Do Not Write on the Evidence

How many times has a client come in with a great piece of evidence only to find it is ruined because they have indelibly added their testimony to the face of it in blue or black ink. It is as if the intense need to control events blots out any kind of judgment they might have had, or restraint to action until they can get some legal advice.

A letter might have proved their point, but who can say who is the author of all the rest of the commentary?document

I can hear the objection already, the document is not authentic because the author is undetermined.

Or in the case of a bank statement which was certainly produced by the bank, but who wrote “Uncle Charlie told me I was supposed to get this!!!” on the face of it?

 

 

I have vivid memories of a judge examining the offered exhibit then angrily declaring “Some one has written all over it!” knowing that someone was seated at counsel table next to me.

 

Objection Sustained.mean judge

Family Law Tip: Do Not Bring the Subject Matter to Court

This may sound fairly obvious but if you are litigating over children, the judge does not need to see them. They have a pretty good idea of what children look like, some of them are even parents. They will not be swayed by who is holding the subject matter.

babes in arms

I am just back from the family law motions calendar and found as many babes in arms as there were lawyers and litigants.

One boy was a bit older, and was waiting out in the hall with his aunt presumably. He had a toy gun, which he aimed and fired at everyone.
boy with assault touy
We have security, how did he get that thing into the courthouse? security at the courthouse

There is no Substitute for Experienced Advocacy

1. We Are Created Equal. Among the Jeffersonian myths that have survived is the idea that all men are created equal. Perhaps that is true, but after birth their experience differs widely. They may not be that educated gentleman farmer Thomas Jefferson saw us as becoming these generations later. In fact, most are not. Thomas Jefferson

In the last several years the bench and bar have had a buzz word gone into policy called “Access to Justice”. I like to call it “Access to Firearms” but it has nothing to do with the Second Amendment.

2. Access to Justice. The basic idea is that with some forms and instructions on where to file them and how to confirm a hearing anybody can achieve “access to justice” and state their case like Jefferson’s farmer. So the court system wrote some forms and gave instructions on where to file them.

Unfortunately, as it is often said, Thomas Jefferson was the last man who had a grasp of the entire body of knowledge as it existed at the time. What this means to the pro se litigant he cannot possibly grasp what he is getting himself into.

Well, yes, you can get yourself in front of a judge. You can get yourself behind the stick of an aircraft too after reading the instructions on the internet on how to fly, but it is not a good idea. airplane crash

3. The Results. Often this does work out. Some questions are fairly straight forward. Divorce might be simple, then it might not.

There are a lot of “what if’s”. A child support issue between two Boeing employees can be done pro se as well.They each get issued a W-2 every year from which one can calculate monthly income and feed that data into a child support software to produce a result. Done deal right?

What if one of them doesn’t work for Boeing? What if he is self employed? Things get complex. I can say for sure the pro se litigant will not be able to fashion the court order that will equitably divide the Boeing pension in a way the company will recognize and follow it.

4. Too Close to the Problem. The other thing a lawyer does for a litigant that he cannot do himself is achieve some degree of objectivity about his or her case. Is it really a good idea to rush into court guns blazing? Are you sure the judge is going see things the way you do? courtroom antics

Maybe you can have a lawyer look at what you’re doing and see if it is alright. But then what if you botch the hearing by saying something that erodes the presumption that everyone comes to court in good faith and a bona fide dispute that requires a consumption of that most precious of commodities, judicial time?

How often have I seen the pro se litigant in court with a ton of paper in front of him, obviously served on the other party and the bench earlier, with this idea that his pleadings represent some manifesto that will change the course of human events? courtroom drama

The reality is he comes off instead just as an unhappy man wasting everyone’s time and his relief is denied. There is no substitute for experienced advocacy. courtroom

5. The Outer Limits. I cannot write down here what I have learned from 30 years of practice. It is part of the secret knowledge of lawyers, but even if I had to “tell all” I couldn’t transpose into words for you Jeffersonian gentlemen farmers how to conduct your case. It is in part and art, and otherwise just the nature of experienced advocacy.

