Reprise: Pleadings are Not Evidence

January 9, 2014 § 6 Comments

Reprise replays posts from the past that you may find useful today.

PLEADINGS AND THE PROOF

November 1, 2011 § 1 Comment

“It is the pleading that makes the case for adjudication, and it is the evidence that sustains or defeats it upon the final hearing.”  Terry v. Jones, 44 Miss. 540, 1871 WL 8413 (1871).

Voilà! After 140 years and a sea-change in the rules of Mississippi pleading, that ancient formula holds oh-so true in our courts. The pleadings frame the issues; the evidence admitted at trial determines the outcome.

Put another way: THE PLEADINGS ARE NOT EVIDENCE.

This immutable principle has not only for ages been a bedrock of procedure in Mississippi courts, it has also been the rock that has dashed the case of many an unseasoned or unwary practitioner.

Don’t ever assume because you have pled something that the court will take it as true. On the contrary, without actual evidence in the record, the court can not take it as true, whether it wants to or not.

I have seen lawyers leave key elements of their cases lying on the court room floor simply because they neglected to offer proof thereof. This is a chronic problem when it comes to claims for attorney’s fees, but the problem is not limited to that issue. I see Rule 59 motions more frequently than I’d like where the motion claims I “overlooked” a point, but the attorney concedes that the witness never testified about the matter. I should grant the motion, the lawyer pleads, because it was, after all, in the pleadings.

Here’s the deal: If you don’t include a properly-pled issue in your pleadings, the court can not consider it. BUT, just because it is in your pleadings does not mean it is established; you still have to put on evidence in support of it.

§ 6 Responses to Reprise: Pleadings are Not Evidence

  • randywallace says:

    Anderson, even after submitting phone logs, internet chat logs and photographs of stuff that shouldn’t have been photographed to opposing counsel prior to divorce cases being filed, I have yet to ever have a party admit adultery in an answer.

    In fact, I have yet to ever have a party opponent admit any type of fault in an answer in any type of case. Maybe my experience isn’t typical, but regardless of the facts the folks on the other side of the table from me always deny at first. Makes for interesting depositions.

    • thusbloggedanderson says:

      Rare, sure, but I can attest it’s happened. Apparently some folks just are all about “out with the old, in with the new.”

    • Anderson says:

      I see from Lawrence v. Lawrence, 956 So. 2d 251, that a partial Rule 56 motion as to grounds for divorce is not inherently improper, tho in that case the COA did find genuine issues of material fact & reversed; they didn’t say a Rule 56 motion wasn’t allowed, FWIW.

  • thusbloggedanderson says:

    … Leaving aside where the defendant admits a given averment in his answer? If the plaintiff alleges, say, adultery, and the defendant admits it in his answer, how’s that go?

    • Larry says:

      Every divorce ground, even those admitted, must be proved by competent evidence and corroborated. If the defendant admits adultery, that relieves the plaintiff of the obligation of corroboration. And an admission creates a judicial estoppel against denial. That’s my take on it. I have a docket call in 2 minutes, so this is written in haste.

      • thusbloggedanderson says:

        Thanks! From my non-chancery p.o.v., it seems like a Rule 56 motion would be in order where the defendant has admitted cause, but apparently that stuff doesn’t fly in divorces.

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