Friday, January 20, 2006

Caution for attorneys offering by judicial notice records of related proceedings: Supreme Court (J. McCormack) recommends referring to specific adjudicative facts in the court files for which the party requests the court take judicial noticeStrunk v. Chromy-Strunk, 270 Neb. 917 Filed January 20, 2006. No. S-04-879. In dispute whether the provision in a divorce decree requiring the spouse retaining property to pay the other spouse $75K in the event the objecting spouse argued the court could not simply admit into evidence its entire file. The Supreme Court recommends greater precision in asking Courts to take judicial notice of adjudicative facts. Cf 27-201 RRS Neb. "'[c]are should be taken by the court to identify the fact it is noticing, and its justification for doing so.'" (Quoting Colonial Leasing etc. v. Logistics Control G.I., 762 F.2d 454 (5th Cir. 1985). Thus trial courts should not simply take notice of all pleadings, adjudication, and records that were admissible in prior proceedings involving the parties before the court, especially where the record was voluminous. IN this case the court's failure to identify the adjudicated facts in the trial court file was harmless:
Here, the district court was correct in formally introducing its prior proceedings into evidence and making such evidence a part of the record. See, In re Interest of C.K., L.K., and G.K., supra; Gottsch v. Bank of Stapleton, 235 Neb. 816, 458 N.W.2d 443 (1990). It should have done so, however, by individually noticing those elements considered relevant and competent for the issues presented. Still, any error committed by the district court is clearly harmless because our review, as will be seen below, presents only questions of law. See Husen v. Husen, 241 Neb. 10, 487 N.W.2d 269 (1992). We need not decide in a de novo review whether to disregard the entire file presented in this case, because the facts contained therein are irrelevant to our analysis

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