TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206

Washington, D.C. 20005

(202) 628-4888

contracts@hrccourtreporters.com

IN THE MATTER OF: )

 )

PROPOSED AMENDMENTS TO THE )

FEDERAL RULES OF EVIDENCE )

 )

Pages: 1 through 45

Place: Washington, D.C.

Date: January 27, 2023
1 

Heritage Reporting Corporation 

(202) 628-4888 

 ADMINISTRATIVE OFFICE OF THE U.S. COURTS 

IN THE MATTER OF: ) 

 ) 

PROPOSED AMENDMENTS TO THE ) 

FEDERAL RULES OF EVIDENCE ) 

 ) 

Suite 206 

Heritage Reporting 

Corporation 

1220 L Street, N.W. 

Washington, D.C. 

Friday, 

January 27, 2023 

The parties met remotely, pursuant to the notice, 

at 9:00 a.m. 

Committee Members: 

HON. PATRICK J. SCHILTZ 

PROF. DANIEL J. CAPRA 

HON. JOHN D. BATES 

HON. ROBERT J. CONRAD, JR. 

JAMES P. COONEY, III, ESQ. 

HON. SHELLY DICK 

HON. M. HANNAH LAUCK 

HON. MARK S. MASSA 

MARSHALL L. MILLER, ESQ. 

PROF. LIESA RICHTER 

HON. THOMAS D. SCHROEDER 

ARUN SUBRAMANIAN, ESQ. 

HON. RICHARD J. SULLIVAN 

PROF. CATHERINE STRUVE 

RENE L. VALADARES, ESQ. 

Witnesses: 

RYAN BABCOCK, The Babcock Law Firm, P.C. 

MARK LANIER, Lanier Law Firm 

WILLIAM ROSSBACH, Rossbach Law Firm 

BRIAN SANFORD, Sanford Firm 

TAD THOMAS, Thomas Law Offices 

TIEGA-NOEL VARLACK, Varlack Legal Services 
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1 P R O C E E D I N G S 

2 (9:00 a.m.) 

3 JUDGE SCHILTZ: All right. Good morning, 

4 everyone. I think we’ll get started. This is a 

5 hearing sponsored by the Advisory Committee on the 

6 Federal Rules of Evidence on the proposed amendments 

7 that have been published for comment and, in 

8 particular, on the proposal to add a new subsection 

9 (d) to Rule 611 to govern illustrative aids. 

10 We have a number of witnesses to testify. 

11 I’m sorry about the early starting time of this. I’m 

12 in trial this week, and I wanted to be able to hold 

13 this hearing and still get into trial, not delay my 

14 trial. 

15 So, the first witness on the list is Mr. 

16 Ryan Babcock. Mr. Babcock, are you there? 

17 MR. BABCOCK: Yes, I’m here. 

18 JUDGE SCHILTZ: Good morning. We'd be happy 

19 to hear from you. 

20 MR. BABCOCK: Okay. Thank you so much. 

21 Good morning, Mr. Chairman and Members of 

22 the Committee. Thank you for the opportunity to 

23 testify regarding the proposed amendments to Rule 611. 

24 I represent plaintiffs in injury cases, and before 

25 starting my own firm, I defended such cases and worked 
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1 as a federal judicial law clerk for several years.

2 The use of visual aids at trial assists with 

3 effective advocacy and it ultimately aids the truth4 finding function of the jury, which the current Rule 

5 611 recognizes as a prime consideration of the trial 

6 process.

7 I start from the position that trials should 

8 be a user-friendly process for the jury, and they have 

9 a difficult job to do. They play a crucial role in 

10 the justice system and society, and expert testimony 

11 especially can be boring or difficulty for a lay jury 

12 to follow.

13 It’s crucial that we keep our jurors 

14 engaged. Advocates use visual aids based on the 

15 belief that many jurors will have a better recall of 

16 key facts when deliberating if the evidence is 

17 presented using additional methods of presentation 

18 apart from oral testimony. That can include the use 

19 of all senses, for example, the physical touch of an 

20 anatomical model or an injured body part of the 

21 plaintiff.

22 As a threshold matter, the rule, in my view, 

23 will likely create confusion as it does not define the 

24 term "illustrative aid," and it’s a term that would 

25 prove difficult to define or describe comprehensively.
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1 Now, with respect to the notice provision, 

2 I’m concerned that it would prove unworkable in 

3 practice. Trials are dynamic, and many visuals may 

4 not be prepared a great deal of time in advance. 

5 There may be unexpected events at trial based on the 

6 statements or conduct of any number of participants 

7 that might suggest a visual aid to use at trial that 

8 would be beneficial to employ.

9 As I read it, the proposed rule would act as 

10 a prior restraint on the contemporaneous use of a flip 

11 chart during trial, which I would view as a step 

12 backward for jury understanding in trial practice and 

13 a rule change that would undo generations of prior 

14 acceptable trial conduct.

15 We know that teachers write important 

16 concepts on the blackboard, and trial lawyers 

17 sometimes emulate that practice during trial. They 

18 understand it will help jurors remember those ideas.

19 Likewise, I’ve had the experience of 

20 preparing a PowerPoint presentation to be used during 

21 closing to help illustrate my argument. When I do so, 

22 I can guarantee that my draft will substantially 

23 change during the trial and I will add key slides late 

24 the night before or early the morning of closing 

25 argument. The proposed rule would make it difficult, 
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1 if not impossible, to use that technology to help make 

2 such presentations at trial.

3 Further, at least in some courts, I believe 

4 it’s unclear to what extent materials used for 

5 impeachment must be disclosed pretrial as exhibits.

6 In a federal criminal trial where I was 

7 appointed to represent a defendant, I made the 

8 strategic decision to not use a document as an 

9 exhibit, and without prior disclosure to the federal 

10 government, I used a printout of a cooperating 

11 witness's Facebook posts in an effort to impeach his 

12 testimony. I did not move to admit the same into 

13 evidence because I was happy to use the document 

14 solely for demonstrative purposes as a matter of trial 

15 strategy. I’m concerned the proposed rule as drafted 

16 could interfere with the ability to make such 

17 strategic decisions.

