Judge David B. Torrey

Review: Andrew Porwancher's book, John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law (U. Missouri Press 2016)


by Andrew Porwancher
University of Missouri Press. 221 pp. 2016.

Arthur Larson famously declared, in his treatise, “[t]he evidence problem in workmen’s compensation is not the admissibility of evidence incompetent by common law standards, but the ability of such evidence to support an award.” By this admonition, he synthesized the then-current majority rule among workers’ compensation systems, which allowed into evidence proofs which would be excluded at trial by jury, but which demanded that, in the end, “there be a residuum of competent evidence upon which the Commission’s finding … rests.”

Of course, we know in the present day that jurisdictions differ significantly in their approach to treatment of evidence in disputed workers’ compensation cases. The rules do not apply at all, for example, in administrative proceedings in Texas, whereas they have complete application in Florida. Then there are states like Pennsylvania, where the statute, coming close to the Larson formulation, provides at once that the rules of evidence do not apply, but that every decision be based on substantial and legally competent evidence. This latter provision has made the rules of evidence essential in the Pennsylvania practice – if the WCJ cannot rely on legally incompetent evidence, hearsay in particular, why listen to it in the first place? Lawyers in our practice are expected to object to classically objectionable proofs, and judges are expected to make accurate rulings. Default by either is incompetence.

Appreciating the evidence law in workers’ compensation proceedings was certainly evident to me when I was first in practice as a defense lawyer. I soon sought to organize the rules, statutory and common law, in a 1991 law review article, "The Rules of Evidence Under the Pennsylvania Workmen’s Compensation Act: Sources and Theoretical Considerations." I could imagine, at the time, Larson frustrated that someone would publish an article with such a title, but the reality of the litigation trenches was that the evidence issue in Pennsylvania workers’ compensation was both the admissibility of evidence and the ability of such evidence to support an award. While that article is, in part, obsolete, I have kept my own tattered copy close at hand, lo these many years, and still find many occasions to consult it.

Knowledge of the evidence law is hence critical to the workers’ compensation lawyer. It is further submitted that knowing where the modern principles and rules of trial evidence came from only enriches such appreciation. Of course, we all know that many trial evidence rules have their genesis in the concern that certain potentially confusing proofs must be kept from the jury – not usually a concern in workers’ compensation – but more exists to the story.

Author Andrew Porwancher, who teaches Classics at the University of Oklahoma, has aided us in this respect with the publication of his marvelous new book, "John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law."

Wigmore (1863-1943), of course, is a name known by every law school graduate, one synonymous with the influential treatise on evidence which he wrote. That book, eventually reaching ten volumes, went through three editions, 1904, 1923, and 1940, and Porwancher, among others, considers the text to be one of the most influential in the history of law. While the Federal Rules of Evidence now stand as the default state-of-the art compilation of modern evidence rules, it was Wigmore who first “tamed the unwieldy field and subjected evidence doctrine to the tenets of legal modernism.”

Porwancher has written a biography, and we come to know the man (cerebral, ambitious, workaholic, temperamental), and his career (Harvard Law graduate, Dean of Northwestern Law School, colonel in the World War I JAG Corps).

Still, true to the book’s title, the author’s goal is to explore how Wigmore brought legal realism (also known as modernism) to the law of evidence and hence to the regime of American jury trials. Wigmore, Porwancher explains, in essence put to work Oliver Wendell Holmes’ famous declaration about the life of the law being not logic, but experience.

Porwancher undertakes this exploration by a study of the philosophy of those who influenced Wigmore (Holmes, the Harvard pedagogue James Bradley Thayer, and Jeremy Bentham); by a comprehensive review of the treatise itself; and by analyzing the influence of the book and its assessment by others (Holmes, Benjamin Cardozo, Roscoe Pound).

The author’s undertaking has yet a further goal, an aspect, indeed, of the book’s central thesis – refuting (persuasively) a revisionist allegation, advanced by some, that Wigmore was not a legal realist but, with his efforts at categorization and “taming the unwieldy field,” himself an old-fashioned “formalist.”

Legal realism was a movement which argued against the “rigid formalism” of 19th century legal procedure. Thayer (who taught both Holmes and Wigmore at Harvard) and Bentham (in England) had complained for years of the waste and injustice that was occasioned by trial judges inflexibly applying evidence rules. This dominant approach had its genesis, at least in part, in the idea that a rule once established must be applied with inflexible logic – the judge a mere umpire to apply the rule “universally,” without taking into account the particulars of a case and/​or the consequences of applying the rule. The prevailing theory which supported this regime was that law was “autonomous” from, and not integral to, society and its needs, nuances, and vagaries.

Wigmore’s intellectual forebears believed all of this to be nonsense. They believed, instead, that law was a social construct, and considered as hopelessly abstract and untrue the idea that law stood autonomously from society. The consequent idea that a rule should apply universally, without regard to the circumstances of the case and the consequences of application, was hence unsatisfactory. Indeed, a judge’s devotion to rigid formalism could give rise to mindless inefficiencies and even the occasional monstrous result.

