Civil litigators often overestimate the amount of evidence courts will exclude. Fewer trials mean that litigators focus more on the technical rules of exclusion than on the exceptions, which in many instances threaten to swallow the rules. Sitting at their desks with large stacks of e-mail evidence, litigators imagine every possible ground of exclusion. The billable hour tends to encourage many litigators to undertake this analysis with zeal.
But as litigators prepare for trial, they should consider at least three principles. First, courts tend to construe the rules of evidence in favor of admission and against exclusion. Second, the dynamics of trial practice tend to lead to admission of evidence through compromise rulings, so-called “opening the door” by the opponent and court-encouraged evidence-bargaining. Third, once the trial court has admitted the evidence, the losing party faces an even higher standard to obtain a reversal on appeal.
Wide-open rules of evidence?
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