Wednesday, September 28, 2011
The Learned Treatise: Ever Offered One at Trial?
About 25 years ago as a lawyer I was in the midst of a custody trial when the opposing lawyer offered as evidence a scholarly article written by a University of Minnesota professor who had studied the adverse effects upon children of living with a parent with a chaotic lifestyle, ie. multiple residences and multiple partners. Since this basically described my client, we were sunk and lost the case. For years to come I reminded this attorney (we are now both judges) of how he "pulled a rabbit out of the hat" in that case. I believe that most judges would find a learned treatise very helpful in deciding custody, parenting time and other family law issues. Rule of Evidence 803 (18) provides that a learned treatise may be admitted under certain conditions, but I think the reference to being admitted through an expert witness would probably not be required by most judges given the severely-limited resources of most family court litigants. The Comments refer to the requirement that it be read into the record and not admitted as a trial exhibit as being applicable in jury trials. This should be considered as another tool when your client can't afford the services of an expert witness.