One of the Court’s most important roles is to prevent Trial by Ambush.  Those episodes of Matlock where the secret witness or the real murderer are called to the stand at the last-minute and nobody knew, except for Ben, may make for good TV (or not), but it is not how it really is.

Courts and the Rules of Procedure require full disclosure.  All witnesses must be disclosed prior to trial, all evidence, exhibits, and even persons who may not be witnesses, but that know about the case should be disclosed.  While it is not uncommon to receive documents or learn of witnesses at the last-minute, the Court may prevent those from being used.

Rule 26 of the Mississippi Rules of Civil Procedure governs the procedures that litigants must follow regarding discovery methods. 26(f) obligates a party to “seasonably” supplement that party’s responses to interrogatories and other discovery if the parties know the answer has changed or circumstances are such that a failure to amend is in substance a knowing concealment. M.R.C.P. 26(f)(2).

A failure to seasonably supplement responses may prevent this “new” evidence from being used. If a party was specifically asked for the documents and tangible things they intended to use at trial, and new information was not produced,  the Court can prevent this Trial by Ambush.

A Court’s most basic duty is to provide for a fair trial and to prevent trial by ambush. “We have long been committed to the proposition that trial by ambush should be abolished, the experienced lawyer’s nostalgia to the contrary notwithstanding.” Harris v. General Host Corp., 503 So. 2d 795, 796 (Miss. 1986).

These surprises leave no meaningful opportunity to challenge them or to investigate the information they purport to contain and summarize.

Matthew Thompson is a family law attorney in Mississippi and warns client that if you got it and intend to use it, you got to disclose it.

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