The Legal Advocate

A blog brought to you by the national institute for trial advocacy

Category Archives: Quick Tips

Asking Expert Witnesses for an Opinion ‘to a Reasonable Degree of Certainty’ Redux

Posted On By

Written by NITA guest bloggers Iva Čechráková and Michael J. Dale

A question has recently arisen regarding the rationale or basis for the use of the phrase “to a reasonable degree of certainty” in California. The question was posed, based upon our June 20, 2018, blog post, Why Do Lawyers Ask Expert Witnesses For An Opinion “to a reasonable degree of medical certainty”? The answer appears to be similar to what we discovered in other jurisdictions: it is tradition.

Jeff L. Lewin in his article on the subject describes the evolution of the term and the process by which the phrase spread into other states from Illinois.1 Referring to, among others, courts in California, Lewin stated that “the appellate courts simply quoted or paraphrased the trial testimony, and such cases merely reflected that attorneys in the jurisdiction were using the phrase.”2 At another point, the author, making a comparison with courts in different states where the courts endorsed the use of this phrase, seems to have encouraged its use.3

The answer in California appears to be twofold. First, California is among the states that do not have a relevant statute incorporating the phrase. Second, research discloses no reported California case discussing the reason for the use of the phrase. Rather, a substantial body of California case law, like reported opinions in other jurisdictions, simply refers to the phrase without explanation.

 

Iva Čechráková is a graduate in law from Charles University, Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She is currently working for the White and Case law firm in Prague and can be reached at ivacechrakova@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.


1 Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,” 57 Md. L. Rev. 380, 439–40 (1998).
2 Id.
3 Id.

Whether Police Accident Reports Admissible in Evidence under the Business Records Exception to Hearsay Rule: An Analysis of the Law in Three States

Posted On By

by NITA guest bloggers Michaela Vrazdova and Michael J. Dale

In trial practice, the question often arises as to whether police accident reports are admissible into evidence under the business record exception to the hearsay rule, and if they are not, why not. It turns out that there is no single answer, as states differ. Therefore, this article analyzes the law regarding this issue in three representative states—New York, Florida, and Illinois – in the context of civil litigation and demonstrates differences in these states.[i]

New York Law

In New York, accident reports can be admissible into evidence under the business record exception to the hearsay rule in civil cases when certain requirements are met. Under § 4518 of New York Civil Practice Law and Rules, a police accident report can be admissible if “it was made in the regular course of any business,” “it was the regular course of such business to make it,” and it was made “at the time of the act, transaction, occurrence or event, or reasonable time thereafter.”[ii]

Case law in New York qualifiedly supports police report admissibility. In Johnson v. Lutz, the New York Court of Appeals ”read into the then existing statute a requirement, not expressly found in it, that, to be admissible, the person making the police report be the witness or that the person supplying the information to the entrant be under a business duty to do so.”[iii] Admissibility in New York is based upon the following factors.

  1. Police officer’s own observations while carrying out police duties

An accident report is admissible “so long as the report is made based upon the officer’s personal observations and while carrying out police duties.”[iv]

For example, even though she did not witness the accident itself a police officer may state in the accident report that she smelled alcohol and that the person in question seemed to be intoxicated because such statements were based on the officer’s own observations and were not hearsay.[v]

Moreover, a diagram of an accident scene in an accident report may be admitted if the police officer personally observed the location upon his arrival on the scene of the accident and the diagram had been made immediately after the accident and before there had been any movement of the vehicles.[vi] Thus, when a vehicle involved in an accident is moved prior to the police officer’s arrival, such diagram is held to be inadmissible.[vii]

When there is a dispute between parties involved in a car accident as to where exactly the accident occurred and the police officer stated in the accident report certain information about the location of the accident, a New York appellate court excluded such information on the basis that there was insufficient evidence that the “information was derived from the personal observations of the responding police officer, who did not witness the subject accident.”[viii]

  1. Witness has personal knowledge and is under business duty to report

Statements of a witness from accident reports are admissible “where it is demonstrated that the informant has personal knowledge of the act, event or condition and he is under a business duty to report it to the entrant.”[ix] This is a basic business record exception provision.

  1. Witness’s statement fall under another hearsay exception

The witness’s statement in an accident record may also be admitted into evidence when the statement falls under another hearsay exception.[x] The party who wants to admit the witness’s statements into evidence has to prove that the statement falls under another hearsay exception and that such an exception applies in a particular case.[xi]

 

For example, in one case, a defendant’s employee who was involved in an accident testified during his deposition that he observed the plaintiff driving next to him, when he felt an impact to his car and saw the plaintiff talking on her phone.[xii] The plaintiff was seeking to introduce a statement of the defendant’s employee from the accident report, in which the witness stated that he did not observe plaintiff’s car prior to the accident.[xiii] The plaintiff was arguing that the statement should be admitted into evidence because it fell under the party admission exception to hearsay under New York’s rules of evidence, as it inculpated the defendant, and that it also fell under the prior inconsistent statement exception to hearsay.[xiv]

Similarly, the statement of the defendant that “he had fallen asleep while driving and that his vehicle had crossed over a double yellow line into oncoming traffic and struck a telephone pole on the opposite side of the road” was admissible, as the statement fell under the admission of a party opponent exception to hearsay.[xv]

A party in New York may also seek to introduce statements found in the police accident report under the spontaneous declaration and declaration against interest exceptions to hearsay.[xvi]

What if the identity of the source is unknown?

To determine whether some hearsay exception may apply in New York, one must identity the source of information, and thus the problem arises when the source of the information stated in the accident report is unknown.

In one case, the plaintiff was claiming that a traffic light was green in his favor and the defendant was saying that the light was green in her favor.[xvii] The police accident report contained a statement that the light was green in the defendant’s favor.[xviii] However, it did not state who the source of this information was, and the police officer did not witness the accident.[xix] The New York court ruled that this information “may have been supplied by defendant, by plaintiff, by an unidentified eyewitness, or by some combination of these persons.”[xx] Thus, such statement from the accident report was not admissible, as it could not be determined whether some hearsay exception could apply.[xxi]

In another case, the plaintiff claimed that defendant’s car rear-ended his car, whereas the defendant claimed that plaintiff backed into her car.[xxii] The police accident report contained a statement from an unknown source that the “defendant rear-ended the plaintiff.”[xxiii] Because the court could not determine who the source of this statement was and whether some exception to hearsay could apply, the court ruled that such report should not have been admitted into evidence.[xxiv]

Lastly, for the accident report to be admitted into evidence in New York, the report must “bear a certification or authentication by the head of . . . department.”[xxv]

To conclude, the police accident reports are admissible in evidence in New York when certain requirements described above are met.

