CHAPTER 8 TRIAL PRESENTATION AND EVIDENCE
| Jurisdiction | United States |
(Dec 1989)
TRIAL PRESENTATION AND EVIDENCE
Hinkle, Cox, Eaton, Coffield & Hensley
Albuquerque, New Mexico
INTRODUCTION
The fictional British television barrister, Horace Rumpole, once said: "Being a lawyer's got almost nothing to do with knowing the law."1 Rumpole's advice was given to a young barrister over a glass of his favorite "plonk" (i.e. red wine). Anyone who tries cases, especially to juries, would be tempted to agree with Horace Rumpole. Often the outcome depends as much on psychology and presentation as on the lawyers' knowledge of the law. Nonetheless, the presentation of evidence in an effective and persuasive manner requires that the lawyer know the rules of evidence and their application to his or her case.
The purpose of this paper is to highlight some common and not so common methods of presenting evidence, with an overview of the hearsay rule and its exceptions.
In 1975 Congress approved the Federal Rules of Evidence ("Rules"). Thirty-three states have enacted versions of the Rules in the Rule's final or preliminary form.2 Most Rocky Mountain states and states with substantial natural resource economies have adopted the Rules in preliminary or final form. Therefore, the federal courts' interpretation of the Rules will be the primary source cited or analyzed in this paper.
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STIPULATIONS AND PRE-TRIAL ORDERS
1. Stipulations — Generally.
Stipulations are much loved by judges and dangerous to litigants. Judges love stipulations because they save time. All stipulations are potentially dangerous to some party in litigation. For example, the most common "stipulation" issue is that which is often encountered at the commencement of many depositions when the deposing lawyer inquires, "the usual stipulations will apply, do you agree?" Apart from what constitutes "usual" in Aztec, New Mexico or other locations, the inexperienced lawyer who replies with a perplexed stare, "oh, oh, yeah, ok, the 'usual'" without inquiring what is "usual" may have done his client or the witness a disservice. In some venues the "usual" stipulation for a deposition is limited to an agreement that only objections as to the form of questions need be made to preserve the objection. Sometimes the "usual" stipulation extends to notice of filing. On occasion the "usual" stipulation extends to the witness' waiving review of the transcript and correction and signing. Obviously, the latter "usual" stipulation can be especially harmful in the case of an incompetent court reporter or befuddled witness. Most experienced trial attorneys respond to a request for the "usual" stipulation by inquiring what is "usual" and, if the "usual" is as described, the polite reply follows that the subject matter of the "usual" stipulation is covered by the Federal Rules of Civil Procedure or state counterparts.3
It is a rare case in which stipulations are warranted on important disputed matters. An astute trial lawyer seeks stipulations, but does not expect to gain them. Usually, most stipulations are gained concerning facts which may be easily established by request for admission under Fed.R.Civ.P.3 6. In short, they deal with facts most trial lawyers would not contest. Stipulations concerning law or applicable law made without research and reflection are especially dangerous.
If you are fortunate enough to have your opposing counsel agree to an important stipulation of fact without the introduction of evidence you may have achieved a significant advantage. However, in jury cases you should bear in mind that the stipulation
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must be effectively presented. Ideally, you should reduce it to writing, solemnly read it to the jury (with the court's permission) and have opposing counsel state agreement to its terms. On occasion the judge's reading the stipulation is effective, but only if it is clear to the jury what has occurred. Stipulations as to law are usually used in jury instructions or findings and conclusions.
The dangers of ill considered stipulations are illustrated by the following examples. Stipulations may operate to waive constitutional rights.4 A stipulation may be used in summary judgment proceedings as fully as at trial.5 Furthermore, stipulations are judicial admissions.6 As such they may be used in other actions. Some courts hold that a trial court may not disregard facts which are stipulated to by the parties, nor may the court require a party to present evidence to support the stipulations.7
Despite the force of stipulations they are not conclusive. Given good excuse a court may relieve the parties from a stipulation's effect.8 However, the excuse that "new counsel" is in the case and relief from the stipulation is warranted is not alone sufficient to excuse a party from its prior stipulation.9