18 Regarding the admissibility of illustrative 

19 aids, I would submit that certain types of visuals 

20 would routinely be admissible and considered by the 

21 jury during deliberations, including many photographs, 

22 for example. You know whether those visuals are 

23 actually offered into evidence should be within the 

24 discretion of counsel and whether they’re admitted 

25 within the sound discretion of the trial judge.
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1 In a past car wreck trial, for example, I’ve 

2 offered into evidence photographs of the wrecked 

3 vehicles after the crash, but I may only show a 

4 photograph of the plaintiff lifting her young child at 

5 the playground to help illustrate testimony that she 

6 could no longer do such important daily activities 

7 like that after the crash. I would not offer a 

8 photograph like that or similar photographs into 

9 evidence simply as a matter of strategy, and I’m 

10 concerned the proposed rule would foreclose that 

11 approach.

12 Finally, when examining an expert, I have on 

13 occasion written key phrases from an expert’s 

14 testimony on a flip chart during the testimony. I 

15 might return to that paper as an illustrative aid 

16 during closing to remind the jury of what I view as 

17 important testimony in the case, but I don’t believe 

18 that paper ought to be or need be routinely admitted 

19 into evidence or go back with the jury.

20 For these reasons, I oppose the adoption of 

21 the proposed amendment. Thank you very much.

22 JUDGE SCHILTZ: Thank you, Mr. Babcock. 

23 Does either Professor Capra or any member of 

24 the Committee have any questions for Mr. Babcock?

25 (No response.)
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1 JUDGE SCHILTZ: All right. Seeing if you do

2 have any questions today, I’ll need you to turn your 

3 camera on and either raise your hand or put your 

4 little thumb up, but I don’t see any right now.

5 So, Mr. Babcock, thank you. We appreciate 

6 your testimony.

7 MR. BABCOCK: Thank you very much.

8 JUDGE SCHILTZ: Let’s see. The next witness 

9 is Mark Lanier. Mr. Lanier, are you with us? There 

10 you are. Good morning, sir.

11 MR. LANIER: Good morning. I want to thank 

12 also the Committee not just for the chance to appear 

13 but thank you all for your hard work. I don’t think 

14 any of you get paid extra for doing this, but it makes 

15 our world a better place and our courtrooms a better 

16 forum for seeking justice, and that’s really what 

17 we’re about.

18 One of the things that has evolved in my 

19 life of 38 years of doing this is the opportunity for 

20 some of the cases to become a little more complex, and 

21 most of everything I’ve got to say I put in writing to 

22 you all. I know you all are diligent. You’ve looked 

23 at that. I don’t see a need to repeat what I put into 

24 writing, and I won’t waste your time with that. I’ll 

25 simply direct you to my comments and those of many 
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1 others. Professor Bailey’s comments I thought 

2 especially astute.

3 But I do have a concern here, and my concern 

4 is rooted in 611. I have looked also at the other 

5 rules that you’re looking to change, Rule 1006. 1006 

6 summaries, to me, are a much different ball of wax and 

7 they need to be done carefully. They’re important. 

8 Those are summaries. When I tried the opioid case in 

9 front of Judge Polster last year, one of our big 

10 problems was how do you get the prescription data into 

11 a form that can go in front of the jury when all it is 

12 is ones and zeroes of computer data.

13 Well, we need 1006 summaries. Those have 

14 got to be explored by both sides. They’ve got to be 

15 right. They’ve got to be carefully done and approved 

16 by the court ahead of time. But 611, the way it’s 

17 been written, especially with the Summary Draft 

18 Committee notes, I think runs very dangerous of taking 

19 the jury trial backwards instead of forwards.

20 And here’s what I mean. We do recognize now 

21 with neuroscience, functional MRIs, there’s just 

22 replete knowledge of how our brains are wired to 

23 understand things by metaphors, by anchoring to other 

24 concepts. We know by visuals that we see. That’s 

25 more and more true with the internet generation that’s 
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1 now populating our juries.

2 And so it is critical as a trial lawyer to 

3 be able to put things visually for people to see. 

4 Some of that can be shown ahead of time because it’s 

5 right and proper to do so. I think we always show our 

6 opening PowerPoints to the other side and expect them 

7 to do the same with plenty of time to object. But 

8 some of those are spontaneous, and some of those, even 

9 if planned ahead of time, are trial-strategic. I’ll 

10 give you two examples and then sum up.

11 Example Number 1, I will very often in 

12 cross-examination of a witness have three or four or 

13 five questions written out where the question is very 

14 clear and can be read along while I ask it. I can put 

15 that question on the projection device, ELMO, IPEVO, 

16 Wolf, Vision, whatever kind it is. I can put that 

17 down so that the jury can read that question while I’m 

18 asking that question.

19 And it’s got a great power at forcing a 

20 witness to answer a question. I do it especially with 

21 those witnesses that have proved themselves adept at 

22 dodging a question and rambling on and on and on. So 

23 I will have that. I’ll know that witness from another 

24 trial or I’ll know that witness from a deposition, and 

25 I’ve got that ability. 
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1 Now, if I’ve got to give that up before 

2 trial or before that witness takes the stand such that 

3 the other side's got a chance to woodshed and prepare 

4 that witness, that’s not truth-seeking. That’s not 

5 the American way as far as the judicial system and 

6 trials should be going.

7 A second example, though, are demonstrations 

8 that arise. I’ve tried cases where a witness is on 

9 the stand and the witness is trying to explain 

10 something. And I’m able to explain it better if I 

11 take two of the cups that are right there on the 

12 counsel table next to the water pitcher and I take 

13 those cups, and in one of them, I’ll start putting 

14 paper clips because I’ve got them nearby. In the 

15 other one, I’m putting binder clips because I’ve got 

16 them nearby. And I’m comparing the amounts that go 

17 into each one and using it as an illustration.

18 That’s an illustrative aid. And these are 

19 the illustrative aids that not only we have the rule 

20 to worry about, but the Advisory Committee notes that 

21 you all put out with those rules last August 

22 specifically include in the rule blackboard drawings, 

23 photos, diagrams, charts, et cetera. Those types of 

24 illustrative aids that are spontaneously drawn that 

25 are notes made or that are used for strategic purposes 
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1 should be encouraged, not discouraged.

2 That’s my two cents' worth, but I say it 

3 with gratitude in my heart that you guys are trying to 

4 all make this a better format for truth and justice 

5 and for educating juries so that they make informed 

6 decisions. I’ve spoken my piece and thank you.

7 JUDGE SCHILTZ: Thank you, Mr. Lanier.

8 Let’s see, Judge Conrad, you had a question? 

9 You need to turn on your mic. You need to turn on 

10 your mic. You’re muted.

