You Keep Knocking But You Can’t Come in, Locking the Rule 703 Backdoor
At trial, attorneys sometimes want the jury to hear about reports and conclusions of treating doctors without actually having those treating doctors come to court to testify. This is accomplished by having testifying doctors tell the jury about the non-testifying doctors’ reports or conclusions. Without getting too technical, there are Court Rules that presumably allow this practice so long as the non-testifying doctors’ reports are of a type reasonably relied on by experts in the field (Rule 703). However there are Court Rules that do not allow this practice (Rules 801/802) for a whole host of reasons. One of the primary reasons is that a lawyer can’t cross examine the report or findings of a doctor who isn’t in court to testify.
The practice itself is sometimes referred to as backdooringâ€ because Rules 801/802 are the proverbial front doors that wouldn’t allow the non-testifying doctors’ reports or conclusions to get before the jury.
This week, the New Jersey Appellate Division’s Judge Sabatino, delivered a reasoned and cogent 44-page opinion, in James v. Ruiz, clarifying the existing law, which is that the back door is locked! With the back door locked, it is imperative that attorneys ensure that the appropriate doctors are all lined up to testify at trial. If you would like a copy of the opinion, you can contact Bryan H. Mintz or go to the New Jersey Court’s website at http://www.judiciary.state.nj.us/opinions/a3543-13.pdf.