What Can You Do With a Learned Treatise?
Courts handle a lot of different types of trials: civil, criminal, patent, contract, personal injury, mass tort, etc. But while trials come in many flavors, and employ very different bodies of law, they all, theoretically, share the same rules of evidence. While these rules of evidence vary between courts, they don't vary between courtrooms. If you show up in Fulton County Superior Court, you're getting the Georgia Rules of Evidence, whether it's a slip-and-fall or a double homicide. If you show up in the Eastern District of New York, you're getting the Federal Rules of Evidence, whether it's a class action antitrust case or a dude who rear-ended a mail truck.
But while the body of the evidence rules are the same, there are some rules that come up more frequently in specific areas of law. For example, you could spend your whole career trying business cases without encountering an excited utterance. Whereas if you're trying car crashes or bar room brawls, you'll likely develop some familiarity with the rule.
One rule with a great deal of importance for lawyers who deal with medical experts (whether in personal injury, med-mal, or mass tort) is the Learned Treatise exception to the hearsay rule. In a nutshell, this exception allows an attorney to make use of a textbook or academic journal in examining an expert in that field. So, if you're cross examining a doctor who thinks that your client isn't badly hurt, you can make use of a medical journal that proves the doctor to be wrong. Similarly, if you are presenting an engineering expert to explain why a bridge collapsed, you can make use of an engineering textbook that bolsters his opinion, at least in federal court.
While this rule exists in some form or fashion nearly everywhere, the specifics tends to vary quite a bit. In the federal system the Learned Treatise rule is embodied in Federal Rule of Evidence 803(18):
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: …
(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:
(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and
(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence but not received as an exhibit.
While the phrase “Learned Treatise” has an old-timey quality to it, suggestive of some ancient common law principle, this turns out not to be the case. Indeed, Professor Wigmore, writing in 1904, considered the rule to be a wholly modern invention, one adopted only in some jurisdictions, and largely driven by the rise of modern medicine as a field where authoritative statements and published journals represented a useful source of truth. [1]
Similarly, the Advisory Committee that originally drafted the Federal Rules of Evidence in the early 1970s acknowledged that while the Learned Treatise exception was “generally favored” there were “various views” on how to make use of it, and the states had many different approaches. This is, to a lesser but meaningful extent, still true today.
Let's start with the Federal Rule. Under Rule 803(18) you can only use the treatise if it is established as a “reliable authority” by an expert (yours or the other side’s) or the court. If you just want to show the treatise to your own expert to bolster his opinion, this is trivial. Show him the book, ask if it’s reliable, and you’re already home.
If you want to cross examine the other side’s expert, things become more complicated. If you have an expert witness of your own who can vouch for the treatise, this will still work, though there are potential logistical issues depending on when that witness is scheduled to testify. You may need to make an offer of proof to the court to have the treatise “vouched for” subject to connection later in the trial.
But if you don't have an expert, then the game is really on. Some judges may spot you the reliability of the treatise if it's something truly famous – think the Journal of the American Medical Association. But in most cases, you're going to be stuck trying to get the other side’s expert, a slippery professional witness, to admit that a publication that disagrees with him is a “reliable authority.”
This can be tough! If you aren't dealing with something like JAMA or a journal the expert himself has published in, it can be very easy for the expert to conveniently forget that they've ever heard of it. But all is not lost. While it may involve some arm twisting and or tooth pulling, in Federal Court you don't actually have to get the wicked expert to concede much to get the treatise in. He or she doesn't have to use the word “authoritative” if he or she concedes that:
(1) the journal at issue was peer-reviewed and reputable,
(2) the author was a “preeminent industry expert”;
(3) the treatise was “probably” reliable given the author's qualifications;
(4) the treatise was a “standard reference” in the profession;
(5) the treatise was “a useful reference and text”;
(6) the text was “well-respected ... a very good book, a standard book, and a good source”;
(7) the text was a “good reference[]”;
(8) the text was “a standard text” authored by “an eminent neonatologist”;
(9) the treatise was “pretty good” and “a good training source”; [or]
(10) the treatise was used to keep up to date with industry practice and its articles were “generally considered somewhat authoritative.” [2]
If you've covered your bases in deposition, you may even be able to snag one of these admissions before trial and avoid the knife fight in front of the jury.
However, things operate differently in New York State court, particularly outside the Commercial Division. In ordinary non-malpractice cases, there may be no expert depositions and only threadbare CPLR 3101(d) disclosures rather than fulsome reports. It is an “open question” whether a treatise can be admitted simply to bolster your own expert. [3] And to cross examine the other side’s witness you need to get that expert specifically to admit that the treatise is not merely reliable but “authoritative.” They may not want to do so! Particularly if they've played this game before and know how limited your options are if they simply say no.
New York's rule is a bit of an aberration. New Jersey used to follow a similar rule but abolished it in 1992. In doing so, the New Jersey Supreme Court held that the practice “serves only to protect the ignorant or unscrupulous expert witness.” [4] But despite repeated calls to change it, the limited and heavily gameable rule continues to apply in New York State.
What can you do with a learned treatise once you've gotten it in? In federal court you can read it to the jury, but you can't hand it to them as an exhibit. The theory is that the treatise is, in some sense, a substitute for expert testimony. The drafters of the evidence rules thought that providing a written copy would bolster or privilege the treatise above the testimony of experts that actually appeared at trial. As we've written before, the rules about when juries can be given transcripts aren't terribly well thought out and should be considered part of the long historical tradition of judges pressuring juries to hurry up and reach a verdict so that folks can get home to dinner. But rules are rules and if you want the jury to read a treatise in the jury room you'll need to come up with another way, perhaps by putting it in a demonstrative and trying your luck.
The state courts are all over the map. Some, like New Jersey and Illinois, essentially follow the federal rule. Others like California and Georgia, allow treatises only for impeachment, not for bolstering an expert. Still more states, like Colorado and Connecticut, actually go further than Rule 803(18) and allow the treatises to be received as exhibits and brought into jury deliberations.
What's the upshot of all of this? You have to keep the forum in mind when preparing for trial. Your ability to argue based upon academic or industry consensus is a lot stronger in federal court than it is in many states. An expert strategy that works in federal court may not be allowed at all in New York state court. And in forums where you do have broader ability to make use of Learned Treatises at trial, it pays to do the work qualifying them in advance at deposition. That way, you don't have to duel with a professional witness at trial about the scholarly merits of the East Hoboken Journal of Biochemical Engineering.
[1] John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law Volume III § 1690 (1904).
[2] See Theodore F. Roberts, Medical Literature in the Courtroom: Learned Treatise Trial Practice and Procedure, 45 Am. J. Trial Advoc. 297, 305-306 (2022) (collecting and categorizing cases).
[3] See Hinlick v Dreyfus, 6 N.Y. 636 (2006).
[4] Jacober by Jacober v. St. Peter’s Medical Center, 128 N.J. 475, 490 (1992).
