Evidence, professional licensing among the seminar topics @AZStateBar #azbarcon

The Sheraton Grand at Wild Horse Pass will be the site for the 2016 State Bar of Arizona Convention.

Today, another in a series of posts describing legal seminars at the upcoming State Bar Convention. (All the detail is here. And the complete Convention brochure is here.)

What follows are questions I asked seminar chairs, followed by their responses.

Today, I share the responses of chairs for programs this Friday morning, June 17.

Click on the seminar title to read more detail as published in the Convention brochure. (Note: Not all seminar chairs responded.)

Friday, June 17, 8:45 a.m. – noon

F-42: Evidence Law Update

Co-chairs: Hon. Sam Thumma, Mark Armstrong

Hon. Sam Thumma

Mark Armstrong

Who should attend this seminar?

Trial lawyers, litigators and anyone who may deal with, or need to know about, litigation.

What is the main takeaway a lawyer will gain by attending this seminar?

Better knowledge of recent significant cases addressing the admissibility of evidence and a better appreciation of how the Arizona Rules of Evidence apply to real world situations.

How is this seminar timely?

Trials and evidentiary issues are ongoing, constantly, including through motion practice and in litigation strategy, including in guiding alternative dispute resolution strategies.

What is going on now in the world of law practice that makes this topic important?

That evidentiary outcomes are impossible to predict and that the Arizona Rules of Evidence do not provide helpful guidance in addressing evidentiary issues.

What is the most common misconception about this issue?

The view that the common law of water determines water rights in Arizona. Since the landmark decision of the U.S. Supreme Court in Arizona v. California in 1963, which recognized the federal statutory allocation of Colorado River water, and continuing with the historic 1980 Arizona Groundwater Management, which established state administrative management of groundwater in Arizona, increasingly the state and federal regulators determine water rights.

F-44: Professional Licensing After North Caroling Board of Dental Examiners

Co-chairs: Cole Schlabach

Cole Schlabach

Who should attend this seminar?

Anyone whose clients work in regulated industries such as healthcare providers, accountants, and lawyers. Administrative lawyers and antitrust lawyers will have special interest.

What is the main takeaway a lawyer will gain by attending this seminar?

When do Arizona regulatory or licensing agencies overstep their bounds by engaging in anticompetitive behavior? What is next for regulated professions (including the Bar) in Arizona?

How is this seminar timely?

The seminar is timely because recent court decisions have spurred potential legislation affecting state agencies, including at least two bills this session—H.B. 2501 and H.B. 2613, involving the potential restructuring and elimination of certain licensing boards.

A record-number of legal seminars are on offer at the 2016 State Bar of Arizona Convention.

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Federal judges may jettison ancient documents exception to hearsay rule

A question for trial lawyers today: Have you ever used the ancient documents exception to the hearsay rule?

I must say, I’ve never heard someone use it, as there’s usually another way to skin the cat. And if my impression is correct that its use is rare, then maybe having the rule be eliminated may not be a bad thing.

What got me thinking about this was a story this week about an examination of that very exception by some learned folks. Some on the federal judiciary’s evidence rules advisory committee fear that the growing prevalence of electronic documents—which essentially may last forever—may mean the exception swallows the rule.

As the news story reports, “Now that documents can be stored electronically for long periods of time, a committee of federal judges that reviews the evidence rules is worried courts will face a flood of requests to admit documents under the exception.”

One law professor who teaches evidence says she thinks this change is a good idea:

Professor Liesa Richter, Univ. of Oklahoma College of Law

“Age is no guarantee of reliability,” said the University of Oklahoma College of Law’s Liesa Richter. “Now that we have this flood of electronically stored information that never goes away—it doesn’t disappear ever—[there are] just so many factual assertions out there electronically that will be available for savvy lawyers to dig up and admit. I think it is a real problem and a real concern.”

U.S. District Judge William Sessions III chairs the advisory committee on evidence rules, and he says, “A document does not become reliable just because it is old; and a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20. The committee concluded that the exception has been tolerated because it has been used so infrequently, and usually because there is no other evidence on point.”

Judges and law professors coming together to agree there’s more to reliability than age? Never thought I’d see the day.

You can read the whole story here.

So what do you think? Tempest in a teapot? Or are there good reasons to scrap the “ancient documents” rule? Who knows? There may be a magazine article or guest blog post in your future!

