Gotcha! Surprise Evidence Doesn’t Actually Exist.
We all have seen legal dramas where someone pulls something out of a hat and a surprise witness or surprise piece of evidence comes in to save the day for the side that appeared to be losing. This makes for good TV or movie scenes, but never truly happens in an Arizona court room.
Arizona, like every other state, has strict “Discovery Rules” that require each side to “disclose” to the other side the names of all witnesses intended to be called at trial, and the substance of their testimony, and the identification of all physical evidence intended for use at trial. This is to eliminate the element of surprise, allow the parties to fairly evaluate their positions, and decide whether trial or pre-trial resolution by settlement is more appropriate. If it isn’t disclosed 60 days prior to trial, it can’t be used in the courtroom.
Arizona led the way 25 years ago by modernizing the rules of discovery and disclosure. Judges now hold scheduling conferences at the beginning of litigation to set strict deadlines for when witnesses in each category must be disclosed, how many witnesses can be deposed, and time limits for the production of documentary evidence. Absent agreement of counsel or an order from the court, these timelines must be met. An opposing party no longer has to “ask the right question” to find out what arrows are in the other side’s quiver. Each party has a continuing obligation to provide relevant information, good or bad to the other side. Arizona’s discovery and disclosure rules have become a model for other states to follow, including Federal Courts.
The element of surprise no longer exists in civil litigation. We all know what will be coming our way and from whom. “Objection, lack of disclosure” is rarely heard as the lawyers are careful to disclose everything, good or bad.
Full disclosure leads to most cases settling prior to trial as each side is aware of the strengths and weaknesses of the case and can make an informed decision what is best for the clients involved in the case. The skilled lawyer makes full disclosure and holds nothing back.
The next time you see a TV or movie scene involving a surprise witness or piece of evidence, realize this is for entertainment purposes only. The element of surprise no longer exists in actual practice.
The Rockafellow Law Firm prides itself on making full and complete disclosure in every case in a timely and efficient manner. “Hiding the ball” is a thing of the past.