Florida Law

The law in Florida differs dramatically from the law in New York, as there is an express statutory provision in Florida prohibiting the admission of crash reports into evidence in any case—civil or criminal.

Section 316.066(4) states that

[e]xcept as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal. However, subject to the applicable rules of evidence, a law enforcement officer at a criminal trial may testify as to any statement made to the officer by the person involved in the crash if that person’s privilege against self-incrimination is not violated.[xxvi]

Thus, the police report remains inadmissible in a civil case. In a criminal case, however, certain non-inculpatory statements of a defendant may be admissible. In addition, one Florida court has held that crash reports are also not admissible in administrative proceedings.[xxvii]

The rationale for adopting § 316.066(4) Florida Statutes and excluding the crash reports in civil cases was “to encourage true and uninhibited reports of accidents, the ultimate goal being to make highways safer.”[xxviii]

The rationale for application of this section to criminal cases was “to ensure that accident information could be compelled without Fifth Amendment violations.”[xxix] That means a person involved in the crash can make statements to a police officer and “that the state does not violate an individual’s constitutional privilege against self-incrimination when he or she is compelled to truthfully report to law enforcement the facts surrounding an automobile accident.”[xxx]

A question that arises next is whether personal observations of the police officer who comes on the scene of an accident after the fact are admissible.

In State v. Edwards, Florida’s Fifth District Court of Appeal ruled that a police officer’s observations (e.g., the officer smelled alcohol from defendant’s breath, defendant’s speech was slurred, defendant had problem with balance, defendant’s eyes were bloodshot) were admissible, as they were observations of the officer and not statements under § 316.066, and also that the results of sobriety tests are admissible into evidence, as such results are not communications protected by § 316.066(4) of the Florida statutes.[xxxi]

Similarly, the court ruled in State v. Cino that only statements are protected under § 316.066(4) and thus observation of person’s “physical appearance, general demeanor, slurred speech or breath scent” are not protected by this section and, in addition, do not violate the defendant’s right against self-incrimination.[xxxi]

Furthermore, the Florida Supreme Court has ruled that observations of a police officer on the accident scene―such as the location of the vehicles involved in an accident when the police officer arrived, whether there were any skid marks, and the extent of how much were the cars damaged―are all admissible in evidence because they are personal observations of the officer and do not fall under § 316.066.[xxxii] As the court said, “[a]ll this information ordinarily appears on the accident report prepared by the investigating police officer and it is clearly admissible at trial.”[xxxiii]

Finally, it is possible that a party involved in a crash waives this privilege when the party “opens the door by introducing inadmissible information contained in the accident report.”[xxxiv]

Illinois Law

Rule 236 of Illinois Supreme Court Rules deals with admission of business records into evidence and enumerates certain requirements a record has to meet to be admitted into evidence as a business record. With regard to police accident reports, subsection (b) of Rule 236 states that “[a]lthough police accident reports may otherwise be admissible in evidence under the law, subsection (a) of this rule does not allow such writings to be admitted as a record or memorandum made in the regular course of business.”[xxxv]

It follows that police reports are generally not admissible in either civil or criminal trials.[xxxvi] Interestingly, in certain cases a “mere attempt to introduce such an exhibit may be considered reversible error.”[xxxvii] Thus, in one civil case, when a defendant’s attorney repeatedly asked the plaintiff “in the presence of the jury to introduce the police report into evidence,” the Illinois appellate court ruled that such conduct of the defendant’s attorney was prejudicial to the plaintiff.[xxxviii] However, “where a proper foundation has been laid, certain portions of a police report have been admitted into evidence as past recollection recorded.”[xxxix] Moreover, in Illinois certain portions of the police accident report may be admissible for the purpose of impeachment.[xl]

Conclusion

Every state has different legislation when it comes to the question of admissibility of police accident reports under the business records exception to hearsay.[xli] New York has a statute that allows accident reports to be admissible when the report was made in the regular course of business, it was the regular business to make such record, it was made at the time of the act or a reasonable time thereafter, and it was based upon the police officer’s own observations and while carrying out her official duties. Moreover, statements of other persons (not a police officer) in an accident report may be admitted into evidence when the person had a business duty to report to police officer or when the statement falls under another hearsay exception (e.g., admission of party, spontaneous declaration).

On the other hand, Florida has a statute that states that a crash report made by a person involved in a crash or a statement of such person to a police officer is not admissible into evidence in any trial—civil or criminal. The rationale for the rule in Florida is to encourage truthfulness of people when making statements to police officer after the incident and in criminal cases to protect the defendant’s right against self-incrimination.

Illinois Supreme Court Rule 236 discusses admissibility of business record explicitly, stating in subsection (b) that a police report may not be admissible under the business record exception to hearsay.

In conclusion, the best practice regarding the admissibility of police report under the business record exception to hearsay is to check the appropriate state statute and case law in the appropriate jurisdiction. As this discussion shows, states can differ significantly about the admissibility of police accident reports.


Michaela Vrazdova is a graduate in law from Charles University in Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She can be reached at michaela.vrazdova@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

