If more family law attorneys handled appeals they would likely consider using judicial notice during their trials. Judicial notice can be used to draw the trial judge’s focus on things happening in the courtroom and allow the appellate courts to consider such activity on appeal.
Judicial notice, Rule 201, SCRE, is the procedure by which an attorney can ask a trial judge to take notice of a fact which is “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
I often ask judges to take judicial notice of portions of prior orders or affidavits. I have asked judges to take notice that a particular date is a particular day of the week–useful if one is trying to prove who had physical custody of a child on a particular day and the order references days of the week. However, one can ask the court to take judicial notice of things that occur within the courtroom.
As an example, if a litigant is habitually late to court over a multi-day trial, one can ask the court to take judicial notice of when that litigant arrives to court. Absent a request for judicial notice, this fact would not become part of the trial record. Asking the family court to take judicial notice reminds the family court to note the litigant’s tardiness. This is relevant on how respectfully that litigant treats the court. In custody litigation, it may also corroborate concerns about that litigant’s ability to get children to school or other events in a timely manner. Absent a request for judicial notice, the judge might not consider this fact in his or her deliberation and the appellate courts would not be aware of this litigant’s habitual tardiness.
In-court judicial notice can be applied to a litigant’s or witness’ behavior. An outburst or hand gesture that would not appear on a testimony transcript may still be relevant on the issue of credibility. Ask the court to take judicial notice if this happens.
Judicial notice can be used creatively. At my most recent custody trial, a pro se, and allegedly indigent, litigant showed up for the last day of trial in Christian Louboutin shoes. I asked the trial judge to take judicial notice. He wouldn’t: he didn’t know what that shoe brand was. However, the litigant volunteered, “I used to be married to someone very wealthy and have a lot of shoes that are worth a lot of money…” The court made that a factual finding.
Judicial notice requests regarding in-court actions are limited only by an attorney’s thoughtfulness and power of observation. To the extent such requests can generate helpful factual findings, it can help with both trial results and the record on appeal.
Can I ask the judge to take judicial notice of the opposing counsel violating my ADA rights and the courts approval of my ADA rights? Also the fact that opposing councel is testifying when she isn’t allowed to and has no first hand knowledge of anything she is accusing me of?
Not to be hard on you but did you read the blog before you wrote this question? Did this violation of your ADA rights happen in court? How would a judge have personally observed this violation? Is this ADA violation generally known within the territorial jurisdiction of the trial court? Is this ADA violation capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (I assume opposing counsel would question it)?
You can try to prove this ADA violation (assuming it’s somehow relevant). You can object to opposing counsel testifying. But nothing in your question makes this appear like a situation in which judicial notice applies.