Every baseball fan knows that the unwritten rules are the most important. Oh, there is a place for written rules, like Rule 1.10: “The bat shall be a smooth, round stick not more than 2.61 inches in diameter at the thickest part and not more than 42 inches in length.” Good rule. Nice to know. But the really important rules, like “Never make the first or third out at third base,” are not written. You have to know the game to play the game well.
I thought I knew the evidence game but I’m not so sure any more. I thought, having read Federal Rule of Evidence 502, that I understood it. But I had the good fortune recently of being on a panel with Judge Lee Rosenthal of the Southern District of Texas, who chaired the Rules Advisory Committee which drafted the rule, and she put some pith in my epiphany.
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