Don’t be ambushed! Prevent surprise attacks with documents or witnesses you’ve never seen before
In the world of television, just as the trial is drawing to an end, the back door of the courtroom opens and in walks the surprise witness — the person who will save the day by giving testimony that nobody expected. That, of course, is TV Land.
In the real world, such surprises are generally disallowed. In fact, in a proper courtroom trial, both sides should know all of the witnesses who may be called to testify for either party, and they should have seen all of the evidence to be presented, in advance.
To prevent surprises, be sure to dispatch a request for documents to the other side. This is often known as a “Notice to Produce Documents” or a “Request for Production of Documents.” Ask the other parent in your custody case to produce each and every document, photograph, or other item of evidence they intend to introduce at trial. This can include copies of all statements by witnesses, for example. You should also ask the other parent to list all of his/her witnesses by name and address, to disclose their relationships, if any, and to summarize what they will testify. If you don’t make these pre-trial requests for documents and information, then you cannot claim you were ambushed when the other side shows up in court with witnesses or evidence you never saw before.
HOWEVER, what if you did send out a Request for Production of Documents? What if you did ask the other side to disclose their witnesses, produce their witness statements in advance and provide you with copies of photographs, papers and other materials they intend to bring to court? If the other side fails to identify a particular witness or to supply a particular photo or document, you can object to the witness testifying or the document being shown at trial. “I object,” you will say. “This witness was never disclosed during our pre-trial request for a list of witnesses. This is unduly prejudicial and in violation of the rules.” Or you will tell the judge: “Objection. This document was not provided in my request for production of documents. It should not be allowed in evidence today.” When a party fails to produce documents or to disclose witnesses prior to trial, after being properly requested to do so, they won’t be able to slip the witness in through the back door of the courtroom.
So protect yourself. Avoid ambushes and surprises. Issue requests to the other side to disclose their witnesses and produce copies of their documents and other evidence. And keep tabs on exactly what they do and don’t produce for your review.