Reforming Evidence

COLUMN > Innovation in Law

BY JORDAN L. COUCH

It’s not uncommon for trial attorneys to talk about the equalizing effect of the rules of evidence and civil rules on courtroom proceedings. Whether you’re a billionaire or impoverished, the rules apply equally to all. Trial attorneys are generally right; these rules do tend to level the playing field, but primarily when the value of a case justifies the costs of attorneys on both sides. But many cases that come before our courtrooms involve pro se litigants for whom those same rules create burdens that preclude many from ever obtaining the justice they deserve, or force those who do to spend a lot of money to get it. It was Anatole France who reminded us that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.”

It’s time we examine the rules of evidence and ask if they are serving their intended purpose or if there is a better way. I recently read an article from the ABA by Leonard M. Niehoff¹1 Leonard M. Niehoff, “Let’s Break Some Rules: Immodest Proposals for Evidence Reform,” ABA Journal, April 5, 2025, available at www.americanbar.org/groups/litigation/resources/litigation-journal/2025-winter/lets-break-some-rules-immodest-proposals-evidence-reform/. about the rules of evidence. He said some things I have been thinking for a while, but I want to take his ideas even further. There are rules we should remove, rules we should adjust, and reforms we should allow when both parties consent.

RULES TO BE REMOVED

401 and 403: My trial advocacy professor told me often that if I can’t argue that any question I want to ask is relevant under ER 401, then I am a failure as an attorney. “Don’t ever object under 401,” he said, “object under 403.” Furthermore, while I can make the argument that almost any question is relevant, I’m also aware that we as attorneys allow irrelevant questions to be asked all the time. “Where are you from?” “How long have you been married?” Irrelevant “background and foundation” questions that every lawyer asks, and to which no lawyer objects. Rule 401 and 403 should be combined into one rule.

Niehoff argues that the word “may” in 403 should be replaced with “shall” making a judge’s responsibility clear. I’m inclined to agree and to further argue that if we update the standard to a requirement, we don’t need 401 at all. Irrelevant evidence would, by definition, confuse the issues and waste time.

The new ER 401 would read: “Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” What more needs to be said?

1001+: Niehoff argues that the best evidence rules should simply be done away with, and I’m inclined to agree. These rules are a relic of a pre-digital era. The rules themselves are written in such a way as to demonstrate their uselessness. Rule 1002 tells us that original copies are “required.” Rule 1003 immediately follows that up by explaining that duplicates are perfectly fine unless there is some reason that a duplicate is unfair. This is nonsense.

When most of our evidence is digital, what even is an “original” or a “duplicate”? Do I have to present the laptop that an email was typed on? These rules create confusion and barriers and give us nothing. As Niehoff notes, “The little good that they do to help ensure the reliability of evidence can almost always be achieved by applying other principles, such as authentication (ER 901) and unfair prejudice (ER 403).”

I encountered this issue in a recent trial in which screenshots of photos from a phone were being admitted into evidence. There was no debate that the photos had been tampered with (not maliciously, just oddly) but because my client agreed it was her in the photos, they were admitted over my objection. If the court had agreed with me that these photos violated ER 1003 then what would admitting the “original” have meant? ER 1001 defines original as “any counterpart intended to have the same effect by a person executing or issuing it.” Given that definition, how is a copy any different from an original? The ER 1000s made some sense in a physical era, but in today’s digital world, these rules are irrelevant and should be cut.

704: “Testimony in the form of an opinion or inferences otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” This rule is silly and seems to do nothing more than confuse people. There is a principle in statutory interpretation that the saying of something suggests that it needed to be said. So, this rule suggests that, as a general rule, testimony that embraces the ultimate issue is objectionable. But what the rule says is that such testimony is not objectionable if the testimony is admissible. We have an entire rule that says admissible evidence is not objectionable.

The most common result of this rule that I see is someone objecting to my expert testifying about their opinion about the cause of a medical condition. Such objections are easily dismissed by pointing out that the rule explicitly allows for such testimony. But I understand why the objection is sometimes made. The rule seems to suggest that there are times when such objections are warranted; it just provides no guidance as to when that might be. I can only imagine the situation is worse when pro se litigants are involved. This rule should simply be stricken.

RULES TO BE ADAPTED

801-803: I’m convinced that at least 60 percent of attorneys and 50 percent of judges don’t properly understand the hearsay rules. This is the most common rule I see attorneys arguing back and forth. Recently, I even had a judge cite a specific exception when sustaining an objection against me only to reverse his decision after I read him the rule he cited.

There is some purpose behind the complexity of the hearsay rules. As Niehoff puts it, hearsay “engages with questions that border on the metaphysical: What is an assertion? When is an assertion offered for its truth? When is it offered for another purpose? When is it sufficiently reliable that we should except it from the hearsay ban? A certain amount of impenetrability inheres in questions of this nature.” But that does not mean we should ignore the problems this rule creates.

At the heart of the hearsay rule is an understanding that admitting evidence without an opportunity for cross examination is unfair, but the rules themselves lose sight of that foundation. Why can’t a doctor testify about what another doctor said if both doctors are testifying (801(c))? Why can a witness testify about what my client said (801(d)(2)), but my client can’t testify about what that witness said (801(c)) or what my client said to that witness (801(c))? (There are limited exceptions to those assertions under 801(d)(1).)

