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    Wisconsin Lawyer
    November 01, 1997

    Wisconsin Lawyer November 1997: News Briefs

    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 This second appeal path has been rescinded.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

    Wisconsin Lawyer


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