Saturday, January 12, 2008

John Henry Wigmore Awards for Lifetime Achievement in the Law of Evidence and the Process of Proof

On January 5, 2008, the Evidence Section of the Association of American Law Schools awarded two now-legendary men -- William L. Twining and Judge Jack B. Weinstein -- the inaugural John Henry Wigmore Awards for Lifetime Achievement in the Law of Evidence and the Process of Proof.

I had the honor of introducing Professor Twining. Professor Margaret Berger introduced Judge Weinstein.

I made the following comments about Professor Twining:

Twenty two years ago Richard Lempert wrote that evidence scholarship was “moribund” when he began teaching in 1969. Having administered that slap at the Evidence professoriate of his day, Lempert added a passage that is redolent of Goethe’s Faust’s complaint about dessicated and life-sapping scholarship. Lempert wrote that although the federal codification movement had begun to breathe new life into the field of evidence, law review articles about evidence generally followed "the model 'What's Wrong with the Twenty-Ninth Exception to the Hearsay Rule and How the Addition of Three Words Can Correct the Problem.'" These articles, Lempert said, "were seldom interesting and if they had potential utility it was rarely realized, for the federal rules remain today largely as they were when enacted. The work was, in short, a timid kind of deconstructionism with no overarching critical theory to give it life."

Lempert’s claim that Evidence was on death’s door in 1969 or 1970 was an exaggeration. Judge Weinstein was doing important work in Evidence in the late 1960s. So too were professors such as John Kaplan and Vaughn Ball. Moreover, James H. Chadbourn’s painstaking preparatory work in the 1960s on the forthcoming California Evidence Code was nothing to sneer at.

Still, Lempert’s characterization of evidence scholarship circa 1970 was, in the main, on target.

But things that start badly sometimes turn out well.

In the 1970s and 1980s fresh faces emerged who changed the face of evidence scholarship here and elsewhere in the world. Among the innovators were Richard Lempert himself, David Kaye, Judge Jack Weinstein, and, of course, William Twining.

Twining cannot be given sole credit for the broadening and the deepening of evidence scholarship that we have witnessed during the last three-and-one-half decades.

But of course no single person can take sole credit for the flowering of evidence scholarship during the last 30-35 years.

Be that as it may, Twining has been an important player in the transformation of evidence scholarship.

Furthermore, Twining has made distinctive contributions to evidence scholarship, and his contributions have put a special imprint on this still-mutating field, an imprint that will be felt, I think, for decades to come.
Before I say just a few words about just a very small sample of Twining’s many distinctive contributions, I want to make two general points about Twining’s influence.

First, America is not the world. Twining’s influence on the development of evidence scholarship in the rest of the world probably exceeds any other individual’s. As many of you know, Twining is now known for his work on globalization. But even in the field of evidence, Twining is a scholar with a truly global reach.

Second, Twining is Evidence’s Mao Tse-Tung. He, more than anyone else, has taken steps to institutionalize the evidence revolution – he has worked to establish programs and communities in order to ensure that scholarship about evidence will continue to deepen, broaden, and evolve, if not forever, then at least for quite a while to come.

For example, not only has Twining been working at this evidence business for a very long time, and not only does he have legions of former students & admiring ex-colleagues all over the world, he is also one of the prime movers behind the sprawling, interdisciplinary, and exciting research program and community at University College London that goes by the name Enquiry, Evidence, and Facts. (If all goes well, this program and this community will continue in some form at UCL.)
Now I want to say just a few words about just three of Twining’s many contributions to evidence scholarship. I must use broad brush strokes; I cannot go into detail. This is an introduction rather than a eulogy, and I have only five minutes to speak.

If I have his personal history right, Twining did not begin his teaching career in the UK. But he was in the UK when he began his work on evidence and proof in earnest.

Academics tend to be somewhat isolated from the real world.

This was certainly true of legal academics in the UK in the 1960s and 70s, which is when Twining came of age as a law teacher: at that time the vast majority of UK law teachers had little or no experience in law practice. (The practice of law was a different career path.)

