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.
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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.
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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been rescinded.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,
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Here's how to take part in the
1998 IRS Tax Practitioner Program.
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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
Wisconsin Lawyer
