Records and Expert Witnesses: What Attorneys Should Know About the Shifting Burden of Proof and FRE 803 (6)

As an attorney, especially an experienced one, you’ve probably developed a vast array of strategies and go-to ways to turn a trial in your client’s favor over the years. You’ve studied and applied every applicable law you can imagine, and it has hopefully worked out well for you and your clients.

However, you’re also more than likely aware of just how dramatically the standards you’ve grown accustomed to can change all of a sudden.

Recently, one of those major changes has occurred, and it affects how expert witnesses can be utilized; likely a key part of your legal process.

We’re going to go over what changes have been made, the parts of litigation they’ll affect the most, and what this means for your legal strategies going forward.

Records and Expert Witnesses

As you know, expert witnesses are imperative to providing the jury with a proper understanding of the evidence brought before them. In accident cases, an expert witness might describe the effects of certain injuries in the long-term, in criminal cases, an expert witness might describe how certain mental illnesses have triggered crimes in their experiences, and various other situations might require an expert’s experience and poignant explanations for a jury to properly understand the weight of certain pieces of evidence.

Commonly, records fall under this category.

An average jury member is just a random person selected from the voting registry. They might not be business owners, and they probably aren’t well-versed in the lingo used in business records or what any of that evidence actually means. That, or using certain types of business records can help the expert prove their point.

As such, and you’ve probably experienced this in the courtroom, expert witnesses will frequently use business records of all kinds in their testimony for a variety of reasons.

The types of business records used creates a fairly hefty list. Anything from transaction records and quarterly earnings reports, to police records from on-site incidents and accident reports, can be considered a business record.

In the past, these documents, and the ways they’re typically represented by expert witnesses, were leniently protected from hearsay restrictions. Now, things have changed, and this impacts you as an attorney.

How Has the Relationship Between Records and Expert Witnesses Changed?

The FRE, or Federal Rules of Evidence 803 (6) to be specific, has been changed in a way that has set new trends in court cases. As it seems, the burden of proof has shifted, and your expert witnesses must change the way they utilize records in the courtroom.

If an expert witness who is unaware of the rule changes presents a business document in an inappropriate way according to court standards, that document, and all of the witness’s testimony regarding that document, will be thrown out as hearsay.

It is your job as the attorney to sit down and educate your expert witnesses on how they may utilize records in their testimony to avoid that problem.

In the past, and what you’re probably aware of, the burden of proof was on the proponent of the evidence. If your expert witness entered a business document into the evidence, it had to be considered a trustworthy document with no reason to be doubted, and if the validity of that document was questioned, your team would have the burden of proving its legitimacy.

That is the part that has changed.

In 2012, the FRE regarding hearsay and business documents was brought under scrutiny and opened for comment. In the time since it has been changed to push the burden of proof onto the opposing party.

What this means is that, if you enter a business record of any kind into evidence, and it is assumed to be trustworthy, your opponent can question its validity. However, instead of you and your legal team being forced to prove its validity to the court, the opposing team has to prove it’s not valid.

That takes a tremendous load off of your shoulders; as you no longer need to plan counters for any random accusations of the document not being trustworthy. However, it also presents its own challenges.

What Does This Mean for Expert Witnesses?

First off, this is by and large a good thing for the team presenting evidence. Not just because the burden of proving that evidence to be trustworthy is on the opponent, either.

It also makes the system far more lenient towards expert witnesses.

Since the burden of proof has shifted, and all business documents are considered to be exempt from hearsay rules, your expert witness now has a wider variety of records they can utilize for their testimony, and the counters that the opposing team can present are extremely limited.

With this change, your expert witness can make use of almost any document you can think of. Even documents you might not have considered provide your expert witness with more lenient ways to interact with the court.

Here’s a list of the documents you can now reliably present as trustworthy business records exempt from hearsay rules.

Documentation of Actions Taken:

Let’s say the case is revolving around your client being sued because a customer fell and became injured on their property. Typically, expert witnesses can only rely on their personal experience in their testimony. However, with this change, they can now bring up and utilize the records of any actions the company took before, during, and after the incident.

Keeping with the slip and fall lawsuit example, this would allow your client to read and highlight the actions taken by your client to prevent falls, the actions they took during the incident to help the customer, and any follow-up efforts made; as long as those records are relevant to the expert witness, they can connect those to their professional experience, and it is no longer seen as hearsay or an untrustworthy testimony.

Expert Opinions:

Typically, an expert witness has to rely on personal experience in the field. A doctor functioning as an expert witness isn’t typically allowed to start talking about hypothetical situations and opinions presented by other experts.