[i]. As this research is limited to three states, counsel must check the law in their own jurisdiction.
[ii]. N.Y.C.P.L.R. 4518(a) (McKinney 2017).
[iii]. Toll v. State, 299 N.Y.S.2d 589, 591 (N.Y. App. Div. 1969) (discussing Johnson v. Lutz, 170 N.E. 517 (1930)).
[iv]. Memenza v. Cole, 16 N.Y.S.3d 287, 289 (N.Y. App. Div. 2015).
[v]. Bhowmilk v. Santana, 33 N.Y.S.3d 51, 51–52 (N.Y. App. Div. 2016).
[vi]. Mooney v. Osowiecky, 651 N.Y.S.2d 713, 714 (N.Y. App. Div. 1997). See also Campbell v. Manhattan and Bronx Surface Transit Operating Authority, 438 N.Y.S.2d 87, 88–89 (N.Y. App. Div. 1981).
[vii]. Mooney, 651 N.Y.S.2d at 714.
[viii]. Shehab v. Powers, 54 N.Y.S.3d 104, 106 (N.Y. App. Div. 2017).
[ix]. Matter of Leon RR, 397 N.E.2d 374, 378 (N.Y. 1979).
[x]. Toll, 299 N.Y.S.2d at 592.
[xi]. Tyrrell v. Wal-Mart Stores, Inc., 97 N.Y.2d 650, 651 (N.Y. 2001).
[xii]. Brown v. URS Midwest, Inc., 18 N.Y.S.3d 704, 705–06 (N.Y. App. Div. 2015).
[xiii]. Brown, 132 A.D.3d at 927.
[xiv]. Id.
[xv]. Scott v. Kass, 851 N.Y.S.2d 649, 651 (N.Y. App. Div. 2008).
[xvi]. Cover v. Cohen, 461 N.E.2d 864, 870 (N.Y. 1984).
[xvii]. Gagliano v. Vaccaro, 467 N.Y.S.2d 396, 397 (N.Y. App. Div. 1983).
[xviii]. Id.
[xix]. Id.
[xx]. Id.
[xxi]. See id.
[xxii]. Noakes v. Rosa, 862 N.Y.S.2d 573, 574 (2d Dep’t 2008).
[xxiii]. Id.
[xxiv]. Id.
[xxv]. N.Y. C.P.L.R. 4518(a) (McKinney 2017).
[xxvi]. Fla. Stat. § 316.066(4) (2014).
[xvii]. Nelson v. Dep’t of Highway Safety & Motor Vehicles, 757 So.2d 1264, 1265 (Fla. Dist. Ct. App. 2000).
[xxviii]. Vedner v. State, 849 So.2d 1207, 1211 (Fla. Dist. Ct. App. 2003).
[xxix]. State v. Norstorm, 613 So.2d 437, 440 (Fla. 1993).
[xxx]. State v. Cino, 931 So.2d 164, 168 (Fla. Dist. Ct. App. 2006).
[xxxi]. State v. Edwards, 463 So.2d 551, 554 (Fla. 5th Dist. Ct. App. 1985).
[xxxii]. Cino, 931 So.2d at 167.
[xxxiii]. Brackin v. Boles, 452 So.2d 540, 544 (Fla. 1984).
[xxxiv]. Id.
[xxxv]. Salama v. McGregor, 656 So.2d 215, 216 (Fla. Dist. Ct. App. 1995).
[xxxvi]. Ill. S. Ct. R. 236(b) (eff. Aug. 1, 1992).
[xxxvii]. People v. Richardson, 362 N.E.2d 1104, 1106 (Ill. App. Ct. 1977).
[xxxviii]. Johnson v. Plodzien, 175 N.E.2d 560, 563 (Ill. App. Ct. 1961).
[xlix]. Smith v. Johnson, 120 N.E.2d 58, 60 (Ill. App. Ct. 1954).
[xl]. Wilkinson v. Mullen, 327 N.E.2d 433, 435 (Ill. Ct. App. 1975).
[xli]. Hall v. Baum Corp., 299 N.E.2d 156, 160 (Ill. Ct. App. 1973).
[xlii]. See George J. Blum, Admissibility in State Court Proceeding of Police Reports as Business Records, 111 A.L.R. 5th 1 (originally published 2003).

Why Do Attorneys Ask Expert Witnesses for an Opinion “to a Reasonable Degree of Certainty”?

Posted On By

written by NITA guest bloggers Iva Čechráková and Michael J. Dale

“Expert, do you have an opinion that you can state with a reasonable degree of certainty?” These are most often the exact words attorneys employ when examining expert witnesses. This also is the form of question the majority of trial advocacy text authors recommend as the appropriate or traditional question when examining an expert witness, but not all of them provide a reason why. Oddly, most authors do not explain why.

The complexity of modern society and the resulting expansion in scientific and other sources of technical knowledge increase the likelihood that expert witnesses will testify when disputes are litigated. When an issue is beyond the knowledge of a lay witness, an expert must be called to testify. The expert’s area of knowledge, governed by the Federal Rules of Evidence, may be based upon education, specialized training, and/or experience[1]. Thus, given this background, the expert can help the trier of fact understand the evidence and determine a fact in issue. Under Federal Rule of Evidence 702, when a qualified expert testifies, the testimony may be in the form of opinion or otherwise if the testimony will be helpful.

Expert witnesses occupy a special place at trial and, thus, advocates must bring all of their skills to the task of properly questioning them. Simply asking the expert whether she has an opinion might arguably be weak advocacy and less persuasive than the traditional method. Many people have opinions. But, many of their opinions may not carry much weight. One author states that “expert opinions are the primary―perhaps the only―reason for calling the expert to testify [. . .] and, thus, their disclosure should be the most dramatic and most heightened portion of the direct[2].” Therefore, the advocate should attract the attention of the jury and “choose words that will unequivocally signal that an important answer is forthcoming[3].”

Therefore, the attorney might use stronger, more compelling phrases to persuade jurors and the judge whenever possible. The commonly used language “to a reasonable degree of scientific certainty” most likely represents such language based on the frequency of its use. What is unclear about this phrase is its meaning and the real legal or evidentiary reason why the advocates phrase the question in this specific way. This article attempts to answer this question.

Some authors describe it as a traditional formula[4]. But what is the source of the current formulation? The early common law required that the expert could provide her opinion only if she was able to say the magical words of the traditional formula[5]. Only such an opinion was admissible. The Federal Rules of Evidence do not adopt that view, and many jurisdictions no longer require it. Many jurisdictions now permit experts to testify to possibilities[6]. However, one might conclude that the traditional formula represents the desired stronger and more persuasive statement because the only requirement once relevance is established is that the expert, like other witnesses, may not speculate or guess[7].

Other authors conclude that this phrase adds nothing of legal significance and is not required by the rules of evidence or case law[8]. Thus, unless the judge requires the traditional formula, some suggest that it is best to avoid it[9]. However, these conclusions do not answer the question of whether there is a jurisprudential and evidentiary reason for its use.

The phrase originated in Chicago prior to 1930 as a unique local usage, but the precise origin cannot be determined[10]. It appears that the phrase was created by the efforts of Illinois attorneys to accommodate two inconsistent rules of evidence that were adopted almost at the same time by the Illinois Supreme Court: the Reasonable Certainty Rule and the Ultimate Issue Rule[11]. The Reasonable Certainty Rule prohibited experts from expressing speculative opinions about damages, and it first acted as a rule of substantive proof to establish future damages. Also, it was interpreted to apply to the admissibility of expert medical opinion when testifying about future illnesses or conditions[12]. On the other hand, the Ultimate Issue Rule prohibited experts from usurping the province of the jury by expressing definitive opinions on the ultimate fact[13]. For these reasons, experts were required to express an opinion with a “reasonable certainty,” but were prohibited from expressing an opinion with a degree of certainty that exceeded the hypothetical[14]. The analysis of Illinois cases is consistent with the hypothesis that the phrase originated through the efforts of attorneys to offset the speculative quality of opinions[15]. The attorneys in Chicago began using the phrase frequently, and Irving Goldstein incorporated it in his 1935 manual, Trial Technique[16]. The phrase quickly found its way into nearly every American jurisdiction without regard to its peculiar local origin[17].

