The Nefarious Practice of Trial Briefs
May 7, 2014 § 11 Comments
The COA case of Dean v. Slade, et al., decided April 22, 2014, references a practice that I consider to be deceptively nefarious.
It’s the practice of presenting the trial judge in advance of trial with a document discussing the anticipated testimony and exhibits, the applicable law, and argument on the merits. These offerings are variously styled as “Trial Brief,” or “Trial Memorandum,” or the like.
In Dean, the content of the trial brief is described by the COA as ” … a summary of facts and the pertinent law on adverse possession.” The COA rejected the appellant’s argument that it was an improper ex parte communication because he had failed to raise it in an earlier appeal on the merits, and the court held that he could not relitigate the issue in this later appeal on other issues.
The COA did not address the propriety of this practice because that issue was not squarely presented, but it is a practice that I think needs to be addressed.
In a custody case I tried before the turn of the century, counsel opposite presented the judge at the opening of the trial with a so-called “Trial Binder” that included summaries of the expected testimony of each of his side’s witnesses, a copy of each exhibit he expected to offer in evidence, and a brief setting forth his argument on the law applicable to each contested issue. I vigorously objected, arguing that the documents included inadmissible hearsay, that some of the witnesses, some testimony, and some exhibits may not even make it into evidence, and that it was improper to attempt to influence the judge in that manner. The judge swept aside my objections, stating that there had been exhaustive discovery, and that she was sure there were no surprises. After a five-day trial, the judge ruled in favor of the other party. We appealed and the COA reversed on other grounds. The issue of the trial binder was not raised; there was enough other error that we did not need it.
A lawyer in this district told me of a recent experience he had in north Mississippi. He said that he was handed a “Trial Brief” immediately before the opening of trial, and was pretty steamed to see a certificate of service showing that a copy of the document had been mailed to the judge several days before. The trial brief included all of the same type information described above. When the chancellor opened court, the lawyer stood to voice his objection, but the judge cut him off with the announcement that he had received the trial brief, and when he discovered what it was, sealed it back in its envelope and set it aside without reading it. When his staff attorney told him that she had also received a copy, he directed her not to look at it either.
Good for him.
The chancellor’s job is to hear and consider all of the admissible evidence taken in open court, and to make an independent, impartial decision, untainted by outside information or influence. As the COA said recently in Burnham v. Burnham, “Chancellors are charged with the duty of being independent fact-finders … ” To me, these so-called trial briefs are nothing more than a naked attempt to influence the trial judge with information on the merits outside the trial that may be inadmissible and even inflammatory. I think it’s fair to say that it’s an underhanded way for an attorney to get the judge to see and possibly consider evidence that the lawyer knows he will be unsuccessful in getting into evidence at trial.
When a chancellor says, “Let it be admitted into evidence,” what she is really saying is, “I can hear or look at this evidence because it meets the threshhold requirements of the rules of evidence.” That can only be done in the context of a trial, where both sides have the opportunity to object and cross examine.
Another aspect of the experiences noted above is the ex parte nature of the communication. As I have pointed out here before, just because you hand opposing counsel a copy of the document that does not mean it is not earwigging. Uniform Chancery Court Rule (UCCR) 3.10 states in part:
No person shall undertake to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith. No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.
That reference to briefs in the rule does not alter, amend or cancel the language preceding it.
In Dean, the trial memo called into question the impartiality of the sitting chancellor to the extent that she recused herself from further participation in the case. The same can happen in your cases.
The only way that a pre-trial brief can be proper, in my opinion, is if a chancellor asks the parties for one addressing certain matters in advance of trial. Assuming it asks for argument on the law, I would think that would be perfectly permissible, because it puts both sides on an even footing. I can hardly imagine a chancellor, though, who would ever ask parties to include prospective evidence in the submission. The law, yes; evidence, no.
In my court, I would be offended by an attempt to present me with extra-evidentiary material in a matter pending before me. I believe most chancellors would agree, or at least would do as the north Mississippi chancellor did in his case. I want my opinion to reflect only what is in the record (sometimes I do a better job of that than other times), and nothing more. The old saying, “You can’t unring a bell,” is applicable here.
