by Hannah Mufson McCollum
Pepper Hamilton LLP; Detroit
In ordinary litigation proceedings, lawyers often introduce summaries for a variety of purposes, either evidentiary, demonstrative or both. Unfortunately, many bankruptcy lawyers who do not litigate as frequently and who may not be as familiar with the Federal Rules of Evidence are not aware of the different types of summaries and the rules that apply to each type. When bankruptcy lawyers are not familiar with the rules, the bankruptcy court may be called upon to decide whether an appropriate showing has been made to allow the use or the admission of a summary. An unfavorable decision can result in an unpleasant surprise to a bankruptcy attorney diligently advocating for a client. Keeping the following guidelines in mind when using or opposing summaries in court proceedings can avoid both unfavorable decisions and unpleasant surprises.
The first kind of summary is one that may be offered into evidence. Under Federal Rule of Evidence 1006, a summary may be offered into evidence if the underlying writings, recordings or photographs the summary describes are so voluminous that they “cannot conveniently be examined in court.” Fed. R. Evid. 1006. In the case of a Rule 1006 summary, the summary itself, not the documents that underly it, is the evidence to be considered by the fact-finder. In order for a summary to be admissible under Rule 1006, the summary must meet certain requirements. First, it must relate to documents that are so numerous as to make “comprehension difficult and . . . inconvenient.” United States v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998) (citations omitted). Second, the proponent of the summary must also have made the documents “available for examination or copying, or both, by other parties at [a] reasonable time and place.” Fed. R. Evid. 1006. Third, the proponent of the summary must establish that the underlying documents are admissible in evidence. Bray, 139 F.3d at 1109 (citations omitted). Therefore, if the underlying documents are inadmissible, a chart or other summary based on those documents is also inadmissible, even though the summary itself is the evidence to be considered by the court. Finally, the summary has to be accurate and nonprejudicial. Id. at 1110. An example of this type of summary is an exhibit to a preference complaint, which might summarize invoice dates, numbers and amounts, rather than introducing the (potentially voluminous) documents themselves. An attorney working with this type of summary must be mindful of the rules of evidence, and make sure that the summary and the underlying documents, even though they are not going to be admitted into evidence, are both admissible, and be prepared to address possible objections.
The second type of summary is what can be referred to as a “pedagogical-device summary” or demonstrative summary. This type of summary is an illustration, such as a chalkboard or dry-erase board drawing, posterboard illustration, graph, calculation or listing of data taken from testimony or documents. Such a summary is intended to summarize, clarify, explain, emphasize or simplify evidence that has been admitted, but this type of summary is not itself admitted into evidence. It is primarily used to present and explain evidence to a court or to a jury. Such pedagogical devices “are more akin to argument than evidence . . . . Quite often they are used on summation.” Bray, 139 F.3d at 1111 (citations omitted). Generally, such a summary is, and should be, accompanied by a limiting instruction that informs the jury (if there is one) of the summary’s purpose and that the summary itself is not evidence. In other words, summary exhibits that are used as pedagogical devices do not, “strictly speaking . . . fall within the purview of Rule 1006.” United States v. Paulino, 935 F.2d 739, 753 (6th Cir. 1991). An example of this type of summary is a graph comparing one valuation expert’s opinion to the opposing experts’ in the context of fraudulent-transfer litigation or in the context of a contested confirmation hearing. Therefore, when dealing with this type of summary, an attorney should know that it does not have to be admissible and, as long as it is relevant and helpful to the trier-of-fact, may be used to assist the trier-of-fact in evaluating or understanding the evidence. An attorney using such a summary must also be aware that it is not admissible into evidence, and thus that admissibility objections by opposing counsel are no more than a distraction attempt.
The third type of summary, and the trickiest, is known as a secondary-evidence summary. These summaries are a combination of evidentiary summaries under Rule 1006 and demonstrative summaries. Secondary-evidence summaries are not prepared entirely in compliance with Rule 1006, yet they are more than mere pedagogical devices designed to simplify and clarify other evidence in the case. Secondary-evidence summaries are admitted into evidence as a supplement to other admissible evidence because in the judgment of the trial court, such summaries so accurately and reliably summarize complex or difficult evidence that is received in the case as to materially assist the fact-finder in better understanding the evidence. Bray, 139 F.3d at 1111. Such a summary, for example, might be used to clarify or explain complicated financial information that has been admitted into evidence, and would itself be admitted into evidence. If such a summary is used, a jury (if there is one) should be instructed that this type of summary is not independent evidence of its subject matter, and is only as valid and reliable as the underlying evidence it summarizes. See United States v. Citron, 783 F.2d 307, 317 n.10 (2d Cir. 1986). An example of this type of summary might be a graph summarizing the stock-price trends of a companys as discussed in an admitted expert report. The graph supplements the difficult-to-understand financial or other valuation information so that the trier-of-fact may more clearly understand it. Therefore, in the relatively rare instance that a bankruptcy attorney wishes to use a secondary-evidence summary, he or she should focus first on the admissibility of the primary evidence the summary describes. If that evidence is admitted, then the summary should also be admissible, so long as it is accurate, helpful and non prejudicial. However, a bankruptcy attorney wishing to use a secondary-evidence summary should be well aware of its purpose and advise the trier-of-fact of the limited purpose for which the summary is being admitted.
To minimize surprises and ambushes, always know which type of summary is at issue and why it is being used. Challenging a summary that is only being used to demonstrate a point is not effective and wastes the court’s time. If you keep the different types of summaries and their purposes in mind when preparing to use a summary and know which rules of evidence apply, you will not be surprised, and your trial will go much more smoothly.