Practice pointers for using the new amendments to Federal Rules.

• Author: Dunne, Kevin J.
• Position: Federal Rules of Evidence and Federal Rules of Civil Procedure

The amendments to the Federal Evidence and Civil Procedure Rules, effective December 1, clarify expert testimony and reduce some burdens of discovery

WHEN THE Federal Rules of Civil Procedure or the Federal Rules of Evidence are amended, the time is right for practitioners to review the rules and amendments with a view to strategic use of the them in pretrial and trial practice.

On December 1, 2000, several amendments to Civil Procedure and the Evidence Rules went into effect, as follows:

* Evidence Rules 103, 404, 701, 702, 703, 803 and 902. Only the amendments to 103, 701,702 and 703 are discussed in this article.

* Civil Procedure Rules 4, 5, 12, 14, 26, 30, 34 and 37. Only the amendments to 26, 30 and 37 are discussed in this article.(1)

In many respects, these changes will make life easier for lawyers defending insurance companies and corporations in civil litigation. That is why lawyers representing both the International Association of Defense Counsel and Lawyers for Civil Justice testified in favor of these changes before the Rules Advisory Committees of the Judicial Conference of the United States.

How will the amendments and the practice pointers be applied effectively in the real world? Of course, the first advice is to read the precise language of the rules, the amendments and the Advisory Committee notes that accompany them. Then defense counsel should reflect on how the new changes can be used in litigation.

FEDERAL RULES OF EVIDENCE

1. Rule 103. Rulings on Evidence

   1. Rule Before Amendment

      In order to preserve error at trial for appeal, Rule 103(a) requires counsel to object to a ruling admitting evidence or make a motion to strike, setting forth the specific ground of the objection if the ground was not apparent from the context. If the ruling was one excluding evidence, the offering party is required to make an offer of proof.

      Rule 103(a) also states that error may not be predicated on a ruling that "admits or excludes evidence unless a substantial right of the party is affected."

      Rule 103(c) requires hearings outside the presence of the jury to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury during trial.

      Rule 103(d) provides that nothing in the rule precludes taking notice of plain errors affecting substantial rights, although they were not brought to the attention of the court.

   2. Rule after Amendment

      The following has been added to Rule 103(b), which deals with offers of proof:

      Once the Court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. But if under the court's ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied. 3. Practice Pointer

      This amendment is intended to eliminate any confusion as to whether a party must renew an objection or offer proof after a ruling on an in limine motion. One of the reasons for making in limine motions is to obtain evidentiary rulings to preserve the record without having to make objections in front of the jury. Nevertheless, some courts have held that a renewal of the objection at the time the evidence is to be offered at trial is always required.(2)

      As stated in the amendment, the renewal problem is now eliminated if the court makes "a definitive ruling on the record admitting or excluding evidence."

      Counsel must be sensitive to the fact that when ruling on in limine motions, many judges will not make "definitive" rulings but render tentative or provisional, or rulings contingent on the eventual introduction of a foundation for the evidence. Thus, if the original in limine ruling was not "definitive," it still must be renewed when the evidence is later offered.

      Remember that on appeal the trial court's ruling is evaluated at the time it was made, not in hindsight. Thus, if the relevant facts and circumstances change materially after the in limine ruling has been made, those facts and circumstances cannot be relied on on appeal unless they have been brought to the attention of the trial court by way of a renewed and timely objection, offer of proof or motion to strike.(3)

      Counsel still must remain vigilant during trial and seriously consider renewing objections that were overruled at pretrial or at an in limine hearing if the objection to evidence now appears irrelevant, lacking in foundation, or less trustworthy. Counsel also is obligated to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on the point.(4)

      The memory of adverse counsel is not always perfect, particularly when it comes to recalling rulings favorable to the defense. If an opponent or the court itself violates a motion in limine already granted, objection is required to preserve the error.(5)

2. Rule 701. Opinion Testimony by Lay Witnesses

   1. Rule Before Amendment

      Rule 701 permits a non-expert or lay witness to testify in the form of opinions or inferences if limited to those that are rationally based on the perception of the witness and are helpful to a clearer understanding of the witness's testimony or determination of a fact in issue. Thus, a lay person has been permitted to...