11 JUDGE CONRAD: I’m a high-tech judge. I see 

12 you’re in your home library today.

13 JUDGE SCHILTZ: It’s not as impressive as 

14 yours if that is, in fact, your library behind you.

15 JUDGE CONRAD: You recognize some form of 

16 illustrative aid or demonstrative aid, such as those 

17 being used in opening statement, that ought to get 

18 prior approval from the court before you use, and then 

19 you talk about illustrative aids that are 

20 spontaneously created during the trial process. 

21 Do you have any suggestion as to how the 

22 rule could distinguish between the two so that there 

23 is judicial approval of the things that ought to be 

24 shown ahead of time versus what you think are the 

25 cross-examiner’s prerogative during trial?
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1 MR. LANIER: Judge Conrad, I thought long 

2 and hard about that because I recognize that some 

3 language needs to be put in there that takes care of 

4 this, and, candidly, I don’t have that, that silver 

5 bullet right now. I will submit -- I will try hard to 

6 script some better language and submit it subsequent 

7 to this in a post-haste manner.

8 I would add that, you know, it’s interesting 

9 on opening PowerPoints, for example. Right now, every 

10 judge I’ve ever appeared in front of literally coast 

11 to coast, north to south, has put out there the 

12 question, do you want to give your opening PowerPoints

13 to each other? I always do if I’m the plaintiff 

14 because I’d love to see what the defendants are going 

15 to argue because it will shape my opening knowing 

16 what’s coming up afterwards. Usually, the defendants 

17 do not want to share the opening PowerPoint because 

18 they don’t want me to do that.

19 It’s an interesting twist of how that goes. 

20 And my view ultimately is I don’t care. I’ll share 

21 them. I’ll not share them. To me, openings need to 

22 be carefully sculpted. We have motions in limine to 

23 protect openings, and all of that’s appropriate.

24 I just get nervous about cross-examination 

25 especially and direct examination and the aids that 
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1 can be used there. Closings, that’s also a problem, 

2 as the previous witness discussed. But, again, I 

3 don’t mind showing my closing slides beforehand. I’m 

4 not into hide-the-ball, but I am also not into letting 

5 a trial be scripted or inhibiting the lawyer’s ability 

6 to educate a jury in real time without shutting down 

7 the efficiency of the trial.

8 JUDGE SCHILTZ: Thank you.

9 Any more questions for Mr. Lanier?

10 (No response.)

11 JUDGE SCHILTZ: I don’t see any. Thank you, 

12 Mr. Lanier. We appreciate your testimony today.

13 MR. LANIER: Yes, sir.

14 JUDGE SCHILTZ: Next is William Rossbach. 

15 Mr. Rossbach, I see you there. Good morning, sir. 

16 Thank you for joining us.

17 MR. ROSSBACH: Thank you. Good morning, 

18 members of the Committee and Professor Capra. Thank 

19 you for giving me the opportunity to comment on the 

20 proposed amendments to Rule 611. 

21 I’ve been a trial lawyer for 40 years and 

22 have collectively months in courtrooms across the West 

23 trying scientific, engineering, environmental, and 

24 medical cases. My comments here focus on some very 

25 small changes in the language that will have subtle 
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1 but important consequences in the critical use of 

2 illustrative aids.

3 There are two facts of trial life that are 

4 the foundation of my testimony, and I think both of 

5 the prior witnesses touch on this. First, trial 

6 judges have ample inherent authority to manage the use 

7 of illustrative aids with the unquestioned discretion 

8 to prohibit or limit their use when prejudice 

9 outweighs their value to the finder of fact. Trial 

10 judges certainly have the authority and have used such 

11 authority for a century at least to determine when a 

12 particular illustrative aid must be evaluated in 

13 advance and whether and how it can be used.

14 With questions of admissibility of probative 

15 evidence, documents or testimony during trial, upon 

16 objection, the trial judge must often make immediate 

17 decisions whether to sustain or overrule objection to 

18 probative evidence in order to prevent unfair 

19 prejudice. If for any reason more time is needed to 

20 evaluate the evidence, the trial judge has the tools 

21 she needs to do that before admitting the evidence.

22 I submit that there is really no difference 

23 in procedure or inherent authority for a trial judge 

24 between admitting an illustrative aid and admitting a, 

25 a probative evidence. They often have to make 
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1 immediate decisions and have in tools inherent 

2 authority to make sure that that evidence is evaluated 

3 in advance if needed.

4 Second, while trial lawyers want to script 

5 their trials like a play in which they are the emcee, 

6 that never happens. You can never totally anticipate 

7 every statement that might come out or every piece of 

8 evidence that might come in.

9 A fundamental and critical skill of a trial 

10 lawyer is to think on our feet, to be able to respond 

11 spontaneously to those surprises and ad lib as it 

12 were, often by use of illustrative aids that you have 

13 to come up with spontaneously and create them live in 

14 the courtroom. There is no way that such aids can be 

15 reviewed in advance, but that does not mean the judge 

16 and counsel cannot prevent or manage their use if it 

17 is unfair prejudice.

18 The use of a variety of illustrative aids 

19 mentioned in the Committee note and some of the 

20 comments filed here is not something that is exclusive 

21 to either plaintiff lawyers or defense lawyers. Both 

22 plaintiff and defense lawyers use them in similar 

23 ways. Both use many now that were unheard of when I 

24 started practice. But the same discretionary 

25 authority and tools used when I started are available 
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1 and sufficient today to the trial judge.

2 With these principles and facts of trial 

3 life in mind, let me turn to a few subtle changes that 

4 I think would have important and valuable consequences 

5 for lawyers from opposing sides of the case.

6 As described in the Committee note to these 

7 amendments, the proposed rule is modeled on Maine 

8 Evidence Rule 616. I’m going to use Maine Rule 616 

9 and compare it to the proposed rule today to point out 

10 that there are differences in the language of Proposed 

11 Rule 611 that create big differences in how and when 

12 trial courts will have to evaluate illustrative aids.

13 In effect, the Proposed Rule 611 imposes 

14 added burdens on the party seeking to use illustrative 

15 aids and reverses the procedures that are imposed on 

16 them. Maine Rule 616 implies and assumes that 

17 illustrative aids can be used essentially per se. The 

18 languages doesn’t reference the court at all in the 

19 first sentence of -- first paragraph or section of 

20 that Maine rule. It says simply, "Otherwise 

21 inadmissible objects or depictions may be used to 

22 illustrate witness testimony or counsel’s arguments."