Furthermore, in those days law teachers in the UK, even (or particularly) law teachers (dons) at Oxford and Cambridge, were generally an intellectually insular lot: they generally had little interest in any academic field other than law.

As I see it, Twining meant to send his unrealistic and parochial academic colleagues in the UK three messages.
Two of those messages are particularly germane in today’s America, now that American law teachers are becoming increasingly divorced from law practice – two of Twining’s three messages amount to shots across the bow of people who are entering law teaching today.
The three messages are these:
1. Getting the facts right is very difficult.
2. Evidence and facts are a very big part of law.
3. Factual inference and proof drip with logic and with theory.
1. The difficulty of getting the facts right.

Attempts to get the facts right face at least two big difficulties.

First, subjectivity and prejudice threaten the very core of the enterprise of fact finding.
Second, getting the facts right is an arduous and time-consuming enterprise – facts are not reeled in like fish in a well-stocked pond – because
(a) getting the facts right requires attention to evidentiary details, large masses of evidence; and
(b) drawing sound conclusions from masses of evidence requires the development of multiple multistage arguments.
Twining has taught that it is important that budding lawyers and judges study this painstaking and time-consuming process.

Twining taught that it is possible to teach budding lawyers and judges useful things about the process of inference and proof – that although assessment of evidence is at least as much art as science – in his view, more art than science – there is reason to think that law teachers can teach their students something useful and important about the arduous and difficult activity of factual inference and factual proof.

But Twining makes it clear that no student should be left with the notion that there is somewhere a magic bullet – a rote or mechanical procedure that can guarantee that any dummy or slouch can get the facts right without doing a heckuva a lot of work. Twining teaches and preaches that exactly the opposite is the case: sound inference generally requires good judgment and a heckuva a lot of work.

He also teaches that even when lawyers, judges, and fact finders work conscientiously and hard, there is no guarantee of infallibility about facts. Twining believes that an additional reason for getting law students to study evidence, inference, and proof is to get them to understand the many ways in which inference and proof can go wrong.

2. Evidence and facts are an important part of law.

Lawyers do many things. Two of the many things they do is (i) gather and assess legal materials (i.e., “legal research and analysis”) and (ii) gather and assess evidence.
Twining, who is something of a legal realist, had to remind UK law teachers that practicing lawyers do more of the latter than of the former.
Most of you [Evidence teachers] don’t need to be reminded of this.
But some of the people who are entering law teaching today need to be reminded of this.
Perhaps the U.S. Supreme Court also needs to be reminded of this. (The Court is not overflowing with people who have seen law practice first-hand.)
3. Twining’s third general message has to do with the relationship between evidence & theory.

One of Twining’s original motivations for studying evidence was jurisprudential: he wanted to develop a better understanding of law by getting a better understanding of factual proof in law.

The structure of factual inference and proof should be important to many people other than students of factual inference and proof in law.

The nature of argument about evidence should interest to students of the nature of argument about legal rules and principles.
For one thing, arguments about legal principles may spring from facts about the world. For another thing, even legal argument and legal interpretation may be, to an important extent, an effort to infer how things actually stand in the world.
The nature of factual inference in law should interest also philosophers in general – because epistemology is central to philosophizing about human society and the human condition, and the workings of factual inference in law shed light on problems of epistemology.

Evidence theorists need to become a bit more imperialistic: they need to tell or remind other legal theorists that theories about law cannot get along if those theories are bereft of arguments about the nature and structure of inference and proof. You – you down-to-earth evidence theorists – must teach those fancy-pants legal theorists that they can’t and won’t go far unless they too learn to take evidence, inference, and facts very seriously indeed.

This is one of William Twining’s most important lessons.

I give you William Twining.


An expanded version of the above introduction will be published in the Seton Hall Law Review. The expanded version has note material. You can get the expanded introduction here.

Prospective Law Clerk, Test Your Mettle (or Your Legal Acumen or ... Whatever)

Peter Plaintiff brings a civil action for damages against David Defendant in a court of the State of Blackacre. The complaint avers that Defendant was Plaintiff’s landlord and that Defendant unlawfully evicted Plaintiff from the apartment that Plaintiff had leased from Defendant. In his answer Defendant denies that he evicted Plaintiff. Defendant avers, in the alternative, that he had good cause to evict Plaintiff and terminate the apartment lease.

