Exhibit ? What Exhibit ? and Blankety-Blank

February 5, 2020 § 1 Comment

Two unfortunately recurring phenomena have an infinite capacity to frustrate chancellors to no end.

The first I will refer to as Exhibit ?, and I will illustrate it with a brief melodrama:

Say you have put off getting that order signed — perhaps because of a much more important (to you, not your client) golf game or visit to the spa — and now your client’s back is to the wall and needs it signed yesterday. You rush it over to the judge, who is in another county. Your order includes this language:

The Executor is authorized to execute a deed substantially in the form of the attached Exhibit A.

Next day when you call to check on whether the judge signed the order, the staff attorney says. “Oh, I planned to call you. Judge says she can’t sign it because there was no Exhibit A attached. She won’t be back in until next Tuesday. Have a nice weekend.” <Dial tone>

Exhibit? What Exhibit? I see it in pleadings, motions, orders, judgments. If it was important enough to refer to as an exhibit, then surely it was worth attaching.

The second is yet another sin of omission. Here’s your order:

The executor is ordered to pay attorney’s fees in the sum of $____________ for representation in this case. (There is nothing in the petition to clue the judge in as to what to place in that blank).

In this district we require the attorney for the fiduciary to include an amount in the petition to close or other appropriate pleading so that it will be de facto approved when the fiduciary signs it. But if you don’t do that, or attach it as an exhibit (see above) to the pleading, or somehow get it properly before the judge and in the record, don’t expect to get that order signed.

The same goes for pleadings. UCCR 2.03 says in its entirety: “No blanks shall be contained in any pleading.”



July 19, 2012 § Leave a comment

This is the seventh in a series counting 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.


Make sure you have enough copies of exhibits to comply with UCCR 3.05.

Read and follow UCCR 3.05. It requires that you have a copy of each exhibit for the court and opposing counsel. And remember that if you take the original exhibit away from the judge to have the witness use it, the judge has no clue what you are asking the witness about. So have an extra copy of the exhibit for the witness.

Some lawyers go an extra step and provide the court with a “mark-up” copy of the financial statements so that the judge can make notes directly on a copy of the exhibit during examination of the witness. That’s a useful idea.

Rule 3.05 is merely a manifestation of the golden rule of chancery court, which is “The easier you make the judge’s job, the more likely it is you will prevail.”


March 10, 2011 § 2 Comments

As a judge I can tell you it’s hard to capture every detail in my trial notes. Sometimes the witness just speaks so fast  that I stay three sentences behind, trying to catch up, and just can’t get it all. Sometimes the significance isn’t clear until much later in the trial or even when the judge is writing the opinion, and then it’s too late.  Sometimes a verbose witness will bury the critical info under an avalanche of mostly meaningless words.

Next time you have an equitable distribution case, why don’t you sit down with your client during your trial preparation and work up a spreadsheet that shows how she wants the marital estate divided.  You already have it in part with the joint property list that is included in the pre-trial order.  Why not just rearrange all those assets into the manner that your client wants them divided.   Once she identifies it, offer it into evidence, and the judge has the graphic depiction of how your client wants the case to go rather than just a gob of words.  Instead of devoting your time (and the judge’s wayward attention) to a painstaking item-by-item approach, you can zero in on how your client justifies a greater share of the marital estate, and concentrate on the several important items she just has to have.  With the preparation of a simple document you will have sharpened the focus of your case and made it more efficiently compact at the same time.

Or, if your client wants the  financial assets divided a certain way, you can show the division he wants AND add a column with reduced values for tax penalties, etc., assuming you have that proof in the record.

Or, if your client has a claim for reimbursement of medical bills, why not create a table or spreadsheet itemizing all the charges, showing dates, providers, amounts charged, amount paid by insurance, and balance, with totals.

Or, if your client wants specific visitation, why not spell it all out in a proposed schedule.

Here’s how you get them in:

You:  Let me show you a document and ask you what it is.

Witness:  It’s a table showing [my proposal to divide the marital estate/the financial assets and how I want them divided/a summary of the medical bills/my visitation proposal].

You:  Does this table accurately reflect the [marital assets/financial assets] that are already in evidence?  Or: Is this the schedule you wish the judge to adopt? 

Witness:  Yes.

You:  Now, let me ask you a few questions about this … 

When you put all those words into an exhibit, you are saving the judge all the work of trying to make notes of them at trial, and you are making sure that everything you want to say won’t be missed by the judge.  The judge will have a document to look at rather than having to ferret that information out of his sheaf of notes.

In other words, the easier you make it on the judge, the more probable it is that your client will be very happy with the outcome of the case and the job you did.

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