Advisory Committee on Evidence Rules
Administrative Office of the United States Courts
Re: Request for Comments on Proposed Amendments to Federal Rules and Forms (August 15, 2022)
Dear Members of the Advisory Committee on Evidence Rules,
The National Employment Lawyers Association (NELA) respectfully submits the following comments in response to the Proposed Amendments to Federal Rules and Forms. NELA opposes the proposed FRE 611(d). NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of more than 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace. NELA members litigate in every state and every circuit in the United States and collectively have substantial trial experience. This body of experience forms the basis for these comments as well as other comments we have made on proposed changes to the Federal Rules of Evidence.
The following comment is the submission of the National Employment Lawyers Association, in response to proposed language adding to FRE 611 a new section, Sec. (d) (see p. 286). As we stated above, NELA opposes the proposed FRE 611(d).
The proposed FRE 611(d) is an entirely new rule. When creating a completely new rule (as opposed to revising an existing rule) the threshold question should be whether a new rule is necessary. Is the foreseeable harm that could arise from the changed rule more problematic than the problems the change was intended to fix? Careful analysis and caution are warranted.
More than 2,400 years ago, Hippocrates cautioned, “physician . . . do no harm.”1 The same sentiment is expressed more colloquially in our time: “if it ain’t broke, don’t fix it.” NELA submits that there is no need for this new rule, because in the collective experience of our members, there is no widespread disruption or problem with the use of illustrative aids in trial courts that requires fixing. To the contrary, federal district judges can and do exercise effective and efficient control of trials under the existing rules. In fact, NELA envisions many problems that are likely to arise as a result of the proposed new rule. Further, we are unaware of an existing problem that needed fixing. Introducing this new, broadly worded rule is likely to slow trials, and to mire them in frequent bench conferences and petty disputes about advance notice and the utility to the jury of counsels’ efforts to illustrate their points.
The materials in support of the proposed Section 611(d) cite only a single precursor, Me. R. Evid. 616. If the use (and the implied misuse) of illustrative aids was a pressing concern, one would expect to see widespread efforts to address the problem, with experimentation among many different states, as well as local rules and standing orders among the various federal district courts. That kind of effort and outcry to address a (supposed) widespread problem simply does not exist. The committee has cited no other examples, and we are aware of none. The paucity of state and local courts’ attempts to address the supposed problem is a powerful indication that this is neither a widespread, nor an urgent problem. Further supporting our view, very few people signed up to testify on this subject, and most of the testimony was in opposition to the proposal.
The absence of widespread efforts in support of the change proposed by this rule is in strong contrast to other proposals in recent memory, which have motivated large numbers of attorneys to appear before the Committee and engendered spirited debate. Finally, we note that flip charts, whiteboards and blowups (or their antecedents) have been used in trials for centuries without, to our knowledge, causing much difficulty in trials. NELA’s members routinely participate in trials in which the trial judge competently manages the trial, and addresses issues related to the use of PowerPoints and other related tools, without the need for a new rule.
The wording of R. 611(d) is so broad that it invites an entirely new set of problems and hurdles by limiting many tools trial counsel routinely uses to explain and highlight for the jury the facts elicited through examination. The Committee has not provided an indication that there are substantial problems or concerns that gave rise to the proposed rule. On the other hand, we can easily anticipate the arguments, disruptions and delays that this rule, if made final, is likely to cause.
In contrast to the vaguely defined benefits, the prospective burdens are clear. The rule would create a presumption against counsel using various aids while examining a witness or making an argument. Such a presumption will lead to disputes that will most often arise during examination or mid-argument, frequently with a witness on the stand and the jury in the box, resulting in more frequent bench conferences. The result will be that trials will be substantially bogged down without any discernible benefit.
NELA agrees with the submissions of the AAJ (and others) as to the problems with the language of the proposed rule, see written testimony of W. Mark Lanier, William A. Rossbach, Brian Sanford, and Tiega-Noel Varlack, submitted to the Advisory Committee on Evidence Rules for the Public Hearing held on January 27. While NELA shares those concerns, we agree in particular with the submission of Ryan Babcock, in that we see the proposed change as unnecessary at best.
Some of the specific problems that are apparent in the proposed rule are:
- Lack of definition of “illustrative aids.” The absence of a definition of the subject of the proposed rule is a glaring problem that invites confusion and misuse. The proposed Committee Notes describe the confusion over terminology, and the occasional mislabeling of demonstrative exhibits as illustrative aids, yet no definition is provided. Absent such a description, a party may argue that the new rule applies to blowups of exhibits, notes on a whiteboard/ELMO, annotations such as underlines, highlights, callouts, circles or arrows on a document, timelines, and other frequently used trial aids.
- Presumption against use. The proposed R. 611(d), in sharp contrast to the Maine rule, is worded so that the default is exclusion rather than permission. The choice to flip the presumption in this way will invite more objections and increase the likelihood of winning an objection. Further, there appears to be no penalty for raising an objection during examination or a party’s argument, interrupting the flow and presentation of evidence and generally bogging down the trial. Because none of these aids are “admitted” into evidence in the sense of going to the jury room, this presumption against use of trial aids is misplaced. NELA members routinely use timelines and PowerPoint presentations in their trials and have found that trial judges are fully able to control the trial and resolve any evidentiary issues under the existing rules.
- Advance notice. By requiring advance notice, R. 611(d) invites opposing parties to lodge objections that would require frequent bench conferences while witnesses are on the stand. Such interruptions aggravate the jury and do not lead to better trials. We submit that most judges would not want to referee a dispute about counsel making notes on a whiteboard or ELMO during examination, or underlining portions of an exhibit on screen, and then have to decide such collateral issues as whether that counsel should have given advance notice of those minor trial aids under R. 611(d), or whether counsel needed to provide advance notice of her examination outline.
We support the comments and objections of the AAJ, Mark Lanier, Ryan Babcock, William Rossbach, Brian Sanford and Tiega-Noel Varlack on these points. Our members have tried many cases, and in our collective experience, the existing rules give trial judges all the tools they need to police any issues which this new rule purports to address.
Thank you for your consideration.
Laura M. Flegel
National Employment Lawyers Association
Director of Legislative & Public Policy
1 http://classics.mit.edu/Hippocrates/epidemics.1.i.html, at Sec. 2, ¶ 5