However, the new change allows the written opinions of experts to be entered into evidence and discussed with the court; giving expert witnesses a bit more power to stray from tangible, first-hand, experiences they’ve had.

Company Plans:

Company plans also count as business records. Let’s say you want to present a company’s recorded plans to the court to either prove your client is making changes that are required, or that the opponent’s team isn’t working on things they’re obligated to for whatever reason. Those documents can now be presented to the court and used in expert witness testimonies; allowing your expert witness to apply their knowledge to the situation and, hopefully, strengthen your argument.

Any Hearsay Exempt Document:

Beyond the specific documents listed above, any document covered as exempt from hearsay claims falls under this change. The list is massive, and it is recommended to look at what is considered hearsay rather than worry about the specific items that aren’t.

Restrictions to the Change:

However, even though FRE 803 provides much more leniency now, it isn’t a free-for-all. You must meet certain standards before entering a business record into evidence for your expert witness.

Namely, a judge still has to approve the document as trustworthy. This is just part of entering anything into evidence.

Then, you have to ensure that the document was recorded around the time the incident took place. Bringing up thirty-year-old documents that are completely detached from the case isn’t covered.

Documents must also be recorded knowingly. Recording documents without the person’s knowledge and presenting them to the court is also not covered.

For other normal standards, the document must have been recorded in a way that is normal for the business to do. If the document was generated as an expense report during a business event, or otherwise as part of normal business activity, it’s covered. Documents that are recorded in odd or suspicious ways will likely not pass the trustworthiness test.

Beyond that, there are other requirements such as the document being kept as a normal part of business, and it must be declared trustworthy by the custodian of the records or another qualified, non-involved, witness to the record’s validity and trustworthiness.

Is FRE 803 (6) Universal?

If you’ve been reading through this, you’re probably excited to start taking advantage of the more lenient rules. However, you might want to take a moment to look up the courtroom you’re going to be litigating in.

FRE 803 was amended in 2013 and closed for comment shortly after, but that doesn’t mean every court in the US immediately adopted it. In fact, the old standard remained common for years, and even now, in 2022, some courtrooms still have not adopted the new standards.

This is potentially due to a number of reasons. The court you’re practicing in might have simply not updated its standards yet, it might be a court that is a bit behind on more obscure changes such as this one, or the issue might have simply not presented itself in that court, yet.

Either way, there are still many courtrooms across the country that have not officially adopted FRE 803 (6) as of the time of this writing. If you end up practicing in a courtroom that hasn’t adopted FRE 803, the benefits presented here aren’t sure to apply to you; the old standard of the evidence proponent accepting the burden of proof might still be withheld, or the court might have to look at the situation at hand and act accordingly.

Luckily, that problem is becoming less commonplace. Over the years, more courtrooms across the country have adopted FRE 803 (6), and there are plenty more that are in the process of adopting it. Keep an eye on the courts you operate in to make sure you know if it has adopted the new rule change or if it plans to in the future.

The added leniency for expert witnesses utilizing business records is powerful in the courtroom, and taking advantage of 803 can easily turn the tides of a case.

How to Prep Expert Witnesses for FRE 803 (6) Changes

Finally, as we mentioned earlier, it’s up to you as the legal team’s attorney to ensure your team’s expert witness understands these rules.

If you’re operating in a court that has not adopted the new version of FRE 803, you can use the same prep process you have for years; simply ensure that they know what types of documents they can utilize, and how they must present them to match the requirements on opinions and factual information presented by expert witnesses.

If the court you operate in has adopted the new rules, the process is largely the same. However, you need to spend more time on it. The number of documents that can be used has grown dramatically under the new rules, and the age-old hearsay argument used by your opponents is largely obsolete for most of them. Meaning that your expert witness has far more flexibility with how they present documents, and how they can use certain documents in conjunction with their expert knowledge to voice experiences and thoughts that otherwise would have the testimony dismissed.

Hiring Expert Witnesses Aware of the New Rules Who Can Help Your Case

Of course, actually going through the process of informing your expert witness, after interviewing them and selecting them as an expert witness in the first place, is extremely time-consuming. It’s necessary to ensure that your best evidence doesn’t get thrown out of court, though.

Luckily, there are ways to make the process easier and make sure you’re doing things by the book.

A professional litigation group can help you find expert witnesses who are aligned with the needs of your case, and it can help you ensure that those expert witnesses are informed regarding how they can interact with business records and the court; saving you a tremendous amount of time, energy, and stress.