Going outside the record.

• Jurisdiction: United States

Section 82. Going outside the record.—It is permissible to go outside the record in these instances:

(i) As to anything in the realm of judicial notice—and in some courts that is a broad domain indeed.¹²⁷ Remember that judicial notice means that no evidence need be presented; consequently, even on motion to dismiss, counsel may properly hand up, as an exhibit for the convenience of the court, matter that may be so noticed. This may seem too elementary to be mentioned, nor would it have been, but for the circumstance that the Supreme Court in a very recent case was required to reaffirm the principle.¹²⁸

(ii) In the Supreme Court of the United States, as to administrative practice. That tribunal goes further than most other courts in receiving outside-the-record proof of administrative practice and will give due and careful weight to official letters setting forth such practice ¹²⁹—always provided, of course, that they are not simply self-serving assertions of power. Compare Section 60 (b), above.

(iii) As to anything showing or tending to show that the controversy has become moot.¹³⁰

(iv) In some courts, as to almost anything resting in official files.¹³¹

(v) As to anything in the particular court's own files.¹³²

(vi) Possibly, but sparingly, in other situations. Thus, in the Trailmobile case,¹³³ where a returned veteran was the unfortunate victim of a bitter dispute between rival unions, the Government (representing the veteran) set out in its brief—and at the argument—relevant matters that had occurred since the ruling below.¹³⁴ But that is probably the verge of the law; even there the foregoing departures from the record encountered hard going.

Subject to the foregoing, you depart from the record at your peril. The courts will not listen to details resting only in the knowledge of the brief-writer, and generally resent any such efforts to supplement the record, for this very good reason: such efforts turn the advocate into an unsworn witness for his client.

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