23 In contrast, Rule 611 makes the court a 

24 preliminary gatekeeper to limit or prohibit use. The 

25 first language there is "the court may allow." While 
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1 this may seem minor, the consequences could well be 

2 major depending on how courts interpret it, and this 

3 shift is unnecessary.

4 I urge the court to consider removal of that 

5 first word and let me suggest an amendment. Instead 

6 of saying, "A court may allow a party to present an 

7 illustrative aid," I see, I think, and I urge the 

8 court, the Committee to consider language instead that 

9 says, "A party may present an illustrative aid to help 

10 the finder of fact understand evidence." And then it 

11 provides the limitation if it's a utility in 

12 assisting, et cetera.

13 In other words, take out, "the court" in the 

14 first sentence, "the court as a gatekeeper." The 

15 court is always a gatekeeper, and the language there 

16 shows how it is. But Rule 616 in Maine basically 

17 makes the admission of illustrative aid assumed unless 

18 it is unfair prejudice. 

19 The second amendment that I urge the court 

20 to consider is the requirement, and Judge Conrad 

21 brought this up, and let me make a suggestion. Rule 

22 16 only requires advance opportunity to object if the 

23 aid is prepared before trial. I think this is a very 

24 practical, sensible, and easily enforceable 

25 requirement and does not prohibit or limit traditional 
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1 use in the courtroom of spontaneous illustrative aids 

2 that could not have been anticipated or created in 

3 advance.

4 By removing the -- by putting the limitation 

5 on advance evaluation to those that are created before 

6 trial, it creates an easily enforceable process that, 

7 as Mr. Lanier and Mr. Babcock both suggested, those 

8 kinds of exhibits can be shared, can be evaluated in 

9 advance.

10 Exhibits that -- illustrative aids that are 

11 created on the fly in the courtroom cannot be 

12 evaluated in advance, but the court, just like 

13 evaluating testimony that’s coming in live, can 

14 evaluate a flip chart, a blackboard, or something 

15 similar to that as it comes in live.

16 Finally, my last comment is I very much 

17 commend the Committee on using the term "illustrative 

18 aids" instead of demonstrative exhibits. I think that 

19 is a very important distinction.

20 However, I urge the court to consider -- I 

21 urge the Committee to consider using a definition. 

22 The agenda book says that the rule sets forth a 

23 distinction between illustrative aids and 

24 demonstrative exhibits. But I don’t see that in the 

25 language.
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1 I suggest that the court -- excuse me -- the 

2 Committee look at how illustrative aids, how 

3 demonstrative evidence, how probative evidence, how 

4 those words are used otherwise in the Rules of 

5 Procedure or the Rules of Evidence and come up with a 

6 definition of "illustrative aids" that can be used 

7 throughout the rules and one that makes clear what the 

8 difference between regular probative evidence, 

9 testimony, exhibits, et cetera, and illustrative aids 

10 so that courts having to make these decisions know 

11 which ones Rule 611 applies to and which ones they 

12 don’t.

13 Thank you for giving me the opportunity, and 

14 I’m happy to consider additional questions. Thank 

15 you. I can’t hear --

16 JUDGE SCHILTZ: I’m sorry. I was calling on 

17 Professor Capra. I apologize.

18 PROF. CAPRA: About the Maine thing, about 

19 the Maine rule, you put up the first part of the Maine 

20 rule, but then the very next sentence is, "But the 

21 court may exclude if it finds that it's not helpful."

22 So what’s the difference between that? It’s 

23 really stylistic. It’s really stylistic whether you 

24 start with "the court" or do you end with "the court." 

25 The court has to be doing something in that rule, and 
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1 the Maine rule takes the court as the second part of 

2 that, whereas this is the first part of that. But 

3 that’s really, to my mind, a stylistic issue.

4 And I guess I would say the other thing I 

5 might just add is, how would this square with all the 

6 other evidence rules which focus on what the court 

7 does?

8 MR. ROSSBACH: Well, I understand that, but 

9 I think that putting the court first versus the court 

10 in the second paragraph has a very -- that’s what I 

11 said. It’s a subtle but I think that it’s an 

12 important difference.

13 I think that the Maine rule, and if you 

14 remove "the court" in the first section of 611 and --

15 because, as you noted, clearly, the second section of 

16 611 says "the court," its utility assisting and 

17 provides a standard.

18 The Maine rule does exactly the same thing, 

19 but it’s also in the second section. I know this 

20 seems subtle and I know it seems stylistic, but when I 

21 read this rule and looked at it, the first thing that 

22 jumped out at me was that the court is a gatekeeper 

23 before you can even start.

24 I don’t know how to explain it any better 

25 than that. But, if I’m a judge looking at this rule, 
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1 it looks to me like I get to decide before. There is 

2 no assumption, in other words, that the illustrative 

3 aid could be used. That’s my concern, is that a court 

4 may very well decide that --

5 PROF. CAPRA: But, if that were true, there 

6 would be no assumption that any evidence could be used 

7 because all evidence like Rule 403 follows this same 

8 structure, the court may admit it or the court may 

9 exclude it.

10 MR. ROSSBACH: I understand, but my 

11 experience is, is that you’re there in court. You 

12 have to all of a sudden pull out a flip chart or a 

13 whiteboard or a blackboard and start, you know, 

14 spontaneously using it.

15 If you have to go and submit to advance 

16 review, letting the court allowing it, I just think 

17 it’s a procedural difference that changes suddenly the 

18 burden. And it may be stylistic, and I appreciate 

19 your concern, Professor Capra, that it may be 

20 stylistic. All I know as a trial lawyer, when I first 

21 read this rule, I said, oh, my goodness, this is going 

22 to make me jump through an extra hoop to be able to 

23 use this when I’m in trial live making my argument or 

24 cross-examining a witness. That’s all.

25 PROF. CAPRA: I just had one -- I'm sorry. 
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1 If I may, I had one further question, and that is 

2 about the definition. I mean, there is a definition 

3 essentially. Instead of just setting it out as a 

4 definition, doesn’t it say -- it says basically 

5 helping the finder of fact understanding admitted 

6 evidence. I mean, you might change that to admitted 

7 evidence or argument. That’s something that the 

8 Committee has to discuss. But isn’t that actually the 

9 definition of "illustrative aid"?

10 MR. ROSSBACH: I think it is, but I think, 

11 if it were more specifically stated as a definition an 

12 illustrative aid is blah, blah, blah, that it just 

13 makes it clearer. 