There is No Trap Door in Superior Court

There is no trap door in Superior Court. trap door

This is not vaudeville, “Laugh In” or some totalitarian state.
HitlerAccused 1944

When someone lies in court, the opponent has to be prepared to confront them with a prior inconsistent statement made under oath somewhere during cross examination. That is not the same as arguing with them.

argument
Don’t expect the Judge to somehow magically know when a person is lying. Clairvoyance is not a requirement to take on the robes.
clairvoyant

Every month it seems someone appears in my office with a document someone has signed under oath, or declaration swearing the contents to be the truth “on pain of perjury” and declaring they have lied!

Truth is hard to find. One mans black is another mans white.

Star trek black and white

My Dad used to say that the reason we lawyers have jobs is one guy cannot see the other guys point of view. And that is why there are no trap doors or sudden death in civil or criminal law.

Modern fact finding is an advanced, yet frustrating concept. It takes time, and eventually there is some result. Better this way than by popular sentiment, strong man leadership or mob rule. French sloganguitene

Juror Number 12 Never Returned, No She Never Returned

I read an article in my hometown newspaper today about juror misconduct leading to the guilty getting away with crime.

In one case the jury had deliberated for 2 hours and decided to take a break. Juror #12 never returned, the entire trial was over with no verdict, a mistrial. Now the state has to decide whether to spend the states resources to prosecute or cut the accused a deal. I am betting on the latter because that is what happened in another case of juror misconduct.

In the second case the accused was charged with a sex crime against his own daughter. The juror decided to conduct his own internet research on the nature of these cases at home during the trial. This effort to enhance what competent evidence was adduced at trial cost the state the verdict and meant the 6-year-old would have to testify all over again. After all the man has a right to face his accuser, twice it seems.

Instead the guilty plead to a lower charge and will spend about a third of the time in prison he would have otherwise spent.

 We doctors of the law spend a lot of time with the Rules of Evidence. We are careful about making sure the evidence is trustworthy, and candidly, we don’t really need any help. Some of the least trustworthy evidence I have seen is what someone decides to post on the internet, free from the vigor of cross-examination.

Like the Rules of Evidence, our system of laws has been developed over generations to be as fair and competent as possible. We need 12 good citizens to believe in that system and make a decision based on what they hear.

But good citizens seem to be in short supply. We are apparently so full of our rights we need not care about our civic duties.

Meanwhile I hope Juror #12 had a good afternoon because no one else did, she never returned and her fate is yet unlearned. It is good I am not deciding what to do about Juror #12.

Dont Take The Hearsay Rule Personally

I have clients that do this.

They come into the office, relate a story and declare a conclusion. I lean back in my chair, review my notes and I tell them about 2/3rds of it is inadmissible as evidence. This is not well taken, like I am telling them they are unable to relate what they heard accurately. Well I’m not, but the hearsay rule is.

The rule reads something like this:

No statement, made out of court, shall be admitted into evidence for the truth of the matter asserted.

What?

Lets break it down: HEAR. You hear someone something,  assume it is true, then turn and then SAY it to someone else like a Judge and ask him to assume it is true too.

Example: “John told me the light was green when I went through the intersection”. Using this statement to prove the color of the light is hearsay. My clients will then  come to Johns defense, as if he is being accused of lying, which really confuses the issue.

It’s so much better if you actually saw the light. “I saw the light was green when I went through the intersection”. Not hearsay.

It’s just remarkable how often I interview a witness or a client and find most of what they have to say is based not on their own first hand knowledge, what they actually saw but instead a mass of hearsay, peppered with preexisting judgments about the actors involved and a personal agenda.

Hearsay. It’s an old rule, but a good rule. Please, don’t take it personally.

Evidence : As Seen on TV

There are no rules of evidence on television but that is where most folks learn to practice law.

On television lawyers can do anything, present anything and say anything and the judge always follows the script. The problem of evidence in real courtrooms is that this is not television and what may be admissible in fiction may not be admissible in a real court.

If you think about it Rules of Evidence are important so the fate of people and their property are not just a question of emotion or prejudice or the right scriptwriter, and instead their fate is based on what is reliable, or authentic, or can withstand a good questioning.

People come to me with their opinions and declare it to be evidence. Bits of paper that may support their position become facts set in stone when handled by them, but go up like so much smoke when marked by the clerk, offered as evidence then objected to on any number of basis; hearsay, authentication, the best evidence rule, the list goes on.

Then they get mad. Well fine, be mad, but what you see on TV is not evidence.