Georgia Rewrites Its Trial Rules, Replacing a 19th Century System
By John Gramlich, Staff Writer
Georgia lawmakers got plenty of attention this year arguing over the state budget and whether to crack down on illegal immigration. But another noteworthy event — an overhaul of the trial rules followed by lawyers and judges in every state courthouse from Atlanta to Savannah — attracted surprisingly little notice. House Bill 24 sailed through the 236-member General Assembly with just eight opposing votes before being signed into law with hardly any fanfare by Governor Nathan Deal.
If H.B. 24 seemed from the lopsided vote to be routine legislation, a closer look tells another story. Deal's signature this month ends a 20-year behind-the-scenes struggle to pass a bill that the governor himself pushed when he was a state senator in 1991. By the end of next year, Georgia's lawyers and judges will have to master a new set of rules for doing their work in state court.
The 132-page legislation rewrites the evidence code that Georgia attorneys and judges have been following since the Civil War. The code applies to both civil and criminal cases and governs everything from the kinds of statements witnesses may make when they are being cross-examined to the kinds of documents defense attorneys can use to defend their clients.
Almost every state has changed its evidence code in recent decades to bring it in line with the Federal Rules of Evidence, a national system that was enacted in 1975 to bring uniformity to federal proceedings. Georgia, however, has doggedly stuck to its own rules — many of them unchanged since 1863 — even though all of its neighboring states have embraced the federal code.
The result, critics say, has been an uneven and confusing application of basic evidence rules depending on whether a case is being handled in federal or state court or whether it is being heard in Georgia or any other nearby state. Georgia, for instance, is the only state still following a 19th century rule that technically considers hearsay "illegal evidence." The state often requires original documents to be presented, even though most other states say copies are sufficient. Under some circumstances, juries can decide whether evidence is admissible, though almost everywhere else judges must make that determination.
"It's not good for anybody when people have to learn two sets of rules," says Paul Milich, a Georgia State University law professor who has exhaustively studied the differences between the state and federal codes and was at the center of the push for the new rules. "Sometimes they don't know either set very well."
After 20 years of lobbying, Milich and a diverse group of lawyers' associations and business interests finally found traction this year. With the newly elected Deal in the governor's mansion, they convinced lawmakers that a 148-year-old evidence code is no longer in step with modern society and may make Georgia unattractive to some businesses, which depend on a predictable court system.
"Big companies have their headquarters here," says Richard Malone, executive director of the Prosecuting Attorneys Council of Georgia. "It helps them to have a consistent set of (rules), the same ones they're going to see in Chicago and New York and Los Angeles."
Milich says the new law brings Georgia "about 96 percent" in line with the Federal Rules of Evidence. Proponents say it will make life easier for Georgia's lawyers and judges in the long run even if some of them may not be happy about having to learn or re-learn those rules in the next 19 months.
'Listen to the lawyers'
While Georgia now has joined a long list of states that have updated trial rules, it still stands out in some ways. One is that it gives its state lawmakers — rather than the judiciary itself — the power to set courtroom procedure.
That's actually the main reason why the change wasn't made long before now. Former House Speaker Thomas Murphy — the longest-serving speaker in any legislature in U.S. history until he lost reelection in 2002 — single-handedly prevented a rewrite of the evidence rules for years.
Murphy, who died in 2007, was an "old warrior" who saw no need to fix a system he thought wasn't broken, says Wendell Willard, the current chair of the Georgia House Judiciary Committee. "As long as I'm speaker, it's not going to happen," Willard recalls Murphy saying.
Lawyers' groups planned a fresh push to change the state's evidence rules in the mid-2000s. But a Republican takeover of the General Assembly pushed a tort revision bill to the top of the legislative agenda at the Capitol. Fearful that the new evidence rules would fall victim to partisan politics if they became tied to the divisive tort measure, lawyers pulled back their lobbying efforts on the rules of evidence.
Yet another obstacle surfaced when the politically powerful prosecutors' council expressed opposition to the rewrite of trial rules. State prosecutors felt they stood to lose the most from the change, since they rarely practice in federal court and therefore would be the least prepared to switch to the federal evidence rules.
In the end, Milich and the State Bar of Georgia led a series of discussions among stakeholders ranging from medical malpractice lawyers to the Georgia Chamber of Commerce. The prosecutors eventually dropped their opposition and bought into the changes. When the diverse group came back this year with legislation they all supported, members eventually agreed to go along with it. Lawmakers, Willard says, decided to "listen to the lawyers in the room."
A crash course on rules
The new evidence code goes into effect on January 1, 2013. Until then, Georgia's lawyers will be studying it in seminars and other professional development classes around the state.
Most lawyers should be generally familiar with the federal rules already, either because they do some of their practicing in federal court or because they recall the rules from their law school days. But for some who have been working almost entirely in state courts, the assignment could require many hours of study. Among the details they will have to learn are new rule numbers, since lawmakers rewrote the entire code.
Bill Clark, director of political affairs for the Georgia Trial Lawyers Association, jokes that Milich — the Georgia State law professor who knows the state's new evidence code better than anyone — could consider a lucrative side job for the immediate future.
"Professor Milich will probably be a popular speaker," Clark says. "He should charge significant sums and he'll be able to take early retirement from being a law professor."