14 And there's other places in the rules that I 

15 think we may want to bring to your attention where 

16 there seems to be some confusion about the two. And I 

17 think it’s important to find a consistent definition 

18 that can be used throughout, and I think it would be 

19 helpful to the trial court and helpful to the lawyer 

20 to have a definition, to say this is the definition. 

21 That’s all. That may be my stylistic change.

22 JUDGE SCHILTZ: Thank you.

23 Mr. Cooney, do you have a question?

24 MR. COONEY: Yes. The consistent theme 

25 throughout all the comments is the concern that 
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1 somehow spontaneous diagrams or drawings or writing on 

2 a flip chart would be barred by this rule. And I keep 

3 tripping over that because the rule says reasonable 

4 notice. Obviously, something spontaneous, you’re 

5 giving all the notice you can because you’re 

6 generating it right there.

7 And there's also an exception for good cause 

8 by the trial judge, and I think it would be hard for 

9 me to imagine a trial judge being affirmed, let alone 

10 ruling, that because you didn’t show a spontaneous, 

11 which by definition, you know, couldn't have existed 

12 until you were doing it, demonstrative in advance to a 

13 party, that somehow that should be excluded.

14 And I keep tripping over this idea that as a 

15 witness is talking you can’t write down a word that 

16 the witness says at that time or write down the answer 

17 to a question or, you know, do a diagram that the 

18 witness then validates in some way as being barred 

19 because of a lack of advance notice. I’m perplexed a 

20 little bit by why you read the rule that way.

21 MR. ROSSBACH: Well, because it says that. 

22 It says that the party must be given a reasonable 

23 opportunity to object. When you’re writing something 

24 on the flip chart, what is a reasonable opportunity? 

25 In advance, you can’t do that. You’re writing it on 
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1 the flip chart.

2 All I’m saying is, is that I think it’s a 

3 reasonable and practical distinction to say, if you 

4 make up the illustrative aid before trial or in 

5 advance of coming into the courtroom, the court has 

6 the discretion to require you to review it.

7 Otherwise, you can do it live and 

8 spontaneous. How does a live and spontaneous give the 

9 opposing party a reasonable opportunity to object? 

10 There's no opportunity to object. You’re immediately 

11 writing something on the blackboard. 

12 I think, you know, in that context, it’s no 

13 different than a lawyer asking a question of a witness 

14 that the opposing party can get up and object to. 

15 Once the person starts writing on the flip chart, 

16 opposing counsel can stand up and object of the flip 

17 chart. But doing it in advance is impossible in that 

18 context. That’s all I’m saying. There is a very 

19 fundamental difference.

20 And I will say this. In 40 years, I don’t 

21 know whether anybody has really attempted to object or 

22 limit my use of a flip chart or writing something on 

23 the blackboard because, you know, they can very well 

24 object after it’s up there, but they can’t object in 

25 advance. That’s all. It’s just procedurally not 
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1 possible to do, and I think it will confuse the trial 

2 court on what is a reasonable opportunity to object.

3 MR. COONEY: What strikes me on a 

4 spontaneous demonstrative like that, the reasonable 

5 opportunity is the contemporaneous opportunity, and 

6 that’s the reasonable -- I mean, you can’t write, as 

7 the witness is testifying, you cannot write on a flip 

8 chart "you’re lying." I mean, we would all find that 

9 to be objectionable. It’s an illustrative aid and 

10 would be objectionable because of all the dangers on 

11 the weighing process, but you’ve got an opportunity at 

12 that point to object. You turn it around if you need 

13 to have argument. And I don’t understand how you read 

14 the rule to prevent that.

15 MR. ROSSBACH: I just think it -- I just 

16 think there’s a -- it would be easier for everyone in 

17 the courtroom if there were a clear blue line that 

18 says "in advance." If you have it in advance, you 

19 give the other side and the court the opportunity to 

20 review. If it’s not in advance, you don’t have to 

21 have -- I mean, what is a reasonable opportunity? I 

22 just think it’s confusing and doesn’t create a bright 

23 line, practical and sensible distinction. I’m trying 

24 to make it easier for the court and counsel to know 

25 that they have that kind of flexibility in a 
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1 spontaneous illustrative aid.

2 JUDGE SCHILTZ: All right. Any more 

3 questions? Judge Schroeder?

4 JUDGE SCHROEDER: I have one. What we say 

5 in the note, just to follow up, we say in the note 

6 material, "The timing of notice will be dependent on 

7 the nature of the illustrative aid. Notice as to an 

8 illustrative aid that’s been prepared well in advance 

9 of trial will differ from the notice required with 

10 respect to a handwritten chart prepared in response to 

11 a development at trial. The trial court has

12 discretion to determine when and how notice is 

13 provided."

14 I guess my question would be, why does that 

15 not address this issue? I know it’s in the note, but 

16 we can’t put everything in the rule.

17 MR. ROSSBACH: I understand that, but here’s 

18 my concern about not putting everything in the rule. 

19 In court, it’s not always true that everybody has a 

20 copy of the notes in front of them. You may have the 

21 rule but not the note. 

22 Secondly and even more importantly in my 

23 view, a vast majority of these rules in federal court 

24 are going to get incorporated into state court rules. 

25 That’s what happens. I mean, you know that, we all 
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1 know that. State courts make their amendments 

2 consistent with federal rules. Often, and it happens 

3 in my state, and it’s happened in many other states 

4 that I’ve talked to lawyers, the notes don’t get 

5 incorporated also. It’s only the rule that gets 

6 incorporated into state law. The notes are not a part 

7 of that.

8 So something that's as important as this, 

9 and I think the Committee note provides exactly the 

10 kind of definition of what is advance notice and what 

11 is reasonable notice. I think something like that, 

12 that’s why I wanted to draw the sort of blue-line 

13 distinction between advance and not advance. I think 

14 the language of the Committee note is great, but that 

15 Committee note may not be in the courtroom when the 

16 question comes up and the judge has to make that 

17 decision.

18 That’s all I know. Certainly, in state 

19 court, I think we looked at this one time in another 

20 rule that less than 70 percent or some number like 

21 that, the notes do not get incorporated into state 

22 rules. That’s all. I think it’s a practical thing. 

23 I know you don’t want to load up the rule with lots of 

24 other language, but I think the notice and opportunity 

25 to object is one of the critical issues in this 
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1 matter. That’s all.

