When a court is asked to take judicial notice of many, if not all, records of another case, and piles of other exhibits are admitted by agreement of the parties, how can the judge be expected to easily determine what is relevant and important to the parties — separate the wheat from the chaff?
The opinion issued on October 8, 2013, In the Matter of the Termination of the Parent-Child Relationship of N.Q., Je. Q., Ja. Q., and L.Q. illustrates what a court may face. The opinion noted that at the outset of the hearing twenty-four documents were admitted by the court. These included the transcript and exhibits from the previous termination hearing, documents from the CHINS proceedings, certified pleadings, criminal records, and records of services.
Part of the authority for this approach comes from Indiana Rule of Evidence 201(b)(5), which was amended in 2010 to allow a court to take judicial notice of records of a court of this state. Nothing in the N.Q. opinion states whether any witnesses were called to direct the court to specific passages within the documents or that there was any guidance from the attorneys. Perhaps there was. The challenges arise when there is no direction.
Anecdotally, some courts have requested that attorneys highlight key passages or state into the record the relevant pages and paragraphs of each document to focus the court’s attention to what the admitting attorney determines to be key to the matter at hand. Without direction, the court is left to determine what facts are relevant to the matter — and may focus on facts other than that intended by one or more of the attorneys. The opposing attorney is also put in the position of responding to all of the contents of the admitted documents, when there may be only one or two passages that are being contested.
Litigators are taught early on to carefully craft their case to lay out the evidence in a roadmap to lead the trier-of-fact to the desired conclusion. The current trend towards “trial-by-data dump” hardly demonstrates the best we attorneys can do at the trial-level or the model on how to prepare a honed record for appeal.