has arrived and I’m off to trade some war stories and maybe get rid of a few more codes.

©2005 Tom Adler

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