2 And I think it’s worth -- that’s why I like 

3 the Maine rule that you asked Mr. -- Judge Conrad 

4 asked Mr. Lanier about that, and I think the Maine 

5 rule provides that kind of bright-line distinction. 

6 That’s all, advance or not advance. And I think it’s 

7 pretty reasonable and easy to understand what's in 

8 advance and what’s not.

9 JUDGE SCHILTZ: All right. Any other 

10 questions?

11 (No response.)

12 JUDGE SCHILTZ: I’m not seeing any. Thank 

13 you, Mr. Rossbach.

14 MR. ROSSBACH: You’re welcome. Thank you 

15 for giving me the opportunity.

16 JUDGE SCHILTZ: Our next witness is Brian 

17 Sanford. There you are. Welcome, Mr. Sanford. Be 

18 happy to hear from you.

19 MR. SANFORD: All right. Thank you. All 

20 right. So I just have three quick points that are 

21 similar to the other speakers. First point is we’re 

22 not dealing with anything new. The second, if we’re 

23 going to deal with notice, we’ve got to be very 

24 careful, and the presumption should always be on the 

25 use.
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1 So illustrative aids must have been used in 

2 the very first trials. The Bible speaks of an outdoor 

3 trial of a woman caught in adultery, and Jesus was 

4 called upon to speak about the case. He drew 

5 something in the dirt with his finger, and the woman’s 

6 life was saved by a simple illustrative aid.

7 Federal judges already have and use 

8 authority over the use of illustrative aids at trial. 

9 I just tried a case in federal court a few months ago 

10 with a favorable verdict in which the judge prohibited 

11 the use of all demonstrative and illustrative aids.

12 The federal rules apply to all 50 states. 

13 If there is a concern that a more specific rule should 

14 apply to these kinds of trials, I suggest we allow the 

15 states further time to experiment. We only have one 

16 state’s experience with adopting a specific rule, and 

17 my suggestion is to wait and see how other states and 

18 courts deal with the Maine rule. If not, then we 

19 should be very careful about notice and presumption. 

20 These kinds of trial aids are intertwined 

21 into direct examination and cross-examination. 

22 Requiring notice of an aid is requiring notice of part 

23 of an examination. If we don’t require notice of 

24 examination questions or outlines or even topics, we 

25 should not require notice of trial aids, or there 
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1 should be extreme room in the notice requirements.

2 Attorneys using notice is itself dangerous, 

3 as Mr. Rossbach has been talking about. As I said, we 

4 don’t give reasonable notice of our examination 

5 questions.

6 The spontaneousness of putting reasonable 

7 notice in a rule is giving opportunity for objections 

8 that don’t need to be made. And maybe the law can be 

9 developed and a bright-line rule can somehow be made.

10 But I will tell you that my spontaneous 

11 illustrative aids are many times well thought out in 

12 advance and are pre-drawn by me. If I’m drawing an 

13 org chart on a flip chart, if I’m doing a diagram, 

14 I’ve already thought about that diagram. If I’ve 

15 thought about it, the other side knows I’ve thought 

16 about it, "Objection. Why didn’t we see this before, 

17 Your Honor?" And then there's delay and injustice.

18 So it’s very -- the reasonableness itself 

19 has danger itself, and any rule should presume the 

20 ability to use the aid unless improper. And I agree 

21 with Mr. Rossbach. The first time I read it, it 

22 jumped out to me, hey, it does feel like the 

23 presumption is not used unless the judge says okay, 

24 rather than, oh, it may be used unless prohibited. 

25 The Maine rule does have that feel about it. And so 
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1 the presumption should be use and not the other way 

2 around. So I do thank you for your work and 

3 considering my comments.

4 JUDGE SCHILTZ: Thank you, Mr. Sanford.

5 Professor Capra, you have a question? 

6 You’re muted.

7 PROF. CAPRA: With regard to the presumption 

8 of either admissibility or inadmissibility of 

9 illustrative aids, how would you feel if -- you see in 

10 the proposal that the term "substantially" is 

11 bracketed. If you lift those brackets out, then 

12 doesn’t that do exactly what you want it to do, have a 

13 presumption of admissibility for illustrative aids?

14 MR. SANFORD: Well, the --

15 PROF. CAPRA: In other words, it looks just 

16 like 403 where there's a presumption of admissibility 

17 of probative evidence.

18 MR. SANFORD: I like the language that says, 

19 "may be prohibited by the judge." Right? I like that 

20 language because it gives the sense that it’s admitted 

21 unless prohibited.

22 PROF. CAPRA: Okay. Thank you.

23 JUDGE SCHILTZ: Any other questions for Mr. 

24 Sanford?

25 (No response.)
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1 JUDGE SCHILTZ: I don’t see any. Thank you, 

2 Mr. Sanford, for your testimony.

3 Next, we’ll go to Tad Thomas. Mr. Thomas, 

4 good morning.

5 MR. THOMAS: Good morning. Thank you for 

6 the opportunity to provide some public comment on 

7 illustrative aids. My name's Tad Thomas. I am the 

8 president of the American Association for Justice, 

9 which is the country’s largest plaintiff-oriented 

10 trial bar with a core mission to protect the Seventh 

11 Amendment right to trial by jury. 

12 I am also a trial lawyer. I’ve tried civil 

13 jury trials on subjects ranging from routine motor 

14 vehicle collisions to complex medical negligence and 

15 nursing home neglect and abuse cases.

16 To say that our members are not excited 

17 about this proposed rule would be an understatement. 

18 They truly believe that judges are capable of 

19 determining a party’s use of illustrative aids in 

20 their courtrooms and that a one-size-fits-all rule 

21 does not fit all trials.

22 As you’ve heard, some trials are complex, 

23 they’re long in duration, have large numbers of 

24 experts. Others are short and may involve a dispute 

25 over only a single aspect of a case. And an 
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1 illustrative aid developed well in advance of trial 

2 obviously differs from one that’s developed on the 

3 spot, as we’ve already discussed today.

4 While AAJ is not opposed to the rule, we do 

5 recommend several changes to ensure that there is 

6 flexibility for both parties and judges.

7 First, I would echo the comments of Mr. 

8 Rossbach and the prior speakers. We do believe that 

9 this rule differs from Maine Rule of Evidence 616. 

10 We’ve spoken with our Maine practitioners, and the 

11 crucial aspect of an illustrative aid can be used at 

12 trial as defined under the Maine rule versus the 

13 proposed federal rule, which says, "the court may."

