April 21, 2015 § 10 Comments
You old timers know of my fondness for what I refer to as “Checklists” — those lists of factors that apply in various cases in chancery court. Newcomers may not be acquainted with the concept, so I republish this list of checklists every now and then to spread the word. It’s a concept I’ve referred to as “Trial by Checklist.”
The idea is that the chancellor is required to address various factors in various types of cases. If you are not putting on evidence to support the judge’s findings of fact under each of those factors, then you are: (a) losing the case; and (b) failing in your duty to represent your client, as well as wasting the court’s time; and (c) committing malpractice.
Here they are:
And here are two checklists that will help you in probate matters:
My recommendation is that you keep each checklist, with citation of authorities, handy, either in a notebook or accessible in your computer where you can photocopy or print them out each time you have a case involving them. For instance, in a divorce case, you might need the checklists for child custody, child support, equitable distribution, and alimony. then, as you prepare, tailor your proof to make a record as to each factor. At trial, you can use each checklist as a template for presentation of your case.
In my courtroom, I keep a notebook on each side of the room with every checklist for lawyers to have handy in a pinch.
Bear in mind that if the judge does not have the proof to support her findings on the applicable factors, your case is in jeopardy on appeal — that is, if the judge somehow ruled in your favor in the first place.