An evidence professor has weighed in on the Court’s recent decision in Reliance Steel & Aluminum Co. v. Sevcik, No. 06‑0422 (Brister, J.). That was the case (mentioned here) in which the plaintiff had introduced evidence of the defendant’s gross revenues, even though it did not bear on the negligence issues in the case.
Professor Colin Miller blog post[blog post] focuses on the Court’s discussion of the “invited error” doctrine and its application to the situation when both parties try to introduce similar evidence:
According to the Court, “One party cannot violate the rules of evidence just because the other party tried to do the same, especially if the other party’s evidence was excluded.”
I pretty much agree with the Court’s ruling and its decision to order a new trial, but I do think that this last statement is a bit of an overstatement. If I were crafting the final line, it would have read, “One party cannot violate the rules of evidence just because the other party tried to do the same, as long as the other party’s evidence was excluded.” If the other party’s evidence were not excluded, then that would indeed trigger the invited error doctrine, and the other party indeed could violate the rules of evidence with regard to the subject broached by the evidence.
As the professor notes, his formulation would create a situation where one party’s violation of the rules of evidence automatically excused the other party’s. The Court’s formulation reserves discretion in the Court.
To my eyes, the professor’s suggested rule isn’t about the “invited error” doctrine at all, because it has nothing to do with whether the Court is invited into error. If anything, the professor seems to be extending a different sort of equitable principle (unclean hands?) to the evidence context. I think the Court got this one right.