14 We do believe that that is a material 

15 difference between the two rules and that the 

16 Committee should take that into consideration. We 

17 believe that it shifts the burden onto the party 

18 seeking admission or seeking to use the illustrative 

19 aid and it places a higher burden, and it makes more 

20 work for the court, frankly. You know, yes, the Maine 

21 rule can limit the use of illustrative aids, but we 

22 believe that the Maine rule language is preferable to 

23 the proposed rule that the Committee is looking at.

24 Moving on, we also agree that the notice 

25 requirement should be removed. You know, the judges' 
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1 scheduling orders, if they want to require disclosure 

2 of illustratives in advance, can address this issue as 

3 part of routine exhibit exchange.

4 We would note also, I think Mr. Lanier 

5 mentioned this earlier, that the original Maine rule 

6 had a notice requirement as it was adopted in 1993, 

7 but that was removed in 2015 and we think for good 

8 reason.

9 For example, many illustrative aids are very 

10 expensive to produce. And for plaintiff-side 

11 practitioners, we will prepare those as close to trial 

12 as possible. It’s especially important for us on the 

13 plaintiff’s side to avoid unnecessary trial-related 

14 expenses when a case may resolve because trial-related 

15 expenses will diminish our client’s recovery, and we 

16 have a responsibility ultimately to the clients.

17 We would also note, as has been discussed 

18 here, that FRE 1006 is in its formal comment period. 

19 We do, AAJ does support the proposed rule change 

20 there, and we would also note, as Mr. Rossbach pointed 

21 out, that there is a definition of voluminous 

22 summaries in that proposed rule, and we would suggest 

23 a short list of illustrative aids be outlined in 

24 611(b) as well.

25 We’ve submitted in our comments a version of 
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1 the rule that we think accomplishes the Committee’s 

2 goals while ensuring flexibility. We’ll be filing 

3 more extensive public comment.

4 But I would also note before I conclude my 

5 remarks, we also recommend removing the word 

6 "disputed" before the word "fact" in each instance 

7 where it appears. There are many instances where a 

8 fact needs to be established at trial, but it may not 

9 actually be "disputed." For example, in a damages 

10 trial, there may not be a dispute about the underlying 

11 claim and the facts of the underlying claim, but 

12 establishing those facts is necessary to establish 

13 future medical costs that are disputed, for example.

14 So, thank you also. I agree. Thank you all 

15 for your work on the rules, and I’m happy to answer 

16 any questions.

17 JUDGE SCHILTZ: Thank you, Mr. Thomas.

18 Professor Capra? You’re still muted.

19 PROF. CAPRA: I would ask the same question 

20 I asked the last speaker. Doesn’t taking the brackets 

21 off of "substantiate" actually do the job you want, 

22 which is to say that these are essentially 

23 presumptively admissible if they’re at all helpful, 

24 and in a way, that is more, I guess, in tune with the 

25 way the other federal rules are drafted?
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1 MR. THOMAS: Yeah. Thank you for your 

2 question, Professor. We would agree with the way that 

3 the Maine rule is written. We think that is 

4 preferable to the language that you suggest because it 

5 does -- it creates the presumption that it comes in in 

6 front of the jury as opposed to create this test that 

7 the judge has to look at in advance.

8 PROF. CAPRA: But with -- okay. Fine. 

9 Thanks.

10 JUDGE SCHILTZ: Judge Schroeder, you had a 

11 question?

12 JUDGE SCHROEDER: I do. I’m a little 

13 confused by the proposed language. You give a 

14 proposed rule, but it says right out of the box "the 

15 court may allow a party to use." Others have objected 

16 to "the court may allow" language, and I understand 

17 your argument about permissiveness versus -- you know, 

18 there ought to be a permissive rule, an assumption it 

19 could be used. It seems to me that that’s problematic 

20 given some of the other comments we’ve had if that’s 

21 the goal. So, are you saying that that language is 

22 permissive?

23 MR. THOMAS: Yeah, Judge, I’ll have to go 

24 back and look and see what we submitted. We would 

25 agree with the Maine language that it’s permissive as 
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1 opposed to creating a balancing test in advance.

2 JUDGE SCHILTZ: Mr. Cooney, did you have a 

3 question?

4 MR. COONEY: Judge Schroeder beat me to it, 

5 as he usually does.

6 JUDGE SCHILTZ: Okay. Okay. Let me just 

7 see, any other questions from the Committee?

8 (No response.)

9 JUDGE SCHILTZ: I don’t see any. Thank you, 

10 Mr. Thomas, for joining us this morning. 

11 MR. THOMAS: Thank you.

12 JUDGE SCHILTZ: And our last witness is 

13 Tiega-Noel Varlack. Let’s see. Ms. Varlack, good 

14 morning. I’m sorry if I pronounced your name wrong.

15 MS. VARLACK: It’s Tiega. No worries.

16 JUDGE SCHILTZ: Tiega. I’m sorry. I left 

17 out a syllable. Good morning. Thank you for joining 

18 us. We’ll be happy to hear from you this morning.

19 MS. VARLACK: Thank you for having me. Yes, 

20 good morning. My name is Tiega Varlack, and I’m a 

21 lawyer here in California. I'm a member of the 

22 Northern District, Eastern District, Central District 

23 courts, and the Ninth Circuit Court of Appeals. I 

24 have been a practicing attorney since 2006. And in 

25 2005, I was a student member of the D.C. Bar. I have 
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1 tried both civil and criminal cases to verdict, and in 

2 my practice, I come across evidentiary rules every 

3 day.

4 My position on the proposed amendment to 

5 Rule 611 is that I believe the word "may" takes the 

6 creativity as well as the spontaneity out of the trial 

7 lawyer’s toolbox because we’re already in an 

8 adversarial process by the time we get to trial, and 

9 by changing the presumption that the illustrative aid 

10 is to be presented to a maybe can take away from the 

11 lawyer’s ability to plan ahead.

12 Specifically, when you are doing an opening 

13 statement, yes, those PowerPoints are usually 

14 exchanged ahead of time and discussed and objected to 

15 before the jury ever takes its seat.

16 However, in other examples, such as like 

17 using Google Maps and diagrams as you go along or 

18 maybe if you need to use it as an impeachment tool, 

19 you may not want to have that shown to the defendant 

20 ahead of time. And so, in those instances, I believe 

21 putting the word "may" into the equation takes away 

22 from the opportunity to just go ahead and do what you 

23 have already prepared to do before asking the court's 

24 permission.

