Some people eat, sleep and chew gum, I do genealogy and write...

Friday, December 23, 2011

Plumbing the depths of Court Records

If any of your ancestors were involved in a civil trial, there is a strong likelyhood that there is some portion or all of the trial record preserved somewhere. Almost the first thing I can hear when I make this statement is Oh, but my families records were destroyed in a fire. Well, that may or may not be true. Only the records that were actually in the courthouse at the time of the fire were lost, sometimes that event was not as catastrophic as it may appear. The courthouse was not always the only repository of the records. Don't just give up when you read about a courthouse fire, search further to see what records survived.

OK, now that I have gotten that issue out of the way, back to court trials. Here is a simplified general outline of the civil trial process with an indication of what kinds of records you might find at each step in the proceedings:

Discovery: Discovery is the legal process of finding out what the other side of case is going to present at trial. Discovery can take the form of affidavits, oral testimony, written questions called interrogatories and disclosure of documents. Historically, very little pretrial discovery was done by the litigants. People were expected to show up at trial and testify and then a decision was made. Sometimes the litigants had no idea what the other side's evidence might be. More recently, the idea of trial by ambush has been abandoned and anything used at trial has be disclosed. Until very recently, most of these disclosure documents were filed with the court. If there is any record of pretrial discovery, whether they be depositions, interrogatories or whatever, they can be a rich source of information about the parties.  Bear in mind that some (or all) of the information discovered may never make it to the trial.

Pretrial Motions: There are an amazing number of motions that could and can be brought before the trial ever takes place. If there are any pretrial motions, they should be examined carefully for statements of the facts. Sometimes the whole case is decided in the pretrial motions and the case never gets to trial. Don't assume because there was no trial that there is no evidence recorded in the court documents.

Trial: If there was a trial, look to see if there was a trial transcript. This might be a simple summary of what happened or a complete transcription of every word spoken at the trial. The trial is broken down into different parts:

Jury Selection: If any of the questions asked of the jury (known as voir dire) are preserved, then these can be helpful in understanding what the parties are trying to prove. Sometimes the potential jury members were stricken or disqualified because of their relationship to one or more of the parties. This is helpful information.

Opening statements of the attorneys: Usually can't be relied upon for veracity and fidelity to the facts. The openings are usually highly slanted one way or another, but there may be factual clues in the attorneys' statements if they happen to be recorded. If there were no attorneys, then the parties usually made their own statements and these might be more revealing of information.

Plaintiff's case: After the opening statements, the plaintiff or plaintiffs present all their evidence. If the testimony is recorded, this is one of the best places to find out what the case is about and to learn information about the parties. Witnesses will often give introductory testimony telling who they are and how they are related to the case. Each witness testifies, then the opposing side (attorney if there is one) asks questions in cross-examination. This can go on for a long time. Then the witness gets to testify some more on what is called direct testimony to clear up any issues raised by the opposing party's cross-examination. The court might allow this to happen several times.

When the plaintiff is through with his or her witnesses, the Plaintiff is said to rest his or her case.

Defendant's case: The defendant gets to do the same thing the Plaintiff did and present why the jury (or the judge) should decided against the plaintiff. Look for the same types of information that my be present from the plaintiff.

When the defendant is through with his or her case, then the defendant is said to rest and the trial is over for all practical purposes.

Closing arguments: Helpful because, if recorded, they might show what happened during the trial and summarize the evidence.

Decision or judgement: May be the only thing left in the file of the case in older cases. May or may not be helpful to the genealogist.

Now when I say simplified, I mean simplified. Some cases, especially those with multiple parties can become really complex with parties testifying out of order, witnesses showing up at different times and testifying whenever they are available. From TV you probably realize some trials go on for days or weeks or months or even years. If one of your relatives was mixed up in a major trial, there may be more information in the newspapers and in comments made in media.

The point here is that genealogical information can show up in great variety of places in the litigation process. When you find that your ancestor was in court, you should always ask, "Is there anything more about this trial?"

1 comment:

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