I wish there were an explicit ban against this practice. Maybe a rewording of UCCR 3.10 is in order.
The Better Chancery Practice Blog 
[…] Dean is the subject of a prior post wherein I excoriated the practice of so-called (pre-) trial briefs. […]
I have a complicated reaction to this.
I know lawyers who make a practice of serving last-minute (like faxes after close of business the day before trial) documents that I strongly suspect arrived at chambers before that. I think there’s all kinds of abuse of these sort of last minute things.
BUT– I know that my father wrote (and I have on occasion myself written) trial briefs. His purpose was strictly to outline the legal issues. I have heard federal judges speak positively about them. They did not argue facts, but did argue law. They were served on the court at the same time and in the same way that they were served on opposing counsel. If I thought the judge was likely to review the file prior to the trial, it might be served early enough to give him time to do so.
I do not see what is wrong with this practice.
Now, the “trial notebook” concept seems strange to me. Witness summaries? Before trial? What I have done in a complex multi-exhibit trial was create tabbed notebooks for exhibits, and then hand hole-punched copies up to the bench and to opposing counsel as they were being marked for ID. Again, that practice has been praised when used.
One practice that I objected to, strenuously, and had the judge look at me like I was speaking a foreign language, was a chancellor who would ask for simultaneous proposed findings of fact and conclusions of law AND THEN ORDER THEM TO NEITHER BE SERVED ON OPPOSING COUNSEL NOR FILED OF RECORD. This was back in the day when there could likely be reversal for adopting one side’s version, and I think it was an effort to improperly protect the record. My objection to this practice didn’t end up mattering because the judge was reversed on other grounds.
I have no problem with a memo of law or brief, pre-trial IF both parties are given an equal, simultaneous opportunity to do it.
And I see no problem with handing copies of exhibits to the judge through trial. I encourage the lawyers to do this in my court so that I can mark them up, especially 8.05 financial statements. That is very helpful, and there is no problem with it if I see them only after they are entered into evidence.
My big concern s with lawyers who want the judge to see exhibits that may never make it into evidence, and who want to show the judge testimony that may never be admissible.
I, too, have a big problem with the way you described the PFFCL were handled. I want both parties on an equal footing, and I want as much transparency as reasonably possible.
Thanks for a thoughtful comment.
I worked with an attorney once who didn’t think she needed to give the other side a copy of her trial brief. I know. Wow.
Just a couple of weeks ago a lawyer from the Jackson area called my staff attorney following a jurisdictional hearing to tell her she was sending me some supplemental information consisting of certified copies of documents I had ruled inadmissible at the hearing. The staff attorney told her not to do it. The lawyer argued that it was okay because she would copy counsel opposite. . Maybe it’s just me.
I don’t think I have to cc opp. counsel on a Christmas card to the judge, but other than that ….
If the card had cash enclosed, you must cc. (disclaimer … this is an entirely tongue-in-cheek comment not intended to reflect any reality known to me!)
A pretrial order gives the court a roadmap of witnesses, exhibits and what each side expects to prove without the extraneous material.
I agree. And both sides are given the opportunity to participate in the PTO.
Huh. Would never have occurred to me this was a problem, except for the ex parte part, but I see the point.
Rule 56 motions are supposed to be supported only with admissible evidence, but of course the parties may disagree what’s admissible. How does a Rule 56 motion & memo of law differ materially from the nefarious trial brief?
To me it’s all the difference in the world.
If the matter is to be tried, the evidence comes in via direct and cross examination subject to objection; a trial is not designed to be “augmented” with a bunch of extraneous material.
Under R56, both sides submit affidadavits and counteraffidavits in order, and both may object to the other’s submissions. Although it’s done on affidavits, there is an orderly, rules-prescribed procedure that ensures that both sides will be heard.
As a judge, I don’t any outside input. I want to base my decision on what is properly admitted into evidence. Period.