25 I also take issue with the word "admitted" 
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1 in front of the word "evidence" because, again, if the 

2 evidence is not yet admitted, I think you can still 

3 use an illustrative aid, such as in an opening 

4 statement or depending on if the particular witness 

5 calls for that type of presentation.

6 I think that we also do not need to put in 

7 any further gatekeeping rule because the way that 

8 things have been done up until now have allowed the 

9 court to control the proceedings.

10 And even looking at Rule 611 as it’s written 

11 today, the very beginning of the rule tells you that 

12 it’s up to the court to control itself, and it gives 

13 some directives as to how that can be done to avoid 

14 wasting time and to protect the witnesses from 

15 harassment and undue embarrassment.

16 And then we also have Rule 403 still there. 

17 So, I don’t even think we need to write in another 

18 mini-403 into this rule. I think that it’s good how 

19 it is without that. And, additionally, I think that 

20 if you look at Rule 402, the presumption is that 

21 relevant evidence is admissible. And so, if an 

22 illustrative aid is actually just there to assist the 

23 fact-finder in understanding evidence, then that also 

24 should be admissible just by what Rule 402 says.

25 So, my suggestion of how the rule should be 
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1 written is as follows: I think that it should say, 

2 "Illustrative aids may be used to help the finder of 

3 fact understand evidence if all parties are given a 

4 reasonable opportunity to object."

5 I think that that is a very simple way of 

6 showing the court and the litigants how to use an 

7 illustrative aid and what its utility is, and it 

8 doesn’t go so far as to create another set of 

9 procedural rules when the court already has everything 

10 at its disposal that it needs in order to control the 

11 court and prevent prejudice to either side. So, with 

12 that, I do thank you for allowing me to testify.

13 JUDGE SCHILTZ: Thank you, Ms. Varlack.

14 Mr. Cooney, you have a question?

15 MR. COONEY: Yes, I do have one question. I 

16 take your point about the tie to "admitted evidence" 

17 may create problems in opening statements in which no 

18 evidence by definition has been admitted except 

19 perhaps by stipulation.

20 But I don’t know how your proposed rule 

21 solves that problem. I think somebody else had talked 

22 about perhaps use of illustrative aids to help the 

23 jury understand evidence admitted or to be admitted or 

24 to understand argument, to give that flexibility in 

25 opening statement. But can you explain how your 
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1 proposed change would erase the opening statement 

2 problem?

3 MS. VARLACK: Yes. So let me look at my 

4 note again. So, I think that it says, "Illustrative 

5 aids may be used to help the fact-finder understand 

6 evidence." So I think that in your opening, if you’re 

7 using an illustrative aid to summarize evidence that 

8 you know is going to come out or to diagram a car 

9 accident or the anatomy of the spine or something like 

10 that, I think that that still is a -- I don’t want to 

11 use the word "summary," but I think that is still a 

12 demonstration of evidence or is still a mode of 

13 communication that can help the fact-finder understand 

14 the concept.

15 So, I think that my rule would still not 

16 necessarily get rid of the problem of the opening 

17 statement not having admitted evidence, but I think 

18 that it kind of encompasses a broader category of what 

19 could be considered to be the foundation for an 

20 illustrative aid if that makes sense.

21 JUDGE SCHILTZ: All right. Any other 

22 questions? Yes, Judge Conrad?

23 JUDGE CONRAD: We’ve had six presentations, 

24 all very helpful, none of which dealt with the subpart 

25 dealing with use of illustrative aids in jury 
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1 deliberations. I would have thought that there would 

2 have been more controversy with that provision or at 

3 least discussion, but it seems unobjectionable.

4 MS. VARLACK: No, that’s not correct, Your 

5 Honor. So, what happened was, in my letter, I did 

6 write that I think that they should definitely be put 

7 in the record when the jury wants to see them during 

8 deliberations. I apologize if that’s something you 

9 wanted to hear about, but I didn’t say -- I just 

10 didn’t want to go over my time. But I definitely 

11 think that a record should be as robust as possible.

12 So, with the illustrative aid, if it is used 

13 during the trial, and assuming the jury comes back and 

14 asks a question and would like to see it again, I 

15 think that that’s definitely something that should be 

16 in the record.

17 And I’m not opposed to illustrative aids 

18 going back to the jury room as long as both sides 

19 agree. That would be a place where I think that both 

20 sides should agree before it being able to go back 

21 because, for example, if it’s a reenactment or 

22 something that’s more involved than maybe just a flip 

23 chart for writing out a witness's testimony, I think 

24 that’s something that can be manipulated. So, I would 

25 seek agreement on that before allowing it to go back 
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1 to the jury.

2 JUDGE CONRAD: It is a subpart that is to be 

3 read in conjunction with the 1006 summary language 

4 where the summary itself is substantive evidence, and 

5 the illustrative exhibit is something other than that. 

6 And the distinction between taking back to the jury or 

7 not is a very important one on a practical level for 

8 trial courts.

9 MS. VARLACK: I agree with that statement.

10 JUDGE SCHILTZ: All right. Any more 

11 questions for Ms. Varlack?

12 (No response.)

13 JUDGE SCHILTZ: I don’t see any on my 

14 screen. Thank you very much, Ms. Varlack, for 

15 testifying today.

16 MS. VARLACK: Thank you.

17 JUDGE SCHILTZ: And with that, we’ll bring 

18 our hearing to a close. I want to thank again all of 

19 the witnesses for taking the time to submit written 

20 comments and to join us here this morning. Please be 

21 assured that we will give careful consideration to 

22 everything that you’ve said, and, again, we appreciate 

23 your time. So, this will bring the hearing to a 

24 close, and thank you, everyone, for joining us.

25 //
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1 (Whereupon, at 10:00 a.m., the meeting in 

2 the above-entitled matter adjourned.)

3 //

4 //

5 //

6 //

7 //

8 //

9 //

10 //

11 //

12 //

13 //

14 //

15 //

16 //

17 //

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25 //
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REPORTER'S CERTIFICATE 

CASE TITLE: Proposed Amendments to the 

Federal Rules of Evidence 

HEARING DATE: January 27, 2023 

LOCATION: Washington, D.C. 

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts. 

Date: January 27, 2023 

 

David Jones 

Official Reporter 

Heritage Reporting 

Corporation 

Suite 206 

1220 L Street, N.W. 

Washington, D.C. 20005-4018