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Welcome to “The Art of Evidence!”

May 22, 2011

Welcome to my summer 2011 Evidence class at the  Charleston School of Law.  If you’re a student in the class, you need to be reading these posts carefully, and if you want to comment on one – go ahead.  If you’re a judge or practicing lawyer who tries cases, please share your comments so we can all learn from your perspective!

Why “The Art of Evidence?”  Isn’t evidence an area of law based on rules?  Well, yes, that’s always the starting point, but like all law, evidence is really about people.  Evidence is the art of writing and talking to judges and other lawyers in order to accomplish the goal of a client.  The law of evidence has little meaning until it is applied by lawyers and judges to facts in a trial dealing with real issues in the lives of real people.  Evidence is about thinking, and strategizing, and thinking about strategizing!  In the end, a lawyer stands in a courtroom in front of a trial judge and makes an argument – for or against the admissibility of the evidence – and the judge makes a ruling.  Evidence is all about that moment – when the trial judge exercises his or her discretion – and rules.  The lawyer has either won or lost an important struggle – for a client.  At that point, in somewhere above 95% of the cases, the issue is over.  As the Seventh Circuit famously stated about the chances of winning on appeal after losing an evidence struggle at trial:

The district judge has a particularly wide range of discretion in ruling on the admissibility of evidence.   Indeed, we have gone so far as to declare that appellants who challenge evidentiary rulings “are like rich men who wish to enter the Kingdom; their prospects compare with those of camels who wish to pass through the eye of a needle.”

Smith v. Great American Restaurants, Inc., 969 F. 2d 430 (7th Cir. 1992) (quoting United States v. Glecier, 923 F.2d 496, 503 (7th Cir. 1991) (citing Matthew 19:24)).

We’ll talk more about this later.  For now, I’m just glad you’re in the class!  We’re going to learn a lot – together – about how lawyers use the law of evidence to help real people.  It’s an Art!  Stay tuned!

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2 Comments leave one →
  1. May 23, 2011 1:13 pm

    Judge —

    Truly looking forward to following your new blog. Even for an old professor, it is never too late to learn something both new and useful. And, merely for the record, a genuine thanks for teaching again at the Charleston School of Law this coming summer. With the kindest personal regards, I remain,

    Stephen Spitz
    Who, upon information and belief, purports to be a Professor of Law
    Charleston School of Law
    Charleston, SC

  2. July 1, 2011 12:43 am

    Judge
    This wil be a first for me. Believe it or not, I have never blogged with the Chief Judge of the Court of Appeals. I can check it off the bucket-list. In fact, I am pretty sure this is my first blog ever, so be patient with me.
    If there is one thing I have learned over the last 15 years, it is that you never really know all there is to know about evidence. In fact, just last week I had a Magistrate Judge overrule my objection because it was “argumental”. I didn’t even know that was a word. If it is, I’m not sure how not to be “argumental”.
    Art of evidence is a great title and, I liked what you had to say about the practical reality of a trial. As a criminal defense lawyer, I try to ask myself two questions before I object: Can I? Should I? In other words, if it doesn’t hurt my theory of the case, why do I care. I think you pay a price with a jury every time you object. The debit is even greater when your objection is overruled. The same is true when it is your evidence that is being questioned by the prosecution. Get two or three objections sustained or fail to get in a crucial piece of evidence and your client won’t walk out of the courtroom.

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