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Abstract

This short Essay draws three lessons for evidence scholars from Stephen Yeazell’s justly celebrated work in civil procedure. The first lesson is to take history seriously but to be realistic about what it can tell us: to use history to gain perspective, not to recover lost wisdom. The second lesson is to take rulemaking seriously: to think about the processes through which evidence rules are formulated and reformed. The third lesson, and the most important, is to take lawyers seriously, not just as the agents through which procedure is implemented but as drivers and obstructers of reform.

This last lesson is an especially critical one for evidence scholars, because the complexity and opacity of evidence law has meant that lawyers are generally the only ones in a position to improve it. Lawyers’ interests, though, diverge in important ways from society’s interests. In particular, lawyers tend to view uncritically, and sometimes even to celebrate, the extraordinary degree to which our system of adjudication, and evidence law in particular, makes a party’s prospects in litigation hinge on the skills of the party’s lawyer. That feature of evidence rules and of our procedural system more broadly usually passes unnoticed, in large part because lawyers find it not only unobjectionable but deeply attractive. But from society’s standpoint, procedural rules work best—all things being equal—when they make the outcome of litigation turn on the merits of the case, not on the relative skills of the lawyers involved: on who is right and who is wrong and on what justice demands. We ask too rarely whether our procedural rules, including our rules of evidence, place too large a premium on lawyerly skill, and whether the culture of the legal profession, and its attachment to a certain heroic image of the trial lawyer, has warped the way that lawyers have struck that balance.

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