The eleventh chapter of Henry G. Miller's On Trial, which I review briefly here a few years ago, is about the dirty tricks some lawyers try to pull at trial: slipping a trial brief to a judge without sharing it with the opposing lawyer; getting inadmissible evidence in front of the jury by means of speaking objections or asides to the opposing lawyer or the judge; coaching witnesses to shade the truth; and other such acts of discourtesy, rudeness, and questionable ethics.
What should you do about these sorts of dirty tricks? While Miller suggests "antidotes" for each of his examples, he ends with the following advice, which nicely sums up all of his suggestions:
Dealing with dirty tricks is never easy. There is no one right way. Judgment helps. Experience helps. Our choices vary case by case. Sometimes a sidebar conference, another time a motion in limine, and always an assignment to an effective judge is helpful . . . Talk to the judge. Most want to be fair. Make a record, object, protest, take exception, cross-examine. Motions to strike or for instructions to disregard or for mistrials are among our options. Be brave, be courteous, be professional, be calm, be alert, be bold.
This good advice will come in handy in a variety of situations at trial.
Is tampering with court records by replacing an offending brief with a "new and improved" backdated brief considered a dirty trick? What if opposing counsel then files a new brief supported by the "new and improved" brief? Let me make that clear, over a month ago opposing counsel filed a memo in support of a motion. A month later opposing counsel had the clerk replace the month-old brief with a "new" brief that was backdated to appear as though it was filed the same day as the old brief. Repetitious? Yes. Many people say it can't be done. Say what they want, it was done in this case. Of course, no one would know except counsel inadvertently filed emails with his brief. The emails detail what was done. Want to look it up on PACER?
Angel Factor
Posted by: AngelFactor | April 18, 2006 at 10:09 AM
Angel Factor: I've seen lots of lawyers file "new and improved" briefs, but these are usually in the form of "supplemental" briefs. The original brief stays in the file. Even if the new brief is almost identical--i.e., it's got the same title but is refiled in order to correct an error or something--the orginal brief stays in the file, in my experience.
Posted by: Evan | April 18, 2006 at 10:30 AM
What proof is there that a factum was filed with the court? In terms of the court clerk's honesty?
Posted by: angela moore | May 01, 2006 at 06:05 AM
Question: in a case against a lawyer, the lawyer specifically requested that he be allowed to withdraw his documents from the file, presumably to protect the privacy of the people whose names were contained therein. the judge agreed. However, thereafter other documents by opposing counsel were presented, which happened to also contain the names of the parties whom the lawyer was trying to protect. The attorney did NOT request to have these documents omitted from the file -- yet coincidentally, ALL documents that contained the names/personal information of the attorney's friends have been removed. I assume it was the attorney himself who did this, or perhaps his counsel.
What are the rules that apply to tampering of court files, and whom should be contacted -- the disciplinary commission?
Posted by: SusanS | November 07, 2007 at 04:21 PM