TRIAL BY CHECKLIST
July 5, 2010 § 23 Comments
Some years ago an old Chancellor complained to me that we were being reduced to “trial by checklist,” what with all the cases being handed down that spelled out factors that the trial court must address in adjudicating certain issues. Over the years, those so-called checklists have multiplied, so that Chancellors are required to consider and address factors in determining:
- Child custody
- Equitable distribution
- Periodic and rehabilitative alimony
- Lump sum alimony
- Grandparent visitation
- Separate maintenance
- Modification of child support
- Adverse possession
- Attorney’s fees
Over time, I will be posting these factor “checklists” for your use.
Remember that these factors are the ones that must be decided by the judge in order to decide your case. In essence, the factors are the elements of the case that will determine its outcome. If you are not putting on proof as to each factor that applies in your case, you are running the risk that the Chancellor will find that there is not enough evidence to rule in your favor.
Practice Tip: When trying a case involving any of the foregoing issues, have a list of the factors applicable your case at hand, and methodically cover them in your questions for the witnesses. Give some thought to questions that will best develop evidence that will support a finding in your client’s favor for as many factors as possible, and how to minimize the impact of factors that are not in your favor.