Niehoff argues that rule 801 should include a provision that, “A statement is not hearsay if the declarant testifies and is subject to cross-examination about a prior statement.” I agree but think we should take it even further. We should adopt a norm that, much like 403, hearsay evidence should be allowed if doing so does not create a substantial risk of unfair prejudice. My clients are often baffled when I explain to them that we have to hire their doctor to testify in a case when what they will testify to is already in their chart notes, and the employer already did a discovery deposition. Why force parties to take on the burden of having expensive experts testify live in trial if those parties would prefer to just submit the records they already have? Certainly the evidence wouldn’t be as good, but access to justice also requires us to think of the economics. A party might have a valid claim for damages of $10,000, but if hiring experts to get that money will cost $12,000 and the opposing party knows it, suddenly the value of that claim becomes $0.

I don’t think we can get rid of the hearsay rules altogether, but we can change the presumption on hearsay from one of exclusions to one of inclusion. A focus on unfair prejudice cuts through the chaff to the wheat of the issue. Why are we opposed to hearsay? Because sometimes it can be unfair. So instead of all the exceptions and exceptions to the exceptions, let’s create a list of factors to be considered in determining if the admission of hearsay is fair or not and leave it at that.

Ditch the rules in bench trials: While I was in law school, I clerked for a federal judge who had what I thought at the time was a peculiar quirk. During bench trials, when a party would object on some evidentiary basis he would usually respond with something to the effect of, “I’m going to have to hear the evidence to make a ruling anyway so it will just go to the weight.” As a law student learning about the sanctity and importance of my rules, it seemed a little crazy to me. As a practicing lawyer who has done dozens and dozens of bench trials, it makes a lot of sense.

In a bench trial the judge plays the role of judge and of fact-finder. This makes evidentiary objections more than a little odd. The purpose of objecting to evidence is to ask the judge to ensure that an impressionable jury never hears it. When those roles are collapsed, it doesn’t really make sense. For that reason, in a bench trial, we should start with the assumption that there will not be any evidentiary objections. Judges can decide for themselves if a particular line of questioning is wasting time or problematic and act accordingly. On its face, this is an easy thing for lawyers to adopt but, importantly, we would need a rule change that allows in bench trials for arguments to be raised on appeal that were not raised at trial. This isn’t an easy lift, but it would be a meaningful one, especially for cases involving pro se litigants for whom a bench trial is a valuable option but still needlessly complex.

REFORMS WHEN PARTIES WANT THEM

Expand GR 40: I really only have one idea to recommend here and it’s an easy one, but I suspect also a very controversial one. In the last few years, Washington has been seeing the benefits of new “Informal Family Law Trials” under GR 40 that allow parties to proceed through trial in family law cases while waiving many of the evidence rules and civil rules. It is time to expand this to all practice areas.

The rules of evidence and civil rules, while valuable in many situations, are also an example of the way our justice system was designed by lawyers and for lawyers. Many parties before our courts are pro se and our systems need to accommodate that. The rules of evidence are so convoluted that I would bet not a single trial attorney is without a story in which they feel a well-trained judge made an obvious mistake. How can we expect pro se litigants to get it right? So why not let them opt out entirely?

This idea might sound scary, but it’s common practice for attorneys. We often make the decision to waive or not raise an objection. I once struck a deal over lunch in a complex case to end a line of questioning if opposing counsel withdrew a set of objections. As lawyers, we waive evidence rules all the time on a piecemeal basis. Why shouldn’t pro se litigants have the opportunity to waive the rules all at once?

Even in cases where only one party is pro se, I could see value to this option. When I was doing protective order work in law school, I remember struggling often with the balance between wanting to get a trial done and the reality that I could object to every question a pro se litigant asked and keep the trial going all day. Our court rules were not designed for the people they serve and it’s time we acknowledge that and let them opt out.

CONCLUSION

As a decade-long trial attorney, I’ll be the first to admit I have conflicting feelings about some of these recommendations. For the proposal to allow opting out, I don’t think I would choose for my clients to waive their rights in most cases. But in injury law, I reject about 60 percent of the people who call me wanting my help for various reasons, one of which is that there isn’t enough value in their case to justify the cost. Why shouldn’t those individuals have the right to waive these rules if they so choose in an effort to reduce costs? I know attorneys will say that we would be giving them worse service, but these are people who otherwise do not have access to our justice system. It’s not a question of getting better or worse service. It’s a question of whether they get access at all or are denied access because of the structural costs and burdens we force upon the consumers of American justice.

Being a trial lawyer means embracing some level of cognitive dissonance. On the one hand I do believe that juries are capable of discerning the truth better than any system mankind has imagined to date. On the other, as I stand before a jury, I pay close attention to the expressions on my face, I fret about the exact words the jury will hear, and I worry about what tone they will hear it in—all because I’m afraid something as silly as the wrong facial expression could distort their perception of the facts of a case. Removing and rewriting the rules of evidence makes me uncomfortable, but that doesn’t mean my feelings are right, and it definitely doesn’t mean we shouldn’t give it a try.

NOTE    

1. Leonard M. Niehoff, “Let’s Break Some Rules: Immodest Proposals for Evidence Reform,” ABA Journal, April 5, 2025, available at www.americanbar.org/groups/litigation/resources/litigation-journal/2025-winter/lets-break-some-rules-immodest-proposals-evidence-reform/.