The View from the Tip of the Iceberg

August 19, 2014 § 2 Comments

This is for the young lawyers out there.

Imagine yourself perched at the pinnacle of what appears to you to be a mountain in the middle of the ocean. You examine your environs as closely as you can, and gather that you are on a peak of ice, surrounded by miles of water. The mountain is relatively featureless, save for a few large stones here and there. The slopes descend into the sea and nothing beneath the surface of the water is visible. Everything you know about your location is what you can see. You conclude that you are on an iceberg, and you guess that there is much more to it that is hidden from you below the waterline, but you have no actual knowledge of the size or dimensions of what lies below.

That view from the tip of the iceberg is what the judge has at the conclusion of a trial in chancery.

The judge knows that there is so much more that is not in the record, but all the judge may go on is what has been revealed. The scope of the judge’s knowledge of the case is limited by the rules of evidence, the MRCP, the pleadings, the discovery, the skill of the lawyers, and the ability of the witnesses to articulate. All of those things are filters through which the facts are passed and reduced to the concentrated mass that the judge must consider in making a ruling. And the judge must make his or her ruling based only on the competent proof in the record.

Remember that you and opposing counsel know ten times or more about your case than the judge will ever know. And never forget that your client and the party opposite know ten times more about the case than they will ever share with the attorneys.

If you don’t put something into the record, the judge not only will not know about it, she can not even consider it. And I am talking about the record as in via evidence. Pleadings are not evidence. Just because you alleged a fact in a pleading does not mean that it is proven so that the judge can consider it.

As you plan out your case for trial, take a minute and imagine that view from the iceberg. Ask yourself what it is you see if you identify all of the competent evidence that you get into the record. Is it enough? Does it include all the judge needs to know? Is there enough evidence to support every factor you need to prove in order to prevail? Have you made a thorough enough record to support your argument on appeal?

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§ 2 Responses to The View from the Tip of the Iceberg

  • hale1090 says:

    The iceberg certainly applies to making a record at trial:
    Did my opponent establish the elements of his case in the record?
    Do I take a risk by not putting on that witness who might muddle the record or prove my opponent’s case?
    Will the Court make assumptions beyond what is before it and fill in the gaps?
    Icebergs are treacherous and have left me second guessing on occassion.

  • Bob Wolford says:

    New lawyers who are anxiously awaiting your bar exam scores, please read this post again, then read it again. Then, go to that little search box at the top right of this blog and enter “record”, click search, and read those blog entries. Please be respectful and courteous to the court reporter- talk deliberately, think about what you’re going to say before you say it, avoid stumbling through a question, etc. That’s called making a clear record.

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