"is That a Fact?" - Evidence and the Trial Lawyer
| Publication year | 1999 |
| Pages | 19 |
| Citation | Vol. 12 No. 4 Pg. 19 |
Bruce S. Jenkins, J.
Copyright © 1998 Bruce S. Jenkins All rights reserved.
Ed. Note: The following was a speech given at the Evidence Seminar, sponsored by National Practice Institute and Utah State Bar, December 11,1998.
I am happy to participate with Professor Rossi to talk with you and think with you about the subject of evidence, and particularly, evidence in the courtroom. Some of my clerks are admirers of Professor Rossi - one, I think, a fugitive from his law school - and all are so high on him as a presenter, that when I was asked to help a little with this institute program, I didn't have the courage to say "no," although in my more mature years I am getting better at saying "no." My clerks really thought I could learn something if I came, and quite frankly, I thought I could, too.
So, here I am.
And it is evident - e-vid-ent - vid, like the vid in video, from videns, to see - it is evident, plain to see, that I am here to talk about evidence, that which is plain to see and, quite frankly, to talk about some things which are not so plain, and indeed are not seen, but which are still called evidence, and are used as proof in the courtroom to resolve problems contending parties are unable to resolve for themselves.
As we have viewed the struggles of the House Judiciary Committee these past few weeks, I am oh, so thankful for the court
Honorable Bruce S. Jenkins received his Bachelor of Arts from the University of Utah in 1949, magna cum laude. He received his Juris Doctor from the University of Utah College of Law in 1952. At age 31 was appointed a member of the Utah State Senate and was twice reelected by wide margins. During that time he was Minority Leader of the Utah State Senate, and was elected President of the Utah State Senate. Appointed Bankruptcy Judge, United States District Court, District of Utah in 1965, and thereafter twice reappointed. Nominated as United States District Judge in 1978 by President Jimmy Carter and confirmed by the United States Senate. Became Chief Judge, December 20,1984. structure, the rationality of the court process, and the relative calm of the courtroom. The struggles of the House Committee contrast the cumulative experience of the courts (now well over two hundred years in this country) with the relative inexperience of the House Committee in gathering information. The Committee investigates - "searches into so as to learn the facts" - doing so without calling a single fact witness and without agreement even as to the criteria for the umbrella term "impeachable offense." They do so with what appears to be almost a "genetic pre-disposition" preventing any member from asking a question without a four-and-a-half minute "preface," statement of position, or "observation."
The committee process highlights the fact that the three great departments of government go about their work in different ways, and as the French commentator observed about the differences between men and women, "vive le difference."
The end product of what we as lawyers and judges do in court - findings, judgment, dispute resolution - are generally accepted by the American people because of the respect for the process which we follow in arriving at a result, in reaching a legal conclusion.
I like to think that the process is rational, fact-driven, value-rich, and respected for the integrity of its participants - lawyers, judges, citizens-jurors, witnesses - and the willingness of all to take the necessary time to think. Thinking is a professional duty
Assumed present status as United States Senior District Judge on September 30,1994. In 1987, he was appointed by Chief Justice of the United States as a member of the Judicial Conference Committee on the Administration of the Bankruptcy System and was reappointed in 1989. Former member, Judicial Council, Tenth Circuit. Former member, Council of Chief Judges, Tenth Circuit. Past President of Federal District Judges Association, Tenth Circuit. Secretary and member of Executive Committee, Federal Judges Association, a nationwide association of nearly 800 federal trial and appellate judges.
He is married to Margaret Watkins. They are the proud parents of 2 girls and 2 boys.
He is an interested photographer, a student of history and language, and a collector of books. each lawyer owes his client, the court, and himself. An essential part of the litigation process is thought.
I like to tell students of law with a particular interest in litigation that before they ever come to court, they should answer to their own satisfaction the following simple {simple - not easy) questions:
1. Is there a problem?
2. What is the problem?
3. Whose problem is it?
4. What do you want the court to do about the problem?
5. How do you want the court to do it?
6. Why do you want the court to do it?
If your client really has a problem, and you define with precision what the problem is, and you tell and show the court what the problem is and what help you want, and why, then you can in good conscience send a bill for results achieved or services performed, and rejoice in the peacefulness of the process you took to the courtroom and not the streets.
Although upwards of 90 to 95% of civil cases settle or are resolved before a formal trial proceeding ever starts, a jury seated, opening statements given, and witnesses called, all cases have the potential to "go to trial" and thus all of us need to be acquainted with the manner in which we can "make evident" to the fact finder the justness of our client's position when our l-in-10 case does indeed to to trial.
While disputed, unclear, or unsettled legal propositions may be "the problem" which brings you to court for help, today we are not talking about those problems except indirectly.
Today we are talking...
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