Some jurisdictions incorporated the phrase into legal doctrine and attributed legal significance to the phrase, viewing it as required for purposes of admissibility or as a standard of proof[18]. It “resulted from the judiciary’s uncritical acceptance of attorney’s usage without conscious consideration of its meaning[19].”

Even though this phrase has achieved a certain status, it appears that the phrase lacks a definite and ascertainable meaning. The phrase apparently has different meanings in different jurisdictions and in different contexts, generating substantial confusion among experts, legal professionals, and courts. Some experts suggest that the phrase is a legal term of art meaning “more probable than not”—or a 51 percent probability[20]. Others assume that it means something more than a probability—almost a near absolute certainty[21]. Legal professionals use this phrase, but they have not achieved any consensus as to the meaning of the phrase. Some courts interpret it as a “substantive comment about the likelihood that a proposition is true[22].” A majority of courts equate it with a preponderance of the evidence standard[23]. Courts in some jurisdictions interpret it as more demanding, perhaps even approaching the beyond a reasonable doubt standard[24]. One hint of a solution to the evidentiary standard inconsistency could be the recent decision in United States v. Snider[25], where a federal district court in Oregon noted that the court did not ask the experts whether they could express their opinions to a “reasonable degree of medical certainty,” as the question is usually posed in civil cases as a reference to the preponderance standard because in criminal cases this requirement can create confusion about the burden of proof[26].

This confusion results from the incoherence of the phrase itself. The noun “certainty” implies it is the absolute, while the adjective “reasonable” essentially negates the absolute implication of “certainty[27].” While texts on trial advocacy technique reflect the extensive use of the phrase, neither the texts nor the early reported decisions suggest that the phrase has any legal significance. In none of the opinions did the court indicate that this particular phrase was essential or even helpful[28].

In the 1969 case of Boose v. Digate, an Illinois court declared that an expression of reasonable degree of certainty does not relate to substantive certainty about the likelihood of the future condition, but rather to “the general consensus of recognized medical thought and opinion concerning the probabilities” The phrase simply represented an appropriate locution for introducing substantial evidence. The only reasonable explanation for the spread of this phrase are trial advocacy texts and, most specifically, the Goldstein text, Trial Technique[31]. Prior to its publication, the phrase did not appear in a single opinion outside of Illinois[32]. However, the author did not explain that this phrase represented local usage in Illinois courts. Thus, it is understandable that attorneys throughout the United States, without knowledge of this local custom, would assume that the phrase was essential and required.

Interestingly, based on the National Commission on Forensic Science’s recommendations regarding the Testimony Using the Term “Reasonable Scientific Certainty,” it is certain that the phrase was not initiated by physicians[33]. In its recommendations, the Commission stated that “medical professionals and other scientists do not routinely express opinions or conclusions ‘to a reasonable scientific certainty’ outside of the courts[34].” “Such terms have no scientific meaning and may mislead factfinders when deciding whether guilt has been proved beyond a reasonable doubt[35].” Significantly, the Commission commented that there is no common definition as to what threshold establishes certainty[36].

While use of the phrase has become custom and practice, the modern view recognizes that the term is not required. In People v. Ramirez[37], the Colorado Supreme Court found the phrase outdated and inappropriate for determining the admissibility of expert testimony under the current standard codified in Colorado Rules of Evidence[38]. Thus, the court overruled the cases to the extent they approved this standard[39]. A recent decision in West Virginia, Edwards v. McElliotts Trucking, LLC[40], clarifies that the use of the phrase “by experts in court contributes to false sense of confidence in expert opinion and sows confusion about the ‘objectivity’ of the expert’s process[41].” The court also held that “because the phrase has no relation to scientific inquiry and no stable meaning in the law, resort to it only serves to obscure the reliability of the expert’s opinion[42].” Furthermore, the United States Department of Justice has recommended that its attorneys refrain from its use in court[43].

Nevertheless, courts continue to require some level of certitude by experts. Thus, experts can express opinions that a fact was “more likely than not” or “probably” true, but they cannot base their opinions on a mere “possibility” or “speculation” that a fact “might” or “could” be true[44]. Still, courts in several jurisdictions refer to “reasonable medical certainty or probability” without clarifying whether the terms were meant to be synonymous or to represent distinct alternative criteria[45]. On the other hand, courts in most recent cases have held that the experts are not required to phrase their opinion by using the traditional formula and may convey their testimony in a language, which sufficiently shows and persuades the judge that she reached her own best judgment to a reasonable certainty even if not using these exact words[46].

In conclusion, there is not a consistent definition of what these words mean, and, thus, it does not follow that experts should be required to recognize and express their opinions in that way. There is no clear answer provided by case law or secondary sources that demonstrate whether this phrase equates to “more probable than not standard” or “beyond a reasonable doubt standard.” In addition, the United States District Court for the Southern District of West Virginia stated in the footnote to Edwards v. McElliotts Trucking LLC[47] that “the origin story of the phrase reveals its arbitrary birth, unthinking adoption, and most importantly, its vacuity of meaning. Accordingly, it has no place in the admissibility analysis[48].”

Therefore, if lawyers are to consider continuing to use the phrase “to a reasonable degree of certainty,” they should use it because it is more persuasive, the judge expects it, or it is local practice, but not because there is some jurisprudential basis for its use.

Iva Čechráková is a graduate in law from Charles University, Prague, Czech Republic, and a dual degree graduate of Nova Southeastern University College of Law, where she was until recently a research assistant to Professor Michael J. Dale. She can be reached at ivacechrakova@gmail.com.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.


