April 25, 2012 § Leave a comment

Starting with this post, I’m going to count down 10 common-sense practice tips to improve your chancery court trial performance. If you’re a long-time reader of this blog, some of these will be familiar. That’s okay. They bear repeating because they are inside tips on how to impress your chancellor, or at least how to present your case in a way that will help her or him decide in your favor. Some of you may find them elementary. Okay. But read them anyway as a reminder. And you just might recognize some bad habits you could work on. Here goes …


Make sure your exhibits make sense in the record.

I can’t begin to count the number of times I have seen a lawyer hand a witness a sheaf of photos or documents, admit them in a clump, and then proceed to ask the witness questions about individual items. “This is a picture of my son’s room, showing the hole in the wall.” Problem is, the judge has no clue which picture the witness is looking at, and the lawyer and witness are successfully conspiring to keep it out of the record so that a snoopy appellate judge won’t find it either.

So here’s the deal: if you’re offering a series of items like twenty photos of the former marital residence, separately put a clearly printed number or letter on the back of each one. Then ask the witness on the record to identfy them and explain what their markings are. For example, the witness says: “The photos are numbered 5 for Exhibit 5, and each is lettered separately A through M.”

That way they can all go into evidence together as a composite exhibit, and you can then question the witness about “the photograph in evidence as Exhibit 5-D, or Exhibit 5-8,” so that the record will be clear and the judge will be sure what you are referring to.

The same applies to any documentary evidence that consists of several items that will be included in a composite exhibit about which you will ask the witness questions directed to the individual items. For instance, if you have a contract consisting of 23 pages, and you’re going to question the witness about provisions scattered over several pages, make sure the pages are numbered and refer the witness to that page number for the record, or make a circle or some other kind of distinguishing mark so that the witness, opposing counsel, trial judge and appellate judge will know what you’re talking about.

Of course, none of this makes much difference at trial if you don’t comply with UCCR 3.05. That’s the rule that requires you, for every exhibit you offer into evidence, to have an original, a copy for the judge, a copy for the witness, and a copy for opposing counsel. I get grumpy whenever a lawyer wants to take the exhibit away from me to question the witness, and I don’t have a copy to follow along. A grumpy trial judge is not a good thing for your case, believe me. Always have enough copies to comply with UCCR 3.05.

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You are currently reading TOP TEN TIPS TO IMPRESS A CHANCELLOR AT TRIAL: #10 at The Better Chancery Practice Blog.


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