JUDGING IN THE BLIND

August 2, 2010 § 5 Comments

Is this you?  Your client, Otis, is on the witness stand.  Otis is testifying about his finances from Exhibit 2 in evidence, which is his Rule 8.05 financial statement — $350 a month for groceries, $100 for entertainment, $360.48 car note, and so on — and the only ones in the court room who are looking a copy of at his Rule 8.05 financial statement while he testifies are Otis, you and the lawyer on the other side.  You glance at the judge, who is sitting there staring off into some faraway void, eyes glazed, his mind drifting off into starry space where Otis’ crucial testimony will never penetrate.  The judge is missing the most important evidence in your case!

Where did you go wrong?

If you answered that the Chancellor doesn’t have a copy of the exhibit about which Otis is testifying and so is deprived of the most potent tool you have for the judge to follow and later recall Otis’s testimony, you are absolutely correct.  Give yourself a gold star and a pat on the back for a correct answer to this quiz.  Give yourself a big, fat F for your trial technique. 

Uniform Chancery Court Rule 3.05 states that, “Unless excused by the Court, it shall be the duty of an attorney to distribute copies of any exhibits to the Court and opposing counsel when offered.”  That includes the Rule 8.05 financial statements.

Some attorneys not only offer the exhibit; they also offer the court a separate, extra copy for the judge to mark up.  That’s a pretty shrewd practice. 

If you aren’t making sure that the court has the original exhibit or a copy when you ask a witness about it, you are asking the court to judge your case in the blind.  Put yourself in the judge’s shoes:  Without the exhibit, you are asking the judge to listen to, comprehend, copy down and digest literally dozens of figures, often delivered in rapid-fire, machine-gun fashion, when the figures are right there on the exhibit, and the judge could be following along, thoughtfully assimilating the testimony and jotting down a few helpful notes.   

The principle is not limited to financial statements.  I once had an attorney take a stack of photos in evidence from the bench, present them to the witness one by one, and ask the witness to describe and make observations about each.  To this day, I have no idea what the witness was talking about.  Had I had a separate copy, I could have looked at each photo simultaneously with the description, and perhaps that would have influenced the outcome of the case.

A week does not go by that I am put in the position of judging in the blind, and it is always to the detriment of the client.  How do you expect the judge to get the benefit of your client’s testimony about her financial statement or other exhibit if you take the document away from the judge before she testifies about it?

A variation on this theme occurs when the lawyer actually begins questioning the client about the financial statement and the witness, for crying out loud, does not even have a copy to look at.  That’s like sending the poor client into a knife fight without a knife.      

I have actually begun stopping trials and ordering attorneys to comply with Rule 3.05.  The lawyer who complies with Rule 3.05 not only appears to be prepared, professional and effective; she is prepared, professional and effective.  Surely you don’t want to be embarassed by appearing unprepared and clueless.   

Practice Tip:  Always have the original and FOUR copies of all exhibits.  That’s the original for introduction into evidence, copy one for yourself, copy two for your client, copy three for opposing counsel, and copy four either for the opposing party or for the court to mark up.  Copies are cheap, compared to cost to your client of not having them.

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