[1] Fed. R. Evid. 702.
[2] L. TIMOTHY PERRIN, H. MITCHELL CALDWELL & CAROL A. CHASE, THE ART & SCIENCE OF TRIAL ADVOCACY 396 (2003).
[3] Id.
[4] RONALD L. CARLSON & EDWARD J. IMWINKELRIED, DYNAMICS OF TRIAL PRACTICE: PROBLEMS AND MATERIALS 342 (4th ed. 2010); see also DAVID D. MALONE & PAUL J. ZWIER, EFFECTIVE EXPERT TESTIMONY 91 (3rd ed. 2014) (the authors indicate that the counsel should make the presentation of the expert’s opinion dramatic, ask in formal language to call the juror’s attention to it and to assure the judge that the counsel followed the legal formalities because the formal language gives it weight and the terminology “reasonable degree of certainty” is required in almost identical language in many jurisdictions). [Note: However, the authors do not mention any specific rule, case law or the reason for this use.]
[5] CARLSON & IMWINKELRIED, supra note 4, at 342; see also State v. Holt, 246 N.E.2d 365 (Ohio 1969) (holding that “. . . where in answer to question whether, as result of the analysis, he had an opinion ‘based on reasonable scientific certainty as to the’ [. . .], his response was that ‘the samples are similar and are likely to be from the same source,’ such response fell short of the legal requirement of ‘reasonable certainty’ or ‘probability’, so that admission in evidence of such answer over objection constituted prejudicial error.”) [Note: State v. Holt was later negatively impacted by State v. Brenner, 533 N.E.2d 701 (Ohio 1988).]
[6] Dupree v. County of Cook, 677 N.E.2d 1303 (1997); United States v. Davis, 44 M.J. 13, 16 (C.A.A.F. 1996). However, the opinion can be vulnerable to effective cross-examination because the advocate can compel the expert to admit that the opinion is a mere possibility, not a probability or a certainty and may convince the trier of the fact that it is a speculative opinion and the other party does not met its burden of proof.
[7] CARLSON & IMWINKELRIED, supra note 4, at 342.
[8] THOMAS A. MAUET, TRIAL, STRATEGY, SKILLS, AND THE NEW POWER OF PERSUASION 410 (2nd ed. 2009); see also STEVEN LUBET & J.C. LORE, MODERN TRIAL ADVOCACY: ANALYSIS AND PRACTICE 236-37 (5th ed. 2015) (the authors are not expressly saying that the traditional formula is a proper way to ask an expert about her opinion but call for testimony in straightforward, unequivocal terms that emphasizes accuracy and certainty in order to prevent miscommunication and loss of expert’s credibility); see also STEVEN LUBET, EXPERT TESTIMONY: A GUIDE FOR EXPERT WITNESSES AND THE LAWYERS WHO EXAMINE THEM 8 (1998) (the author in the earlier edition of the text emphasizes that in most jurisdictions an expert’s opinion must be stated to a “reasonable degree of certainty” even though he admits that the term is difficult to define may be ambiguous or an oxymoron, and thus, he asks a variety of questions such as, “What is a reasonable degree of certainty?” or “How do you know when you have it?” and answers that most likely the best approach is self-referential; however, he also warns that “reasonable certainty” is merely the minimum level of confidence required for the expression of an opinion in court).
[9] MAUET, supra note 8, at 410.
[10] Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,” 57 MD. L. REV. 380, 381 (1998).
[11] Id. at 406–30.
[12] Id.
[13] Id.
[14] Id. at 410–14.
[15] Philadelphia & Reading Coal & Iron Co. v. Industrial Comm’n, 165 N.E. 161, 162 (Ill. 1929); Armour Grain Co. v. Industrial Comm’n, 153 N.E. 699, 701 (Ill. 1926); Benton Coal Mining Co. v. Industrial Comm’n, 151 N.E. 520, 525 (Ill. 1926) (these three cases represent worker’s compensation cases); Herbst v. Levy, 279 Ill. App. 353, 358 (App. Ct. 1935) (this case evidences that this phrase was used not only in worker’s compensation claims but also in different practices―in this case, the expert witness was asked “whether he could determine with reasonable scientific certainty the cause of the capsizing of the boat”).
[16] Lewin, supra note 10, at 425–54, 456–57.
[17] In Ohio, New York, Arizona, Delaware, Florida, Michigan, Hawaii, California, and Montana, the phrase entered the vocabulary of attorneys with only mild endorsement from the courts. On the other hand, in Washington, Minnesota, Missouri, Wisconsin, Pennsylvania, New Mexico, Tennessee, Oregon, Colorado, and South Carolina, the phrase received a strong endorsement from the courts.
[18] Twin City Plaza, Inc. v. Central Surety & Ins. Corp., 409 F.2d 1195, 1203 (8th Cir. 1969) (holding that if the witness possesses extraordinary training to aid laypersons in determining facts and if he bases his answer upon what he believes to be reasonable scientific or engineering certainty, generally the evidence should be admitted, subject, of course, to the cross-examination of the adversary); Penteluk v. Stark, 244 Minn. 337, 340 (Minn. 1955) (the court incorporated the phrase in its description of the standard of proof of permanent injuries, stating that “the rule is that for a person to recover for permanent injuries it must appear to a reasonable medical certainty that there will be permanent injury”). Later Minnesota courts held that it would be also satisfied by testimony expressed in terms of probability.
[19] Lewin, supra note 10, at 396.
[20] Id. at 402; see also Douglas Danner & Elliot L. Sagall, Medicolegal Causation: A Source of Professional Misunderstanding, 3 AM. J.L. & MED. 303, 305 (1977).
[21] State v. Austin, 368 N.E.2d 59, 61, 66–67 (Ohio Ct. App. 1976).
[22] Lewin, supra note 10, at 403–04.
[23] Dallas v. Burlington N., Inc., 689 P.2d 273, 277 (Mont. 1984); Wheeler v. Central Vt. Med. Ctr., Inc., 582 A.2d 165, 170 (Vt. 1990).
[24] Cf. Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158, 165–67 (Wyo. 1989).
[25] 180 F. Supp. 3d 780, 795, 798 (D. Or. 2016), appeal dismissed (Sept. 7, 2016).
[26] Id.
[27]Edwards v. McElliotts Trucking, LLC, 2017 WL 3611848, at *3, 5 (S.D.W. Va. Aug. 22, 2017) (reference to footnote 2); see also Lewin, supra note 10, at 400–01.
[28] Not until 1937 decision in Shell Petroleum Corp. v. Industrial Commission, 10 N.E.2d 352 (Ill. 1937), where the court attached significance to the failure of a witness to state his opinion with reasonable medical certainty. However, the Court did not provide any reason why it was so crucial to express the opinion in this way or explain the meaning of the phrase.
[29] 246 N.E.2d 50, 53 (Ill. App. Ct. 1969).
[30] Id.
[31] IRVING GOLDSTEIN, TRIAL TECHNIQUE (1935).
[32] Lewin, supra note 10, at 453.
[33] NAT’L COMM’N ON FORENSIC SCI., DEP’T OF JUSTICE, TESTIMONY USING THE TERM “REASONABLE SCIENTIFIC CERTAINTY”, available at https://www.justice.gov/archives/ncfs/page/file/641276/download.
[34] Id.; see also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 590 (1993) (stating that “it would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science”); see also Danner & Sagall, supra note 20, at 308.
[35] NAT’L COMM’N ON FORENSIC SCI., supra note 33.
[36] Id.
[37] 155 P.3d 371, 375–76 (Col. 2007).
[38] Id.
[39] Id.
[40] 2017 WL 3611848, at *3 (S.D.W. Va. Aug. 22, 2017).
[41] Id.; see also NAT’L COMM’N ON FORENSIC SCI., DEP’T OF JUSTICE, RECOMMENDATIONS TO THE ATTORNEY GENERAL REGARDING USE OF THE TERM “REASONABLE SCIENTIFIC CERTAINTY” (Mar. 3, 2016).
[42] Edwards, 2017 WL 3611848, at *4.
[43] Id. at *3; see also Seth Augenstein, DOJ’s Code of Conduct: No More ‘Reasonable Scientific Certainty’ (Sept. 2016) available at https://www.forensicmag.com/article/2016/09/dojs-code-conduct-no-more-reasonable-scientific-certainty.
[44] Lewin, supra note 10, at 462–63.
[45] Holecek v. Janke, 171 N.W.2d 94, 101 (N.D. 1969); State v. Holt, 246 N.E.2d 365 (Ohio 1969); Lane v. State Farm Mut. Auto. Ins. Co., 308 N.W.2d 503, 512–13 (Neb. 1981).
[46] Marpaka v. Patel, 2017 WL 84655, at *2 (N.J. Super. Ct. App. Div. 2017); Aspiazu v. Orgera, 535 A.2d 338, 342 (Conn. 1987); State v. Jarrell, 608 P.2d 218, 230–31 (Utah 1980).
[47] 2017 WL 3611848, at *4, 5 (S.D.W. Va. Aug. 22, 2017).
[48] Id. (reference to footnote 2).

