Rules of Evidence a ‘sea change’ for trial practice

Judging from the recent buzz, it looks like Virginia lawyers are just beginning to grapple with the difference the new Virginia Rules of Evidence, effective July 1, will make at trial.

The new Rules represent a “sea change” in trial practice, according to one expert. Having  a black-and-white rule in an evidence code will put an end to “courthouse law” – longstanding local practices that may or may not conform precisely to the case law.

At a standing-room-only seminar June 28, leaders of the Fairfax Bar Association highlighted the changes and flagged the most significant new rules. Moderator David Bernhard and presenter Rodney G. Lefler joined with Fairfax County Circuit Judge Randy I. Bellows to focus on what the new rules will mean for trial lawyers.

For many lawyers, the Rules “just kind of arrived on July first,” Bernhard said.

Because the rules are intended to reflect the law of evidence as it existed in Virginia, many felt the creation of an official set of rules would make little difference at trial. Not necessarily so, said the FBA speakers.

Creating rules in place of case law almost certainly will change courtroom practice, Bernhard said. Where a judge could readily distinguish a prior ruling on its facts to avoid that court’s holding, an official published rule is not so easily disregarded, he noted.

Rules are stated generally, Bernhard observed, so their application becomes universal. Lawyers will argue a rule applies to their fact pattern, even if it’s never been applied that way before.

“There is a tension now” between the broadly stated rules and the cases that – before July 1 – were used to limit the rule, he said.

Lawyers need to arm themselves, the speakers said. While bringing the rule book to court is now standard procedure, Bernhard reminds lawyers there is a wealth of interpretation available through what he called the “source notes” – the discussion of the law of evidence in Virginia contained in the Guide to Evidence in Virginia. The Guide, developed by the evidence committee of the Boyd-Graves Conference and published by Virginia CLE, was used as the basis for the Rules ultimately approved this year by the General Assembly.

“Every Fairfax judge has a copy of the source notes,” said Bernhard.

The rules will bring a “sea change,” Bernhard said, where they threaten what might be called “courthouse law.” In some courthouses, the local practice may not precisely follow the dictates of Virginia legal precedent. Judges might be heard to say “That’s not the way we’ve done it here for 50 years.”

Having the rule published in black and white “takes a step toward bringing an end to ‘courthouse law,’” Bernhard said.
Some lawyers may be tempted to avoid mention of the rules if the judge is inclined to rule in their favor on an evidence issue. They do so at their peril, Bernhard said.

“I think lawyers are in danger from an appellate perspective if you don’t cite the rule,” he said. A lawyer would not want to mislead a judge into believing there’s a choice when there is now a rule on the issue.

At the FBA seminar, Lefler identified the rules that will make the most difference in trial practice. His top five are:

1)?The contemporaneous objection requirement of Rule 2:103. The objection must be made with “reasonable certainty,” under the rule.

2)?Character evidence allowed under Rules 2:404 – 405. While the source notes say the rules reflect current Virginia law and practice, the published rules may bring changes to the practice of some judges.

3)?Offers to compromise (Rule 2:408): Contrary to many lawyers’ expectations, the rule would allow into evidence an admission as to liability or an admission concerning an independent fact pertinent to a question in issue.

4)?Evidence of repeated abuse of the defendant by the victim – Rule 2:409. The new rule allows evidence of psychological abuse, which some judges may have prohibited.

5)?Impeachment of witnesses (combination of Rules 2:607 – 609).

Lefler said the rule on offers to compromise is likely to catch lawyers unaware. Litigators often assume, if they admit a fact during settlement negotiations, it is admitted for settlement purposes only.

Not so, says the new rule, if the fact is “pertinent to a question in issue.”

Lefler said he could envision a personal injury lawyer writing to an insurance company saying the claimant had “recovered enough to make a demand.” If the case goes to trial with claims of continuing disability, Lefler said, the client could be cross-examined with that statement from his lawyer.

“This now, I think, is going to catch people by surprise,” Lefler said. Lefler said every lawyer writing a settlement demand should first review the rule.