Saturday, April 13, 2013
-From Haskell Murray: "I'd like to use the online journals for some of my more time sensitive articles, but being a junior, pre-tenure professor it seems like I should focus most of my time on traditional articles."
-From Marcia Narnine: "How are online business and law reviews perceived?"
My general sense is that tenure and promotion committees don't use the shorter pieces in online law review supplements (usually in the range of 1,500-6,000 words) to meet numerical requirements for tenure and promotion decisions. That said, I think that they are given some weight in evaluating the scholarly productivity of faculty members.
I am a big advocate of both pre- and post-tenure faculty publishing in online law review supplements but because of any direct effect that such publications have on T&P decisions. Why? Here are the PowerPoints from a presentation that I gave to the faculty at my law school:
Summarizing these slides, here ares some of the main advantages I see of publishing in online law review supplements:
-Getting the first word on major legal developments;
-Attracting a wider and more varied audience than a traditional law review audience;
-Being able to lay the groundwork/test ideas for a traditional law review articles;
-A much shorter timeline from acceptance to publication (usually 1-2 months);
-Looser footnoting/Bluebook requirements;
-Often working with terrific editors at top notch law schools;
-A decent chance of being cited or involved in appellate litigation for hot button issues;
-A decent chance of being invited to conferences/symposia
-Creating something much more usable in class than a 20,000+ word traditional article.
Friday, April 12, 2013
Controlling Share: When is a Writing, Recording, or Photograph Not Closely Related to a Controlling Issue?
As I have been writing a lot about the Best Evidence Rule recently, a question has arisen. Federal Rule of Evidence 1002 provides that
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
That said, Federal Rule of Evidence 1004(d) states that
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if...the writing, recording, or photograph is not closely related to a controlling issue.
So, when is a writing, recording or photograph not closely related to a controlling issue?
Thursday, April 11, 2013
My New Essay: Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay
Following up on several of my recent posts, I just finished the draft of a short essay, Contents May Have Shifted: Disentangling the Best Evidence Rule from the Rule Against Hearsay. That essay is available for download on SSRN. Here is the abstract:
Vince brings a battery action against Dan based upon an encounter between the two men. Dan claims that he was acting in self-defense and wants to testify that Ed sent him the following text message minutes before the encounter: “Vince is coming to see you to collect on that drug debt that you owe him.” Dan could argue that he is offering the statement not to prove the truth of the matter asserted but to prove its “effect on the listener,” making it nonhearsay Specifically, Dan could claim that he is offering the statement to prove that, regardless of whether Ed was being honest and/or accurate when he made the statement, Dan had every reason to believe the statement, placing him in reasonable apprehension of Vince.
Assume, however, that Dan deletes Ed’s message after the altercation because it mentions a drug debt, which could lead to Dan being investigated for drug-related crimes. If Dan wants to testify concerning the text message to prove reasonable apprehension, there is no hearsay problem, but is there a Best Evidence problem? Most courts answer this question in the negative by conflating the rule against hearsay and the Best Evidence Rule and concluding that the Best Evidence Rule is not applicable if secondary evidence concerning a writing is not offered to prove the truth of the matter asserted. This essay contends that this conflation reflects a fundamental misunderstanding of the Best Evidence Rule and that courts must disentangle that Rule from the rule against hearsay.
Wednesday, April 10, 2013
After searching high and low, I think that I have found a court opinion that at least makes some attempt to explicitly disentangle the rule against hearsay and the Best Evidence Rule. That opinion is Kroh v. Kroh, 567 S.E.2d 760 (N.C.App. 2002), the rare opinion that deals with the intersection between the rule against hearsay, the Best Evidence Rule, and bestiality.
Tuesday, April 9, 2013
When I am teaching the rule against hearsay to students, one of the things that I always tell them is that the rule is inapplicable when the question is not whether a statement was honest and/or accurate but merely "whether the statement was made at all." Brady v. Murphy Kjos, 628 F.3d 1000 (8th Cir. 2011). When we think about this, it makes sense. Consider the case in which Fred allegedly texts Dan, "Vince is coming to see you to collect the drug debt that you owe him." Assume that a physical altercation between Vince and Dan ensues and that Vince then brings a civil battery action against Dan. If Dan wants to prove that Vince was in fact coming to see him to collect a drug debt, his testimony concerning the text message would be covered by the rule against hearsay because he would be seeking to prove the truth of the matter asserted in the text message. And the reason why Dan's testimony about the text message would be inadmissible in the absence of an exception or exclusion would be because we would be concerned about Fred's honesty and/or accuracy when he sent the text message. Maybe he was lying. Maybe he was mistaken, and Vince wasn't actually going to see Dan.
Conversely, if Dan wants to testify that Fred's text message placed him in reasonable apprehension of Vince, Dan's testimony would not implicate the rule against hearsay. Dan's claim in essence would be that regardless of whether Fred was being honest and/or accurate in sending the text message, he had every reason to believe it and thus be in reasonable apprehension of Vince. In other words, the only question for jurors would be whether they believed that the statement was made. Therefore, Dan's testimony about the text message would be no different than if Dan wanted to testify that he heard a dog bark or an alarm clock. If Dan wanted to testify that he heard a dog bark or an alarm clock, there would be no hearsay issue because a dog and an alarm clock are not humans who can be put on the witness stand and subjected to the oath and cross-examination. The question for the jury would thus simply be whether Dan in fact heard the dog or the alarm clock. The same goes in the reasonable apprehension situation. The question for the jury would simply be whether Dan in fact received the text message from Fred, not whether Fred was being honest and/or accurate.
This takes me back to the improper conflation of the rule against hearsay and the Best Evidence Rule, and I think that Federal Rule of Evidence 1008 gives us another reason to disentangle these two rules.
Monday, April 8, 2013
Truthiness: Eastern District of California Finds Best Evidence Rule Precludes Admission of Declaration Describing E-mail
Following up on last week's posts, Sutton v. DeRosia, 2012 WL 4863788 (E.D.Cal. 2012), provides a nice illustration of why the Best Evidence Rule should apply to writings that are no offered to prove the truth of the matter asserted.