The Legal Significance of Including the Words “If Anything” in a Question at Trial

Posted On By

written by NITA guest bloggers Marina Kunina and Michael J. Dale

Walk into any courtroom in the United States during a trial and one will hear lawyers ask questions like, “What, if anything, happened next?” or “What, if anything, did you do after that?” This article seeks to understand the background, purpose, and place in a modern legal practice of the use of the phrase “if anything” in questioning a witness. It raises the question as to whether the phrase actually has any legal significance.

The historical background for the use of the phrase is not particularly helpful. One of the earliest case in the United States dealing with the effect of the “if anything” phrase is Albatross v. Wayne, 1847 WL 71 (Ohio Dec. 1847) In that case, the Supreme Court of Ohio was asked to determine whether the question “‘What do you know, if anything, of any custom of trade in delivering goods at Memphis by steamboats, different from the usages of other ports on the Mississippi River?’” was “unfair, leading, argumentative, and faulty in effect, if not in form.” The court, affirming the lower court’s overruling of the objection, held that the question was not “fairly liable to any such objection.” Explaining that the question was not susceptible to objection, the Ohio Supreme Court stated that “the witness, if ignorant of the customs of all the places on the river, would have answered negatively, and so the plaintiff would have gained proof from the mere ignorance of the witness against the existence of the special custom sought to be established as a valid custom at the port of Memphis.” The court further held that the question containing the “if anything” phrase “was as far from being leading as anything could be; nor was there anything unfair in it.”

In 1899, the Court of Criminal Appeals of Texas held that a prosecutor was permitted to ask, “If there was any inducement or consideration for the first act of intercourse[,] state what it was.” The Court explained that this type of question, which approximates the “what, if anything” approach, was not erroneous, as “leading or suggestive of the answer.” Harvey v. State, 53 S.W. 102 (Tex. Crim. App. 1899).

In 1855, the Supreme Court of Judicature of New Hampshire was asked to determine whether the plaintiff could introduce his own statement by asking the witness what the plaintiff said to him. The court held that the plaintiff could not introduce the statement at issue in his own way. The court said, however, that a party might ask his witness what, if anything, was said by him that induced him to take notice of what occurred. Wiggin v. Plumer, 31 N.H. 251, 271 (1855). Here, the court seemed to explain how particular wording can avoid a question to be susceptible to a hearsay objection.

In Prickett v. Sulzberger & Sons Co., 57 Okla. 567, 157 P. 356 (1916), the Supreme Court of Oklahoma, dealing with the issue of whether the administrator could introduce the deceased’s statement made to the eyewitness of the fatal incident, found prejudicial error in not allowing the question “‘[W]hat, if anything, did [the deceased] say about the elevator just before he stepped? What, if anything, was said by you and by him in reference to the elevator just as he was stepping off the bridge?’” as calling for a hearsay. Thus, the “what, if anything” phrase did not cure the hearsay.

In Nickell v. State, 205 Wis. 514, 238 N.W. 508 (1931), the Supreme Court of Wisconsin held that the question “[w]hat, if anything, did the defendant . . . say about treating or healing headaches?” was not objectionable as leading. Therefore, older case law, while recognizing the use of the phrase, does not offer much guidance about the justification for its use. Contemporary jurisprudence still uses the “if anything” phrase as, for want of a better term, a trick to rebut a leading objection. Although introductory “if anything” may sometimes correct the leading question, in the present case the question can still remain “leading and may objectionable if it improperly suggests ‘treating’ or ‘healing’ or even ‘headaches,’ or if it is disputed that the defendant said anything on those subjects.” § 27:7, Leading questions, 23 MINN. PRAC., TRIAL HANDBOOK FOR MINN. LAWYERS § 27:7 (2017–2018 ed.).

Morphologically, or form-wise, “if anything” can be regarded as a connective incorporated into the question “to prompt and guide the witness in telling his story.” In a practical sense, “if anything” phrases are utilized as the witness’s “go ahead” signal. When the witness stops testifying because of uncertainty of the appropriateness of proceeding with his answer, “if anything” “[c]onnectives help to lead the witness over such troublesome situations without being subject to [leading] objection.” § 11:37, Connectives, 2 LANE GOLDSTEIN TRIAL TECHNIQUE § 11:37 (3d ed.).

