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Abstract

There have been numerous major efforts to reform and codify American Evidence law. The efforts include the Model Code, the Uniform Rules, the California Evidence Code, and, of course, the Federal Rules of Evidence. The various reform initiatives have attempted to create “an evidence bible for busy trial judges and attorneys.” Of course, to resolve the many common-law splits of authority, the reformers faced substantive evidentiary questions: Should the opponent be permitted to impeach by cross-examining about a bad act that has not resulted in a conviction? Should there be a learned treatise hearsay exception? And should a presumption disappear as soon as the opponent presents sufficient evidence to support a finding that the presumed fact does not exist? However, even before reaching those questions, the drafters faced the fundamental question of the style or format of drafting the statute or rule: Should it be a creed consisting largely of aspirational statements, a catalog prescribing very detailed rules, or a code employing broader language to give judges discretion to do justice on the specific facts of the case?

Starting with the 1942 Model Code, a conventional wisdom emerged. One part of the received orthodoxy is that privilege rules should be written in catalog fashion. According to Wigmore’s dominant instrumental rationale for privileges, the average layperson is acutely concerned about subsequent, compelled disclosure of his or her revelations. On that assumption, when the layperson has to decide whether to consult and confide, he or she must be able to confidently predict whether the courts will later shield their revelations. According to this view, the layperson can have that confidence only if privilege statutes and rules are drafted in detailed, bright-line terms. The other part of the conventional wisdom is that statutes and rules dealing with other doctrinal areas in evidence ought to adopt a code format, stating flexible principles that accord the trial judge considerable discretion to tailor justice to the specific facts of the case.

The thrust of this article is that subsequent developments have overtaken both components of the received orthodoxy. Starting in the 1960s, empirical studies undermined the assumption that the world revolves around the courtroom to the extent Wigmore assumed. In many cases, the layperson is so troubled by the “here and now” problem that it is foolish to believe that he or she would not consult but for an absolute privilege codified in an exquisitely detailed manner. Moreover, while today’s litigators are indeed “busy,” their time is not consumed trying cases; rather, they devote most of their time to pretrial discovery, using the discovery to assess the settlement value of their case and then settling short of trial. In many jurisdictions, fewer than 1% of the cases that enter attorneys’ offices culminate in a trial. Broadly worded statutes and rules may give trial judges discretion to do justice at trial, but that phrasing can make it more difficult for attorneys to gauge the settlement value of their case. Evidence statutes and rules are tools for litigators, and they should be designed for their predominant use, that is, pretrial settlement rather than trial.

The thesis of this article is that in the future, there should be convergence—there is less need to set out privilege rules in bright line, catalog terms and more need to specify the content of the rules governing other doctrinal areas in Evidence. On the one hand, although the original rationale for prescribing detailed privilege rules is questionable, there is little need to change the wording of such statutes and rules. Today detailed privileged rules serve a different purpose, namely, facilitating pretrial case evaluation and settlement. On the other hand, again, to facilitate settlement, statutes and rules controlling other doctrinal areas should be worded more specifically. Contemporary litigators devote the vast majority of their time endeavoring to settle without trial, and broadly worded evidence statutes and rules can complicate that task.

The advent of the Federal Rules and the adoption of models based on the Federal Rules by 44 states have not mooted this issue. There have been 30 substantive amendments to the Federal Rules, and additional amendments are currently pending. While substantive evidentiary issues have higher visibility and attract far more scholarly attention, the drafting choice—a creed, a catalog, or a code—surfaces every time reformers contemplate a new amendment. In the Age of Statutes, the question is as significant and lively today as it was in the 1940s when reformers grappled with the same question while drafting the Model Code of Evidence.

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