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Forensic Evidence Changes Slow To Be Adopted

Time flies while little happens.

That’s what occurred to me the other day, when I came across the April 2009 issue of Arizona Attorney Magazine. In that issue, I wrote an article exploring the implications of a hot-off-the-presses report from the National Academy of Sciences. The NAS report was titled “Strengthening the Forensic Science System in the United States: A Path Forward,” and it described in sometimes stark detail many of the problems with the current forensic science system.

And it’s worth recalling that forensic science is the stuff used in court, marshaled in an effort to convict people and send them to prison—or worse.

That 2009 spring was a whirlwind of activity, as the report’s launch was announced, delayed, and announced again. Until the week we went to press, we weren’t sure we could manage to have a timely story.

But what I never really doubted was that the report would have a significant effect on courts and policy. I’m not typically a sunny-side up guy, but the scholarly report was the work of a blue-ribbon panel to end all blue-ribbon panels. It was headed up by a respected jurist. And the writers included a wide variety of people (translated, not just scientists or law professors).

But more than three years later, the report has made few ripples. And this week, a blog post describes the reasoning behind at least some courts’ rejection. In the story, the D.C. Court of Appeals is the focus (note: That court is the District’s highest court; it is not the D.C. Circuit Court of Appeals).

In the case discussed, a lawyer sought to use sections of the NAS report that questioned the reliability of fingerprint analysis. The trial court denied this, and the court of appeals affirmed. The appellate court found:

“that the sections of the report at issue weren’t a ‘learned treatise,’ a term referring to a text that is considered authoritative and can be used to question experts. The appeals court found that [the] lawyer failed to present any evidence that the section on fingerprint analysis was a ‘reliable authority’ and accepted by the scientific community.”

True; that is the standard. But how long do courts wait until the scientific community accepts a report that eviscerates that very same community in significant ways. I’m not sure what the Latin is for “don’t hold your breath,” but I may look it up.

Yesterday, though, I saw this story out of Miami, in which a trial court judge ruled that fingerprint evidence should be restricted.

Note that he did not rule that such evidence should be excluded. He merely read the NAS report and decided that language like “a match” in direct testimony would be overreaching by a forensic expert.

Time will tell whether other courts begin to make granular changes such as this—and whether they will be upheld by appellate courts. But it grows more likely that change stemming from the NAS report will be more grassroots and less global; more lawyer-driven than chief justice- or legislature-driven.

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Arizona Committee to Propose Evidence Rules Changes

The law may be many things, but at its foundation, it has a lot to do with the search for truth. That’s why examining the way we reach that ideal is always a worthy endeavor.

Recently, I heard from Judge Mark Armstrong (ret.), now a staff attorney at the Arizona Supreme Court. He alerted me to the formation of a committee that is charged with determining the best ways, in court, that we may glean the truth of an assertion. That impetus is what led to the formation of the Advisory Committee on Rules of Evidence.

Here is Judge Armstrong’s note:

“I thought your readers might be interested to know that the Chief Justice recently established the Advisory Committee on Rules of Evidence. This is a standing committee that will study the Arizona Rules of Evidence and case law interpreting them, track changes to the Federal Rules of Evidence, and make recommendations to the Arizona Supreme Court for changes to the rules as appropriate. Any recommended changes would, of course, go through the normal rule-making process prescribed in Rule 28, Rules of the Supreme Court. … The committee’s first meeting is scheduled on September 28, 2012, and the committee welcomes comments from members of the Bar.”

Here is the committee’s purpose, as set out in the order:

“The Committee shall periodically conduct a review and analysis of the Arizona Rules of Evidence, review all proposals to amend the Arizona Rules of Evidence, compare the rules to the Federal Rules of Evidence, recommend revisions and additional rules as the Committee deems appropriate, entertain comments concerning the rules, and provide reports to this Court, as appropriate.”

Here is the membership of the advisory committee:

• Hon. Samuel A. Thumma, Co-Chair
• Hon. Mark W. Armstrong, Co-Chair
• Hon. David R. Cole
• Hon. Paul D. Julien
• Hon. Michael Miller
• Hon. James A. Soto
• Paul W. Ahler
• Timothy J. Eckstein
• Milton W. Hathaway, Jr.
• William G. Klain
• Shirley J. McAuliffe
• Carl A. Piccarreta
• Patricia Lee Refo

Read Administrative Order 2012-43 here.

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