Marshalling the Evidence in Litigation – Part 7

Keith B. DunnaganToday, we continue with our series on litigation and we look at the process of marshalling the evidence. This is the process where evidence relative to the proof required to prove or a disprove a claim comes in to play. It requires the analysis of both sides of the controversy to understand where the proof may lie and how to best gather it.

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Marshalling the Evidence in Litigation – Part 7

By Robert J. Enos, Esq.

Photo of gavel and scaleIn part 6 we examined the use of dispositive motions to litigate issues prior to trial, a mechanism to reduce the number of issues that a trial may be needed to decide a case. Today, we take time to examine the process gathering evidence.

In litigation “marshalling the evidence” requires thinking through both sides of the case–the client’s case and the opposing parties’ case–to determine what items of proof may be needed at trial to prove your case and to disprove your adversary’s, locating that proof and securing its admittance at trial.

Attorneys usually begin marshalling evidence with documents and information obtained during pretrial investigation and discovery. Obviously, not everything obtained during discovery is admissible at trial. In reviewing discovery materials, therefore, it becomes necessary to determine the elements of each claim or defense that may be asserted at trial, identify each fact obtained through discovery that may be relevant to prove or disprove such claim or defense, and determine its admissibility in evidence.

The following considerations pertain to different types of evidence obtained through discovery. Documents: Each document obtained through discovery should be reviewed under the above guidelines. Exhibits: Documents to be offered in evidence should be organized in either subject matter or chronological order (or both) and listed on a proposed Exhibits List. Copies: At least five (5) copies of each proposed exhibit should be prepared (for the court file, the judge, opposing counsel, your own use and, if necessary, the witness or jurors). Witness folders: If a witness will be used to lay the foundation or otherwise assist introduction of a document into evidence, a copy should also be placed in that witness’ ‘witness folder. Enlargements: If documents are to be used in examining witnesses or in arguing to the judge or jury, consider whether they should be converted into transparencies for overhead projectors or enlarged photographically or electronically. Depositions: Review each deposition transcript to locate the statements necessary to support or defeat an element of a claim or defense. The admissibility of each statement must then be determined (i.e., relevance, foundation, hearsay, privilege, etc.). Tangible evidence or land: Photographs, videos or other recordings obtained during testing or inspection of tangible evidence or land may be admissible at trial. The particular concern is usually the authentication of the photograph or recording sought to be introduced into evidence.

Attendance of Witnesses: A civil subpoena is the procedure to secure attendance of witnesses at trial. The subpoena may also require witnesses to bring books, documents or other things under their control for production as evidence. Opposing parties and agents: In order to prove one’s own case, it may be necessary to have the opposing party (or its agents and employees) testify. If the opposing parties have been deposed, their deposition testimony may be read into evidence for any purpose (no showing of unavailability is required. But counsel may choose to call the opposing party or its agents and employees to the witness stand for tactical reasons. If so, to assure their presence when required, counsel must serve a Demand to Appear at Trial reasonably in advance of trial. Calling the opposing party as a witness may be advantageous where he or she is likely to make a poor impression on the judge or jury (because evasive, easily impeached, etc.) or where you know you can elicit admissions or other favorable testimony. In such cases, having the opposing party testify in person is better than using his or her deposition.

The court may in some cases take judicial notice of ‘adjudicative facts’ at the time of trial. An adjudicative fact is one not subject to reasonable dispute in that it is either generally known within the trial court’s territorial jurisdiction or capable of accurate and ready determination ‘by resort to sources whose accuracy cannot reasonably be questioned.

The litigation attorneys at BPE Law Group have significant experience in complex business, real estate and estate administration litigation. The diverse experience allows BPE’s litigators to look at multiple approaches to a lawsuit to determine the best course of action for their clients. If you find yourself in need of litigation assistance you should retain competent counsel to assist. BPE Law would welcome the opportunity to serve.

The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented clients in hundreds of lawsuits and discovery is a critical component to success in litigation. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at or Robert at Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.