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Trial Lawyer's Notebook:
The Rule of Completeness



By Tony Zeuli of Merchant & Gould

Tony Zeuli is a trial lawyer specializing in patent and trademark litigation with the IP firm Merchant & Gould. He also has considerable experience before the Court of Appeals for the Federal Circuit. Tony has given several presentations and published numerous articles on intellectual property litigation, especially patent claim construction. His articles have also appeared in The Federal Lawyer and Bench & Bar. Prior to joining Merchant & Gould, Tony was a physics engineer at Argonne National Laboratory, where he was involved in the study of nuclear physics. Mr. Zeuli can be reached at 612.371.5208, or by email at tzeuli@merchantgould.com, or by visiting his web site at http://www.zeuli.com.


There are only a few things worse at trial than having your evidence kept out. And only a few things better than keeping out your opponent's evidence. For the side that is stopped from presenting its evidence, it can throw off timing, shift momentum and, sometimes, be case dispositive. Too often we only examine the admissibility of our evidence and the rules that affect it close to trial. But often that is too late, especially for the "rule of completeness." Federal Rule of Evidence 106 requires that when a part of a writing or recorded statement is offered as evidence by one party, an opponent may require at that time the introduction of the entire writing or recorded statement or any other part that it claims ought to be also considered. The purpose of the rule of completeness is to reduce the risk that the writing will be taken out of context. The Eighth Circuit explained that the rule of completeness is invoked when necessary to "(1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding." The rule is one of inclusion, not exclusion, but it is not always applied that way. In other words, when a portion of a writing will be admitted, the rule of completeness requires that the entire writing be admitted at the same time. However, sometimes the rule can be used to keep out evidence when the complet...

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