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Vol. 70, No. 11, November
1997
News Briefs
Changes to Federal Rules
of Civil Procedure and Evidence
By Michael B. Brennan
The U.S. Judicial Conference - the policymaking arm of the federal courts
- recommended to the Supreme Court amendments to the federal rules of civil
procedure and the federal rules of evidence. The Court approved the amendments
and sent them to Congress. They go into effect Dec. 1, 1997.
| Effective Dec. 1, the appeal route in federal
civil cases decided by a magistrate judge with consent and certain rules
of evidence will be altered. |
Amendment to Federal Rules of Civil Procedure. Effective Oct. 19,
1996, the Federal Courts Improvement Act eliminated the alternative appeal
to a district judge from a decision entered by a magistrate judge under
28 U.S.C. § 636 (c). That statute had provided two alternative appeal
paths:
1) to the circuit court of appeals; or
2) the parties could agree at the time of consent to trial before a magistrate
judge that any appeal would be to the district court. The judgment of the
district court on appeal from the magistrate judge could be reviewed only
by the court of appeals. This second appeal path has been rescinded.
Civil Rule 73 has been conformed to the statute as amended. Rules 74,
75 and 76 have been abrogated. Portions of Forms 33 and 34 were amended
to conform to the statutory and rule changes.
Effect of federal civil rule changes. Parties cannot consent to
appeal from the judgment of a magistrate judge to the district court. It
is possible that on Dec. 1, some cases in which the parties have consented
to appeal to the district court will remain pending before magistrate judges.
Title 28 U.S.C. § 2074(a) provides that changes do not apply to
pending proceedings if, in the opinion of the court in which such proceedings
are pending, applying the rule would not be feasible or would work injustice,
in which event the former rule applies.
Amendments to Federal Rules of Evidence. Subsequent remedial
measures. Evidentiary Rule 407, on subsequent remedial measures, has
been amended. The phrase "an injury or harm allegedly caused by"
was added to clarify that the rule applies only to changes made after
the occurrence that produced the damages giving rise to the cause of action.
Evidence of measures the defendant took before the "event"
causing "injury or harm" does not fall within the exclusionary
scope of Rule 407, even if they occurred after the product was manufactured
or designed.
Rule 407 also has been amended to provide that evidence of subsequent
remedial measures may not be used to prove "a defect in a product or
its design, or that a warning or instruction should have accompanied a product."
This amendment adopts the view of a majority of the circuits that have interpreted
Rule 407 to apply to products liability actions. See, e.g., Flaminio
v. Honda Motor Co. Ltd., 733 F.2d 463, 469 (7th Cir. 1984).
Even with this change, evidence of a subsequent remedial measure may
be admissible pursuant to the second sentence of Rule 407. Such evidence
not barred by Rule 407 still may be excluded under Fed. R. Evid. 403 when
the dangers of prejudice or confusion substantially outweigh the probative
value of the evidence.
Coconspirator statement not hearsay. Rule 801 (d) (2) has been
amended, addressing issues the Supreme Court raised in Bourjaily v. United
States, 483 U.S. 171 (1987). It codifies the Bourjaily holding
by stating that a court must consider a co-conspir-ator's statement in determining
"the existence of the conspiracy and the participation therein of the
declarant and the party against whom the statement is offered." According
to Bourjaily, Fed. R. Evid. 104 (a) requires these preliminary questions
be established by a preponderance of the evidence.
The amendment also provides that the declarant's statement does not alone
establish a conspiracy in which the declarant and the defendant participated.
The court also must consider the circumstances surrounding the statement,
like the speaker's identity, the context in which the statement was made,
or evidence corroborating the statement in determining each preliminary
question. This amendment accords with existing practice, as every court
of appeals that has resolved this issue requires evidence in addition to
the statement. See, e.g., United States v. Zambrana, 841 F.2d 1320,
1344-45 (7th Cir. 1988).
The amendment also extends the Bourjaily reasoning to statements
offered under Fed. R. Evid. 801(d) (2)(C) and (D). In Bourjaily the
Supreme Court chose the evidentiary approach of Fed. R. Evid. 104(a) instead
of treating foundational facts pursuant to the law of agency. Preliminary
questions about the defendant's authority (sub. C) and the agency or employment
relationship (sub. D) are to be treated the same.