Similarly, when the question “When did you stop beating your wife?” assumes that the witness did, in fact, beat his wife and is not permissible, the question “What did the defendant do to you, if anything?” according to one writer, would be proper as not assuming anything and not being leading. Michael Catalano, 6 AM. JUR. TRIALS 605 (originally published in 1967). The authors suggest that the practical application of the “if anything” phrase may also be an effort to avoid the assuming facts not in evidence objection.

Despite the fact that historically some courts have approved “if anything” questions as not being leading, it certainly can be argued use of the phrase does not solve the problem. It has been argued that such questions tend to suggest to the witness that a positive response should be given. For instance, the question “What did you say to him, if anything?” suggests that the witness, in fact, said something to the person. Stephen E. Arthur, Leading questions; hostile witnesses, 22A IND. PRAC., CIVIL TRIAL PRACTICE § 30.20 (2d ed.).

The extreme directedness of a question can be minimalized by using “a less leading way of getting the same information available.” A leading National Institute for Trial Advocacy instructor has argued that the desired answer to an “if anything” question is not regarded as leading and, hence, would not be objectionable while producing almost the same effect as an aggressive suggestive question. Frederick C. Moss, Beyond the Fringe: Apocryphal Rules of Evidence in Texas, 43 BAYLOR L. REV. 701, 744 (1991).

It is also suggested that including the “if anything” phrase in a question may help to avoid the prejudicial effect of the testimony and even prevent some constitutional violations. For example, in State v. Underwood, 281 N.W.2d 337, 338 (Minn. 1979), the Minnesota Supreme Court found the responses by a prosecution witness to a question “Did you talk to him [defendant] any after you got back to Owatonna?” constituted comments on the defendant’s constitutional right to remain silent and, hence, were prejudicial even though elicited by defendant’s counsel on cross-examination. In absence of the appropriate defense attorney’s objection, the prejudicial effect of the testimony could have been reduced by asking, “What, if anything, did the defendant say?” § 5042 Insulating The Jury From Inadmissible Evidence, 21 FED. PRAC. & PROC. EVID. § 5042 (2d ed.).

“If anything” also is thought to be a useful tool for a redirect examination. As the scope of redirect examination is strictly limited to the scope of cross-examination, it is usually hard for the examiner to effectively develop the testimony on redirect examination, because leading questions are not generally permitted. To reduce the objectionable effect of a leading question to get at the desirable information, the “if anything” technique is widely utilized, especially where a leading question seeks to incorporate particular factual matters by refutation in the form of a denial or affirmation. § 611:12 Redirect and recross examination, WINNING EVIDENCE ARGUMENTS § 611:12.

It is obvious that hearsay objections cannot easily be eliminated by use of “if anything” in a question. For example, the question “What, if anything, did you see the officer do next?” itself may not be objectionable due to the wording used. However, the examiner cannot fully control the witness’s response, and the answer “The officer came into my store and said . . .” will still be impermissible hearsay and the objection made must be sustained. § 13:50, Hearsay, 3 LANE GOLDSTEIN TRIAL TECHNIQUE § 13:50 (3d ed.).

And finally, the “If anything” phrase is also not helpful to rebut the hearsay objection against so-called “implied hearsay,” when, although visibly not calling for a hearsay and not being leading, the “if anything” question calls for an answer that does not have any relevance except as to show what one witness said to another witness. David F. Binder, HEARSAY IN A NUTSHELL, VERDICTS, SETTLEMENTS AND TACTICS 360, 362 (1989). See Com. v. Farris, 251 Pa. Super. 277, 280, 380 A.2d 486 (1977).

In conclusion, research suggests that the phrase “if anything” is used to avoid leading questions and assuming facts not in evidence, to guide the witness, and improbably to avoid hearsay. Oddly, there are few reported opinions on the subject, and the commentary in practitioner guides seems conclusory. If the phrase “if anything” is necessary to avoid a leading objection, does that mean that multiple, otherwise open-ended questions will require use of the phrase or something like it? For example, lawyers will have to ask “What, if anything, happened next?” or “Where did you go, if anywhere, after that?” The question then to ask is whether the questions are really leading without use of the phrase. The question can also be asked in the context of the objection assuming facts not in evidence. Does the “if anything” phrase cure the facts coming first from the mouth of the attorney? The authors suggest that the phrase should be abandoned because it does not solve any of the problems it seeks to address, except perhaps to help the witness understand the question. The phrase just seems to be a traditional question filler.

Marina Kunina is a Russian attorney and May 2018 graduate of Nova Southeastern University Shepard Broad College of Law, Fort Lauderdale, Florida. She was a research assistant to Professor Michael J. Dale.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985. He teaches regularly for the National Institute for Trial Advocacy. He can be reached at dalem@nova.edu. If you’d like to know more Professor Dale, please read his “Asked and Answered” interview with The Legal Advocate here.

To read more articles by Professor Dale’s research assistants at Nova Southeastern, click here.

Service of Process Outside the United States Updated: Water Splash and its Progeny

Posted On By

written by NITA guest blogger Tereza Horáková

On May 22, 2017, one year after publication of our blog post[1] on how to serve process outside the United States, the United States Supreme Court resolved a conflict among the lower courts concerning an important practical service question: Does the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter the Hague Convention) prohibit service by mail under Article 10(a)? In Water Splash, Inc. v. Menon, the Supreme Court held that the Hague Convention indeed does not prohibit service by postal channels[2]. This note provides a brief analysis of the Supreme Court decision and an overview of the case law that followed.

Water Splash, Inc. sued its former employee, Tara Menon, in a state court in Texas, alleging that Ms. Menon had begun working for a competitor while still employed with Water Splash, Inc. Ms. Menon resided in Canada at the time, and Water Splash, Inc. effectuated service by mail after obtaining permission to do so from the trial court. Eventually, the trial court entered a default judgment for Water Splash, Inc. due to Ms. Menon’s refusal to answer or otherwise enter an appearance. Ms. Menon moved to set aside the default judgment, arguing that she had not been properly served. The trial court denied Ms. Menon’s motion, only to be overturned on appeal. After the Texas Supreme Court denied discretionary review, the United States Supreme Court granted certiorari to resolve a broader conflict among lower courts turning on the interpretation of the Hague Convention.

