Posted by wlansden |
Filed under general, good idea, commentary, practice tips
By Eileen Burkhalter Smith
We all know the answer to this question is “yes” for numerous reasons. I want to focus now on just one of the reasons, and an arguably minor one at that. The pleadings in a case are evidence. At trial, they can be read into the record and to the jury by a witness on direct or cross, and even by the attorney if the Court takes “judicial notice” of them. I saw this effectively done in a recent trial.
Federal Rule of Evidence 201(a) allows the court to take notice of “adjudicative facts.” “Adjudicative facts” are ones not reasonably in dispute, and capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned. Moreover, this judicial notice is mandatory if a party requests it. Fed. R. Evid. 201(d). In Tennessee, at least, courts interpret these “facts” to include “court records” and pleadings.
Imagine the effect it can have when allegations from a complaint or affirmative defenses from early in the case are read to the jury. I think a good way to avoid any embarrassment about an affirmative defense with no place in this lawsuit (or an allegation in the complaint completely off-the-mark) is to conform the pleadings to the case before trial. Better to go through the effort to amend the pleading, than to have to explain why a provision was included, perhaps years ago when the document was filed.
Currently rated 5.0 by 1 people
- Currently 5/5 Stars.
- 1
- 2
- 3
- 4
- 5