Consensual Modifications of the Rules of Evidence: the Limits of Party Autonomy in an Adversary System

• Publication year: 2021

80 Nebraska L. Rev. 159. Consensual Modifications of the Rules of Evidence: The Limits of Party Autonomy in an Adversary System

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John W. Strong(fn*)

Consensual Modifications of the Rules of Evidence: The Limits of Party Autonomy in an Adversary System

The invitation to deliver a lecture sponsored by the Order of the Coif(fn1) came at a particularly opportune time for me, as it afforded the opportunity to organize my thoughts on some issues which, though long recognized(fn2) and of some importance,(fn3) have never received adequate systematic analysis either by the courts(fn4) or the commentators.(fn5) The title I have chosen for my efforts in this direction is Consensual Modifications of the Rules of Evidence: The Limits of Party Autonomy in an Adversary System,

I start from the proposition, well known to all those trained in the Anglo-American legal tradition, that we have an adversary system, which is quite different from those employed in much of the non-English speaking world.(fn6) The distinctiveness of the adversary system, as

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its name would suggest, lies in its allocation to the adversaries in the dispute the basic responsibility for discovering, marshalling, and presenting the facts of the case to the decision maker, either judge or jury, rather than assigning these tasks to a non-partisan official. Essentially two complementary justifications have been presented for this mode of proceeding. First, the adversary system is a sort of analog of laissez-faire economics,(fn7) in the sense that, as according to Adam Smith, individual pursuit of personal economic advantage will ultimately redound to the general public benefit. This places the burden of fact development and presentation upon those most interested in the result and will tend to ensure the fullest and ultimately most accurate depiction of the facts. A second justification sometimes asserted is that this allocation of responsibility is essentially fair, in the sense that those most immediately affected by judicial decisions should be given every reasonable opportunity to participate in the resolution process.(fn8)

Consistent with these rationales, parties to litigation are, for the most part, given great latitude in the manner in which they choose to assert their rights in court. This autonomy is slightly less in criminal matters,(fn9) where it is said that the state possesses a significant interest. But even here, the overriding interest in allowing self-determination will often prevail even to the extent of allowing the criminal defendant to make choices which would generally be thought to be undesirable and even foolish.(fn10)

Not surprisingly, the rules of evidence, which are themselves part and parcel of the adversary system,(fn11) generally also operate upon the

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principle of party responsibility. By that I mean it is usually the responsibility of the parties to see that the rules are applied. This responsibility is most clearly embodied in the so-called contemporaneous objection rule, which requires the party wishing to see a rule of evidence enforced to lodge an objection as soon as an impending violation of the rule is reasonably to be anticipated.(fn12) Failure to make an objection will, in the great majority of instances, mean that the rule goes unenforced at trial. In addition, such a violation of the rule will provide no ground for claiming error on appeal.(fn13) In other words, the usual result is that any rule not insisted upon by a party wishing to see it applied is waived.

And, of course, in addition to waiver, there are several other avenues by which the parties may forego enforcement of the usual rules. Foremost among these are pre-dispute contracts in which the parties specify what rules will apply in the event a dispute develops between them,(fn14) and stipulations, which will sometimes constitute an agreed modification of the rules or represent mutual acceptance of a fact which otherwise would need to be established by ordinary evidentiary means.(fn15)

Now, given the great deference to party autonomy within the adversary system, it might seem almost axiomatic that whenever all parties agree that a particular rule of evidence shall not be enforced that will be the end of the matter. In reality, however, the matter is not so simple nor the answer so obvious. For, despite the fact that the issue has been mooted for over 400 years, no clear resolution of it has ever emerged.

Several reasons can be advanced as to why a renewed consideration of the question is warranted. Wigmore, the only commentator to address the matter in any detail, recommended its further consideration, among other reasons, as a remedy for the long-standing confusion of authority on the question. Clarification will in turn serve to more fully advise the parties to litigation on exactly how far they may consensually modify the rules,(fn16) and the trial courts as to what limita-

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tions are properly to be imposed on such attempted exercises of party autonomy.(fn17) Finally, a consideration of whether party autonomy is ever properly to be constrained in this context may provide some valuable and more general cautionary lessons concerning the types of values and interests which may be threatened by the untrammeled operation of the adversary system.

Unfortunately, the confusion of precedent noted by Wigmore in 1940 still persists.(fn18) A seeming majority of courts have now retreated from the position, earlier common, that the parties are powerless to affect the rules by consensual agreement.(fn19) The prevalent view today, by contrast, is that while the parties have wide latitude in modifying the rules for their mutual purposes, they are nonetheless constrained in this by limitations of public policy.(fn20) No systematic investigation of what sorts of policies will be viewed to have this effect has come to my attention. While it is no doubt impossible, and even undesirable, to attempt to collate an exhaustive list of public policy prohibitions in this regard, it would nevertheless seem appropriate to arrive at some clearer definition of the types of interests likely to be impinged upon by unimpeded party autonomy.

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Before attempting to identify the principal policies which may place limits on the parties' ability to modify the rules of evidence, it is helpful to distinguish between cases in which the parties have understandingly concurred in an alteration of the rules, and cases in which an agreement has apparently been reached, but only because one party has been imposed upon by another or has acquiesced in a violation of the rules through ignorance or ineptitude. Imposition, ignorance, and ineptitude are old familiars of the law, and here as elsewhere the law has developed procedures to prevent their intrusion where possible, and to remedy their consequences when they appear.(fn21) For example, failure through ineptitude to satisfy the contemporaneous objection rule which I mentioned earlier can, in extreme cases, be salvaged through operation of the doctrine of plain error.(fn22) This doctrine allows an appellate court to recognize and remedy a violation of the rules of evidence even though no contemporaneous objection was made.(fn23)

All too frequently, however, cases properly calling for treatment as instances of party overreaching have mistakenly been classified as examples of attempted party modification of the rules of evidence. Because this type of case has arisen with some frequency and has caused some unfortunate confusion, I will take the time to offer a brief explanation. The insurance cases offer the best example of an agreement which veils what is properly a question of substantive law in the guise of an agreement to modify the rules of evidence. In a variety of insurance contracts, the insurer seeks to limit the scope of...