The legal realists instead favored consequentialism, to wit, balancing tests that considered the effects of a rule on the reality of the situation and on society in general. Meanwhile, the trial judge was not to be conceptualized as a mere umpire at time of trial, allowing the lawyers to undertake their “sport,” but should be pro-active and possessed of significant discretion to evaluate the circumstances and decide whether or not evidence should be admitted or excluded.

Porwancher shows that Wigmore, with his treatise, put into effect these modernist views, asserting, indeed, that the treatise is the “consummate expression of modern legal thought.” While Wigmore sought to synthesize and categorize the law of evidence (indeed, the first edition featured 40,000 cites), the book was not some mere “taxonomy” of the evidence law. Instead, throughout the book he advanced the principles of modernism, “encouraging judges to eschew universal principles and instead treat cases on an individual basis.” His book promoted balancing tests instead of formalism’s “fetish for logical forms,” and it accepted the “murky and conflict-laden character of the law, … prefer[ing] to acknowledge contradiction rather than impose a false sense of coherence.”

Porwancher’s book helpfully identifies many of Wigmore’s recommendations as contrasted with the prior formalist practice. For example, in the 19th century, the so-called “Exchequer Rule” (here called “loathsome”) held that a new trial should be automatically granted for even the most minor error in the admission or exclusion of evidence. Wigmore rejected this rule, insisting that the trial judge “must cease to be merely an umpire at the game of litigation.”

Another old rule, this one surrounding hearsay, posited, in a case involving personal injury, that statements made by the plaintiff to another concerning physical pain, made after litigation commenced, could never be admissible. Wigmore recognized that the exclusionary rule was born of a fear of creating an “incentive for people to feign afflictions,” but rejected the old rule which demanded automatic disqualification. Instead, the trial judge should be able to consider the circumstances of each case.

Yet another formalist rule was that the opinion of an expert could only be challenged via cross-examination; it was not permissible for an opponent to assail such testimony via the testimony of one’s own expert. Wigmore was sympathetic to this rule against “extrinsic evidence,” but would afford the trial judge discretion to allow such testimony on a case-by-case basis.

In this same spirit, Wigmore, concerned as he was about the consequences of rules, argued that evidence of post-accident modifications should be excluded. It is with this familiar rule, which has endured in our state (see Rule 407), that the Holmes/​Wigmore modernist credo is so evident. Logic dictates that the subsequent modifications are relevant to the issue of negligence. Yet, the consequences of allowing into evidence testimony about post-accident modifications would have a societally deleterious consequence (i.e., disinclination of the defendant to correct a hazardous condition). In other words, considerations of societal consequences of a rule can trump a rule which would permit the admission of what, logically, appears to be relevant.

A helpful attribute of Porwancher’s book is its excellent organization and the author’s dependable contextualization of his various subjects. With these features, the book is highly accessible to all readers. The book is also flawlessly edited and produced; if a period is out of place, I did not recognize the same in the course of my two readings.

Has the treatise been of influence in the workers’ compensation practice? In a key Pennsylvania workers’ compensation case from the 1970’s, a referee’s award of benefits to a widow in a cardiac death case was supported, in part, by statements to her by her deceased husband about the discomfort he had felt in his chest ever since his work-related back surgery. (Dr. Cyril Wecht was thereafter to rely on the same in his forensic opinion.) The defense objected on the grounds of hearsay, but in establishing the “then-existing physical condition” hearsay exception in workers’ compensation cases, and allowing the testimony, the Commonwealth Court resorted in part to the authority of the Wigmore treatise, which favored admissibility.3 Thus, to paraphrase the Larson formulation, “an evidence problem in workers’ compensation” was indeed the admissibility of evidence, and Wigmore’s influence, so thoroughly depicted in Porwancher’s fine book, helped to provide the answer.

[As to the Pennsylvania case, see House Moving & Rigging v. WCAB (Henchell), 391 A.2d 1105 (Pa. Commw. 1978) (“The prevailing view in other jurisdictions in non-workmen’s compensation cases appears to be that statements of a declarant’s then existing physical condition, such as expressions of pain, are admissible as exceptions to the hearsay rule, regardless of to whom the statements are directed. See, e. g., Fed.R.Evid. 803(3), 6 J. Wigmore, Evidence §§ 1718, 1719 (Chadbourn rev. 1976) ….”).]

Pennsylvania Bar Association Workers’ Compensation Law Section Newsletter
Newsletters back to July 2003 are available at “Members Only” link.

Selected Works

Legal Treatise
The definitive treatise on the law and practice of workers’ compensation under the Pennsylvania Act.
A review of an important book for the workers' compensation practitioner.
Marathon training in an old West Virginia river town.

Quick Links

Find Authors