2. Pre-Trial Orders.
The caveat expressed about stipulations also applies to the stipulations in pre-trial orders. However, pre-trial practice as embodied in Fed.R.Civ.P.1 6 and in the Tenth Circuit often make
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important stipulations unavoidable.10 Experienced attorneys should be able to use the pre-trial order as a tool to simplify the issues, dispense with needless evidentiary problems and aid the court in its disposition of the cause. Since most pre-trial orders come at or near the end of discovery and before the heat and pressure of trial the potential danger of stipulations is tempered by the circumstance that most pre-trial orders are drafted over a reasonable period of time permitting reflection and multiple drafts. Nonetheless, pre-trial order stipulations and recitals are a trap for the unwary. For example, a pre-trial order can alter the standard of proof.11 A party may be forced to reveal its theories of claim or defense and then may be precluded from introducing evidence on a theory which is not disclosed.12 Exhibits which are not listed in a pre-trial order may be excluded from evidence and witnesses who are not listed may be precluded from testifying.13
It is particularly important that counsel realize that a pre-trial order may be used to amend theories of recovery or defense. Alert counsel will supplement or amend the theories of the case in the pre-trial order. The pre-trial order "supersedes" the pleadings and claims presented only in the order, but not in pleadings, may be tried.14 Conversely, claims raised only in pleadings but not preserved in the pre-trial order may be excluded from the case.15 A pre-trial order should be carefully compared with the pleadings and discovery. If material differences exist, objections should be made and a record made of the objections.
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Despite the binding effect of pre-trial orders a court may vary a pre-trial order's terms for good cause in the exercise of sound judicial discretion.16
JUDICIAL NOTICE
Judicial notice is not a common method of evidence presentation. However, it should not be overlooked — especially in technical or scientific areas. Fed.R.Evid. 201 states the rule applicable to judicial notice of adjudicative facts.17
To be judicially noticed under Fed.R.Evid. 201 a fact must be without reasonable dispute because it is either generally known within the trial court's territorial jurisdiction or capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. The rule places no limit on when the court may judicially notice facts. The procedure may occur at any stage of the proceeding.18 If a party requests the court notice any important factual issue adequate notice to the court and opposing counsel is essential. A pre-trial conference is the ideal time to raise the issue.19 In civil actions the court must instruct the jury to accept as conclusive any fact which is judicially noticed.20
The most common facts of which courts take judicial notice are the contents of court records.21 However, a court may not extend
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the notice to the contents of testimony in court actions.22 Although judicial notice of foreign law is not properly made under Fed.R.Evid. 201, courts often take judicial notice of other law and foreign law under the rubric of judicial notice. More properly, foreign law proof is governed by Fed.R.Civ.P.4 4(a)(2) which outlines the procedure for proof of foreign law. Under 28 U.S.C. 1738 and 1739 proof of other states' laws and non-judicial records is one of proper authentication. In the Tenth Circuit federal courts may not judicially notice municipal ordinances but may judicially notice state laws.23
The imaginative advocate may consider use of Fed.R.Evid. 201 for judicial notice of more than mundane facts. For example, one authority has advocated judicial notice as an alternative to the per se analysis required in antitrust actions,24 noting that the United States Supreme Court has noticed complex economic and commercial facts in antitrust cases.25 Despite the obvious rejoinder that no higher court reviews the United States Supreme Court's use of judicial notice, there is precedent for the use of Fed.R.Evid. 201 in imaginative ways.
For example, in one recent case the trial court took judicial notice that law firms, engaged in sensitive securities law matters, impress upon employees the firm's expectation of confidentiality of securities transactions.26 A court has taken judicial notice that federal employees take year-end holiday vacations, causing
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slowdowns and problems in delivery of documents.27 A court has recognized the French legal system as no less fair than the United States' system.28 Prevailing interest rates have been judicially noticed.29 In the Tenth Circuit a bankruptcy court took judicial notice that a workout in the oil and gas industry in which the debtor paid 8% on a promissory note over seven years was "within the ordinary course of business terms."30
Weinstein points out that "indisputability" should not be...
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