Thursday, June 18, 2015


This is an interesting question that only the lawyers will understand.  When doing research quite frequently you begin with concepts and then do the research from there.

I am working on an appellate brief wherein there is no question the judge admitted into evidence foreign documents in another language.  There was zero compliance with the rules of evidence.  So on this issue we win.  The error was properly preserved through objection more than once.  First when the documents were admitted into evidence, and second when opposing counsel used the inadmissible documents to prove up the contents of the documents through examination of the law firm's client.

In law there is a concept known as "fruit of the poisonous tree doctrine."  Every competent lawyer knows this is a doctrine used in criminal cases.  It basically means you cannot use evidence which you learn about through an illegal search and seizure.  I say basically, because I can write a book on the exceptions.

So my question is, has anyone ever heard of a comparable doctrine in civil cases? 

For the non-lawyers trying to get a civil case reversed on an evidentiary issue is nearly impossible,  It happens mostly in summary judgment cases.  But jury cases are more of a challenge because there is so much other evidence which could have been considered.

This is the research I love.  I hate that the rules of civil evidence are basically so meaningless, which is why judges routinely ignore them.  But I love a challenge and am determined to come up with a solid argument that the admission of these documents was not harmless error.  Did you non-lawyers get that - the appellate judges get to decide if inadmissible evidence improperly influenced the jury - the jury they never interviewed.  If they decide the inadmissible evidence did not influence the jury, then the improper admission of the evidence is not a basis for reversal.

It was in the early 90's when I was at a seminar and a former judge who trains judges for the state told us that they actually teach the judges to not worry about their evidentiary rulings too much because reversal is nearly impossible - wow - we actually teach our judges to not worry about the rules of evidence.

I know people hate lawyers - but imagine you know you are right about the rules of evidence and the judge ignores the law because he/she knows reversal is nearly impossible.  You learn your craft and expect the judges to follow the rules, and then in practice learn the judges ignore the rules of evidence.  How do you explain this to your client?

I told the law firm I am doing the research for there is nearly no chance of winning because of the other evidence which got in through the use of the documents after they were improperly admitted.  Their client knows.  But people hope that some judge along the way will care enough to uphold the law.

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