Catch-all hearsay exception. The contents of other hearsay exceptions
- Fed. R. Evid. 803(24) (Availability of Declarant Immaterial) and 804(b)(5)
(Declarant Unavailable) - have been combined in new Fed. R. Evid. 807. No
change in meaning was intended.
Forfeiture of hearsay objection. Under new Fed. R. Evid. 804(b)(6)
(Hearsay Exceptions; Declarant Unavailable), a party cannot object on hearsay
grounds to the admission of a declarant's prior statement when the party's
deliberate wrongdoing was intended to make the declarant unavailable as
a witness. This rule applies in civil and criminal cases to any party, including
the government. It applies only to actions taken after the event
to prevent a witness from testifying at trial.
The rule codifies a principle recognized by every circuit court that
has addressed the issue, although the tests for finding waiver and standard
of proof have not been uniform. It adheres to the preponderance of evidence
standard.
Michael B. Brennan is a Milwaukee County assistant
district attorney.
1997 IRS Tax Practitioner Program
Forms and Publications Now Available
To participate in the IRS Tax Practitioner Program,
| Here's how to take part in the 1998 IRS Tax
Practitioner Program. |
complete and mail Form 3975, which can be found in Publication 1045, Information
Guide and Order Blanks. Form 3975 serves as the order form for Package
X and puts practitioners on the mailing list to receive the Midwest District's
tax practitioner newsletter. To remain on the IRS mailing list under the
Tax Practitioner Program, submit a new form 3975 each year.
Practitioners who have not received this year's Publication 1045 should
call the IRS at 1-800-TAX-FORM (request practitioner gate).
Practitioners who request a Package X on this year's Form 3975 will receive
one free copy (one copy per practitioner per firm/company). No other publications
automatically will be mailed free of charge.
Volume 1 of 1997 Package X will be shipped in mid-to-late November; Volume
2 will be shipped in mid-December. This schedule is subject to changes based
on late tax law changes.
The following products may be purchased through the Government Printing
Office (GPO) by submitting Form 6401 from Publication 1045.
- Publication 17, Your Federal Income Tax, $13
- Publication 334, Tax Guide for Small Business, $5
- Publication 1132, Reproducible Federal Tax Forms and Instructions,
$56
- Publication 1194, Tax Information Publications, $61
- Publication 1194B, Business Tax Information Publications, $56
These forms also can be ordered by mail using the Superintendent of Documents
Form 6401 contained in Publication 1045; by phone at (202) 512-1800; by
fax at (202) 512-2250; and through the GPO's Internet homepage.
CD-ROM and form downloads only can be ordered through the GPO's Federal
Bulletin Board at (202) 512-1387. After signing on, type: /go irs.
Figuratively Speaking
Percentage of civil lawsuits that are resolved by trial, according to
a study of 75 state trial courts: 2
Percentage of cases (reported in a sample study of 118 magazine articles)
that resulted in trial verdicts: 64
Average award granted in those cases that went to trial: $408,000
Average award of trial cases reported by the magazine media: $5.8
million
Source: Judicature, Vol. 80, No. 2, September-October 1996
Annual cost to consumers of auto insurance fraud: $15-20 billion
Estimated amount that insurance fraud adds to the average $1,100 insurance
policy of a late model, medium-sized car each year: $200
Source: Business Week, No. 3533, June 30, 1995
Number of deaths annually in the U.S. due to medical injury, according
to a Harvard University study of 100,000 patient injuries: 150,000
Approximate percentage of these deaths that are attributable to medical
negligence: 50
Source: Hamline Journal of Public Law and Policy, Vol. 18, No. 1,
Fall 1996
Percentage of the American public who believe that "the main purpose
of the juvenile court system should be to rehabilitate," according
to a Commonwealth of Virginia public opinion poll: 63
Percentage of respondents who believe the main purpose is to punish:
23
Percentage who believe the juvenile court system should both punish and
rehabilitate: 11
Estimated number of communities that have enacted juvenile curfews since
1990: 1,000
Percentage of youths who commit serious offenses: 0.2
Source: New England Journal on Criminal and Civil Confinement, Vol.
23, No. 2, Summer 1997; Criminal Justice, Vol. 12, No. 1 | 