April 28, 2011 § Leave a comment
Not long ago an attorney asked to be allowed surrebuttal. I refused the request and quipped that surrebuttal had been deep-sixed by the MRCP.
I was wrong. About the MRCP, anyway.
Actually, the MRCP does not even mention surrebuttal. I do remember a discussion about surrebuttal in the various seminars we had around 1982-3 in preparation for the effective date of the “new” rules. The common wisdom in those sessions was that the old practice in chancery for liberal surrebuttal was going away. In the ancient, pre-rules days it was common practice to get trampled by an older lawyer who was invariably afforded one or even more “surrebuttals” that he used skillfully to repair whatever damage you had done or points you had scored in your examination of a witness.
After the new rules went into effect, that practice thankfully died out in our district, and every other one where I set foot, and since then one rarely hears requests for surrebuttal — as on that day in my court not long ago.
The matter is covered by UCCR 3.02, which provides in part:
The examination of witnesses shall be limited to the direct examination, the cross-examination, and the redirect examination concerning matters brought out on cross-examination. Counsel for either party may be permitted, on request, to inquire about new matters pertinent to the issues which may have been inadvertently omitted. Opposing counsel may also inquire concerning the same matter.
There you have it. It’s what we used to call surrebuttal.
Nowadays it arises mainly in situations where the court allows evidence in over the objection that the question is “outside the scope of rebuttal.” In McGaughy v. State, 742 So2d 1091, 1094 (Miss. 1999), the court said, “Where there is doubt as to whether the evidence is properly case-in-chief or rebuttal evidence, the trial court should resolve the doubt in favor of reception in rebuttal if: (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.”
It is error to permit the introduction of case-in-chief evidence in rebuttal where the evidence clearly should have been offered in the case in chief. Hosford v. State, 525 So.2d 789, 791-92 (Miss. 1988). But where it is not clear, introduction is within the discretion of the trial judge and will be reversed only if the decision is found to be arbitrary and capricious. Smith at 1095.
After the court has allowed in the testimony, you may request further questioning under UCCR 3.02.
To preserve the point for appeal, you need to object timely when your opponent offers evidence in rebuttal that should have been offered in the case in chief. If the court overrules the objection, ask immediately for surrebuttal or explain to the court why you will be unable to meet the evidence and how it will prejudice your client.
In the case in my court, I did not see that surrebuttal was necessary or desirable to meet anything offered in rebuttal, but it’s an interesting point that arises rarely in chancery court.
November 29, 2010 § 1 Comment
Rule 1006 of the Mississippi Rules of Evidence allows you to offer charts, summaries or calculations where the evidence is so voluminous that it would be inconvenient to develop it in the course of testimony. The procedure is simple: The originals are produced at a reasonable time and place for inspection and copying, and the court may order that they be produced in court, although introduction of the originals is not required, according to the official comment to the rule.
The advantages of this rule can be pretty significant. It can improve your effectiveness in presenting complex proof, and give you an edge over an opponent who is too lazy to avail himself of it.
Here are a few examples:
- There is a claim of wasteful dissipation of assets based on abuse of a credit card over a three-year period. There are literally hundreds of transactions. Instead of dumping the statements into evidence, prepare a chart showing yearly and monthly totals. Another chart could highlight spending trends, such as dates and amounts of casino cash advances, jewelry purchases and so on. Witnesses can then be questioned about particular aspects of the matter without laborious testimony to establish the underlying transactions.
- Six years of tax returns are relevant. Chart the income and taxes paid, or the depreciation and deductions claimed, rather than tediously poring over them.
- The other party has fluctuating income. Use charts and graphs to illustrate.
A variation on this theme is to present your client’s position in a concise written form, as, for instance, where your client is requesting particular provisions for visitation. Have the proposed visitation arrangement reduced to writing and have your client testify about the key articles. Introduce the proposed arrangements through your client.
As always, put yourself in the judge’s shoes. If all you do is put 76 credit card statements in evidence with some testimony of a witness or two, are you sure that the judge will draw all the conclusions that you want her to? If all you do is put tax returns into evidence with some testimony, will the judge in his deliberations focus in on exactly what you need to win? Which evidence is more likely to get a detailed, thorough going over: raw documents with some notes taken by the judge; or a chart that focuses the judge’s attention like a laser on the details you need?
Rule 1006 is a super tool. It lets you reduce literally thousands of words (and, consequently judge’s notes) into a picture. And we all know how many words a picture is worth.
September 30, 2010 § 1 Comment
In the 12th District, we have long had a practice of requiring the attorney to appear personally to confer with the judge in a pre-adoption conference without the adoptive parent(s) in uncontested adoptions.
Some out-of-district lawyers question why we deem this necessary.
Imagine getting your client and spouse to take a day off of work, perhaps take the other children out of school, to travel to the courthouse for the long-anticipated day. Spirits are high and festive. A new member of the family is about to be welcomed in. Or maybe not.
The judge calls you into chambers and points out that you have failed to obtain a statement from a physician, as required by the statute. Or your pleading is inadequate under the new jurisdiction statute.
So your clients’ happy day turns to ashes and you are embarassed.
With a pre-adoption conference, you get the chance to learn what you need to do to get your case in shape so that your clients’ happy occasion can truly be happy. When you file for an adoption that you know will be uncontested, call the court administrator and set up an appointment for a pre-adoption conference as soon as possible. When the judge gives you the green light, you can set it for final presentation to the court.
If you’re filing for adoption in another district, it would not hurt to ask the Chancellor for an appointment to look over your filing in advance of presenting it with your clients present.