This civil action – Peter Plaintiff versus David Defendant – proceeds to trial. The presiding judge is Judge Bolix Wisdom. You are Judge Wisdom’s law clerk. Your name is Diligent Clerk.

In her opening statement Plaintiff’s counsel asserts that the evidence at the trial will show that a bomb destroyed the bathroom in Plaintiff’s apartment six months before the expiration of Plaintiff’s lease and that Plaintiff, not having a bathroom, decided to move out of the apartment. Plaintiff’s counsel further states that the evidence at the trial will show that Defendant arranged for the bomb explosion that destroyed the bathroom in the apartment and that Defendant did this vile deed because he wanted to be rid of Plaintiff because Defendant had found a prospective tenant who was willing to pay vastly more rent for the apartment than Plaintiff was obligated to pay.

Defendant’s counsel tells a very different story in his opening statement. Although he agrees that a bomb destroyed the bathroom in the leased apartment, Defendant’s counsel states that the evidence at the trial will show that the bomb explosion in the apartment was caused, not by Defendant, but by Plaintiff. Defendant’s counsel adds that the evidence will show that Plaintiff built the bomb that destroyed the bathroom in the apartment.

Peter Plaintiff is the first witness. On direct examination he gives testimony that tends to support his claim that David Defendant arranged for the bomb explosion in the apartment. At the conclusion of the direct examination of Plaintiff , Defendant’s counsel asks for a bench conference and then states:

Your Honor, we believe Plaintiff was and is a member of the Sao Paolo Branch for Political and Religious Liberation, or – as it is commonly known – SPBPRL. We believe that SPBPRL was and is a neo-Maoist political and military movement, a movement whose founding was inspired, oddly enough, by South America’s Catholic Liberation Theology. SPBPRL was and is dedicated to the elimination of capitalism and the destruction of all property. We believe that a chapter of SPBPRL – a chapter consisting of Peter Plaintiff and two other people – held weekly meetings in Plaintiff’s apartment to plot the destruction of capitalism and property in Blackacre. We believe that Plaintiff and his cohorts built and exploded the bomb in the bathroom of his apartment in an effort to eliminate capitalism and destroy property in Blackacre. During our cross-examination of Plaintiff, we will ask Plaintiff to confirm these points. If he denies any of them, your Honor, we propose to call his former roommate and collaborator Rabid Rouser, who has personal knowledge of all the matters I have just mentioned. I should add, your Honor, that Plaintiff and Rouser were not merely members of the Blackacre chapter of SPBPRL. They were in fact co-founders of SPBPRL. We will also confirm this point during our cross-examination of Plaintiff or, if need be, through the testimony of Rouser. This is our offer, your Honor, and we ask that you rule that we can proceed in the manner I have just described.
Plaintiff’s counsel states, "Your Honor, this is the most ridiculous story I have ever heard. In any event, all of the testimony and evidence that my esteemed colleague vainly hopes to elicit from Plaintiff and Rouser is inadmissible. And let me tell you why." Before Plaintiff’s counsel can say anything more, Judge Wisdom interrupts her by saying, "No, that’s o.k. I don’t want to hear anything more from you. I’ve got a very bright law clerk. But my sense is that there are some thorny evidence issues here. I’m going to adjourn the trial for a day so that I can consider them diligently." Snickering slightly, Judge Wisdom turns to you and says:
Diligent, I want you to write a memo for me. I want your memo in my hands in 24 hours or less. I want you to tell me if the testimony that defense counsel hopes to elicit from Plaintiff or Rouser – or from both of them – is admissible or inadmissible. Oh yes, I almost forgot: Diligent, don’t forget to do your homework. What I mean is this: I’m sure you’ll have to do some legal research. I can’t imagine that you can give me a good analysis of this thorny problem without doing some legal research. So get to work.
Write the memorandum and submit it within 24 hours.