Personal Injury Law

Beware of the Literature Reprinted: Investigation of adversary's treatises is now required

By Bruce Stern

Ever since the New Jersey Supreme Court liberalized and modernized the use of learned treatises, the use of medical literature to support one’s theories or to cross-examine an adversary’s experts has proven helpful. [N.J.R.E. 803(c)(18); Jacober v. Saint Peter’s Medical Center, 128 N.J. 475 (1992).]

While this liberalization was a welcomed change to the stifling old rule, which in reality prevented the use of learned treatises, new issues regarding the validity of medical research mandates that the trial attorney now research not only one’s opponent’s experts, but investigate the authors of those learned treatises which will be relied upon by one’s adversary.

Prior to 1992, one could only utilize a learned treatise during cross-examination, if and only if, the defense expert acknowledged that the learned treatise was authoritative. Should the expert fail or refuse to acknowledge such authoritativeness, the attorney was precluded from using the learned treatise to cross-examine that expert. In 1992, the New Jersey Supreme Court in Jacober, adopted the Federal Rule of Evidence regarding the introduction and use of learned treatises. Shortly thereafter, the “Jacober rule” was codified and became a part of New Jersey’s Rules of Evidence, 803 (c) (18).

This is an excerpt from the article, Beware of the Literature Reprinted: Investigation of adversary's treatises is now required, from the September 22, 2008 edition of the New Jersey Law Journal. You can read the full article here (PDF).

Full post as published by Traumatic Brain Injury Law Blog on September 26, 2008 (boomark / email).