The Supreme Court first analyzed the key language of Article 10(a) of the Hague Convention, which states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Ms. Menon argued that because subsection (a) uses the word “send” as opposed to expressly referring to service as in subsections (b) and (c) of Article 10, this textual difference implies that sending documents through postal channels does not equal service. The Supreme Court rejected this argument as having no foundation in the text of the treaty or anywhere else.

First, the Supreme Court noted that the scope of the Hague Convention is limited to service of documents and Ms. Menon’s interpretation would render Article 10(a) meaningless, which goes against fundamental principles of contract interpretation. Second, treaty interpretation must consider the context in which a particular treaty provision is used. The structural placement of Article 10(a) strongly suggests that it pertains to service of process, considering that the immediately following subsections (b) and (c) expressly refer to “service of judicial documents.” Last, the Supreme Court considered extratextual sources shedding light on the meaning of Article 10(a). The Hague Convention’s drafting history, the views of the Executive, and the views of many other signatory countries such as Canada, Italy, and United Kingdom all concluded that the Hague Convention allows service via postal channels.

However, the Supreme Court’s unanimous decision authored by Justice Alito also cautioned that neither does the Hague Convention affirmatively authorize it[3]. In fact, the Hague Convention permits service by mail only if two conditions are met: 1) the receiving state has not objected to service by mail, and 2) service by mail is authorized under otherwise-applicable law[4]. For affirmative authorization of service by mail and any requirements as to how that service is to be accomplished, one must look to the law of the forum in which the suit is filed[5].

Several courts have already cited Water Splash and utilized its holding. For example, the technical differentiation between permission and affirmative authorization under the Hague Convention proved fatal to the plaintiff in Fed. Ins. Co. v. Cessna Aircraft Co[6]. In that case, the plaintiff argued that it properly served the defendant by international mail pursuant to Fed.R.Civ.P. 4(f)(1) and (2). Rule 4(f)(1) provides for service by an internationally agreed means of service, “such as those authorized by the Hague Convention” (emphasis added). However, Water Splash held that the Hague Convention does not affirmatively authorize service by postal channels, but merely permits it only if the otherwise-applicable law authorizes it. Accordingly, the district court held that plaintiff had not effectuated service under Rule 4(f)(1), because the plaintiff served the defendant by means not authorized by the Hague Convention, but merely permitted by it[7]. The district court then analyzed whether the plaintiff served the defendant under Rule 4(f)(2), which applies there is no internationally agreed means, or an international agreement allows but does not specify other means (as here under the Hague Convention); however, the plaintiff failed to comply with the requirements of Rule 4(f)(2) as well.

In Moore v. Toyota Motor Corp[8]., the defendant was not properly served because the plaintiff did not comply with the second prong of the test for service by mail under the Hague Convention—i.e., that service by mail is authorized by otherwise-applicable law. Specifically, the plaintiff attempted to serve the defendant in Japan by regular international mail via United States Postal Service without a proof of delivery on the recipient. However, no provision of the Federal Rules of Civil Procedure affirmatively authorizes service in a foreign country by regular mail without a proof of delivery. Therefore, the district court found that the plaintiff failed to properly serve the defendant.

In a similar case, In Re LLS Am., LLC[9], the plaintiff served the defendant via the clerk of court, who certified “that a copy of the Summons and Complaint was mailed by international registered mail with Returned Receipt for International Mail” to both defendants. This method of service is affirmatively authorized under Fed.R.Civ.P. 4(f)(2)(C)(ii) and, therefore, the district court found that the plaintiff properly served the defendant via postal channels under the Hague Convention.

In conclusion, the Supreme Court has made clear that the Hague Convention does not prohibit service of process by mail. However, as the progeny of Water Splash has shown, one must be cautious to comply with the two-prong test for service of process under the Hague Convention as set out in Water Splash.

Tereza Horáková is an attorney in Miami, where she practices commercial litigation, probate administration and litigation, and estate planning. Ms. Horáková graduated from Nova Southeastern University, College of Law, and Charles University Faculty of Law in Prague, Czech Republic. While at Nova, Ms. Horáková was a research assistant to Professor Michael J. Dale, whom she thanks for his review of this article. She can be reached at tereza@hotmail.cz.


[1] “Service of Process Outside the United States: A Basic Overview,” by Tereza Horáková and Michael J. Dale, posted on March 23, 2016. Available at http://blog.nita.org/2016/03/service-process-outside-united-states-basic-overview/.
[2] While the Hague Convention does not define the term postal channels, the case law generally construes the term to mean postal mail, such as the United States Postal Service. However, the Hague Convention does not define what type of mail qualifies as use of postal channels. A Special Commission of the Convention stated in 2003 that service through private courier is the equivalent of service through postal channels (see Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, at ¶ 56 (Oct. 28–Nov. 4, 2003)).
[3] Justice Gorsuch took no part in the consideration or decision of the case.
[4] The countries that have objected to the service of process via postal channels include, among others, the Czech Republic, Germany, and Argentina.
[5] Brockmeyer v. May, 383 F.3d 798, 803–04 (9th Cir. 2004) (“Article 10(a) does not itself affirmatively authorize international mail service. It merely provides that the Hague Convention “shall not interfere with” the “freedom” to use postal channels if the “State of destination” does not object to their use. As the Rapporteur for the Convention wrote in explaining Article 10(a), “It should be stressed that in permitting the utilization of postal channels, . . . the draft convention did not intend to pass on the validity of this mode of transmission under the law of the forum state: in order for the postal channel to be utilized, it is necessary that it be authorized by the law of the forum state.”)). The Supreme Court cited Brockmeyer in Water Splash, 137 S. Ct. at 1513 (2017).
[6] Fed. Ins. Co. v. Cessna Aircraft Co., 2017 WL 2905576 (D. Kan. July 7, 2017).
[7] The United States District Court for the District of New Jersey has reached the same conclusion in an unpublished opinion in Trzaska v. L’Oreal USA, Inc., 2017 WL 6337185 (D.N.J. Dec. 12, 2017), where the plaintiff unsuccessfully attempted to effectuate service under Rule 4(f)(1) by mailing a copy of the summons and complaint by way of the United States Postal Service’s “Priority Mail Express International.”
[8] Moore v. Toyota Motor Corp., 2017 WL 5257050 (E.D. La. Nov. 13, 2017).
[9] In Re LLS Am., LLC, 2017 WL 3013260 (E.D. Wash. July 14, 2017).

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
Feature Products