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Managing the Rules of Evidence: The 15/90 Rule

If I were to ask you right now how many rules are there in the Federal Rules of Evidence, would you know? I did not, I had to google it. There are only 67 rules, and South Carolina like many other states, has very similar rules of evidence. That means that learning and understanding the basics of evidence is not as daunting as it should be for a rising 2L who is about to take Evidence.

But I think that the rules can be broken down even more than that and made much more manageable. I believe in the 15/90 rule: In trials (where the rules are most commonly used), litigants use about 15% of the rules 90% of the time. Now, this statistic could be way off, and technically I did just make it up, but I think it applies. During trials, judges often have to rule on hearsay, impeachment, relevance, and authentication. These areas of evidence consist of about 10 rules. Of course the remaining rules are important and do get used in court. But how often does a judge rule on Rule 605: judge as a witness?

My advice to myself and other litigants is to have a framework understanding of these 10 rules and you will feel much more confident in your next trial:

403: Relevance

404: Character Evidence/Prior Bad Acts

405: Proving Character

608: Impeachment

609: Impeachment by Conviction

613: Impeachment by Statement

801: Hearsay

803: Exceptions (less stringent)

804: Exceptions (more stringent)

901: Authentication

Before any trial, I often have to go over these rules and refresh my memory with them because I know they are likely to come up. As I have become more comfortable with these rules, it is easier to build off of them and learn the other rules in more detail.

This is just how I try and understand the FRE - for you it could include many more rules, or a whole lot less.

But for any 2L who has their Evidence exam coming up, remember that those exams likely follow the 100/100 rule: 100% of the rules 100% of the time.


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