Lawyers spend a ton of time thinking about intent. Intent is what separates murder from negligent homicide. It’s key to deciding whether minds have met to form a binding contract. Intentional torts are punished. Notions of intent pervade the law: testamentary intent, transferred intent, malice, bad faith, mens rea, scienter and premeditation. The intent of the framers of the U.S. Constitution was the linchpin of the late Justice Antonin Scalia’s interpretation of that great document.
Intent is the attitude with which one acts. It can be general intent in the sense of acting in the way you meant to act, or it can be specific intent in anticipating and seeking a specific outcome. Intent is all in the mind.
Proving intent is one of the harder things trial lawyers do. Short of the rare Perry Mason moment when a party confesses intent ( i.e., “You’re damn right I killed him, and I’d do it again. The bastard NEEDED killing!!”), lawyers must resort to evidence that illuminates the intent of a specific person or corporation or that of a reasonable person or corporation similarly situated in terms of what he, she or it would have thought, anticipated or known.
When lawmakers demand proof of intent, they necessarily contemplate that evidence of intent be brought forward. Lawyers must be able to delve into intent and discover direct and circumstantial evidence of intent. We must be permitted to probe the knowledge, experience, attitudes, motives, expectations and prejudices of the person or entity whose intent is at issue.
Because intent is elemental but difficult to prove directly, the law gives leeway to the discovery process. For example, Courts generally prohibit evidence of other wrong acts or bad character to prove a specific act in accordance with character or traits but make an exception and permit the evidence to come in when prior bad acts show intent. Federal Rules of Evidence Rule 404(b)(2).
All of this is prelude to discussing the broader impact of amended Rule 37(e) of the Federal Rules of Civil Procedure, now requiring a finding of an “intent to deprive” as predicate for sanctioning evidence destruction and discovery obstruction. Continue reading