Judiciary Considers Scrapping 'Ancient Documents' 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

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!

Tuesday evening saw 2011’s version of what has become a noteworthy legal event for Arizona. That was the reception honoring the lawyers who were counsel in the cases that garnered the Top 10 Civil Verdicts moniker, as published in our June Arizona Attorney Magazine.

Lawers from this year's Top 10 Civil Verdicts. Our author Kelly MacHenry, a trial lawyer herself, is seated in the front row.

Hosted at Snell & Wilmer by partner and litigator Kelly MacHenry, the event brings together those trial lawyers, as well as those who won significant defense verdicts in cases where claimed damages were high.

I wrote about this event last year, and one thing makes the event better with every passing June.

The characteristic that marks the evening and makes it a must-attend event is not the wonderful food or the plush digs, both of which are great every time. The true value of the gathering lies in the remarks by the trial lawyers themselves. For after Kelly describes each case and hands the lawyers their certificates, they get the opportunity to share something about the case—what element was decisive, any aha moments that were milestones, what witness or piece of evidence was key to their success.

It is a pleasure and a surprise for me every year how open and expressive the honorees are in response to Kelly’s invitation to share some of their trial strategies—or moments of great good luck! People whose livelihood is ensuring a good outcome for their clients in a courtroom often relax into a discussion of the moment when it all came together—or when it looked like it was all going to hell in a handbasket.

Huge Arizona Attorney cover-photo appears dwarfed by photograph from Snell & Wilmer's art collection.

I told the attendees why the issue is one of my favorites throughout the year: I enjoy hearing what Arizona juries are doing and what trends the verdicts may reflect. But I also enjoy the successes and stories of trial lawyers. Although a huge part of their job is preparation, at the end of the day, they must act decisively even when surprises arise.

If you are comfortable only when you have your belt and suspenders firmly cinched up, litigating may not be the venue for you.

I also have to single Kelly MacHenry out for praise. She brings to a thankful magazine the complete package: She writes extremely well, she’s laser-focused on accuracy, she meets deadlines—and she’s super-smart! If any potential authors out there embody even one of these qualities, I’d be happy to work with you on an article. If you bring all four—you’ve made my month! Write to me at arizona.attorney@azbar.org.

Congratulations to all the lawyers and their amazing trial teams. And thanks to Kelly for phenomenal writing and idea generation.

Click here to see some more pictures on the Arizona Attorney Magazine Facebook page.

And here is the list of honorees (in alphabetical order):