By Judge Audrey Headrick, Chattanooga

“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”  –John Adams

Have you ever asked anyone how they knew a particular fact, and they responded, “Oh, come on. Everybody knows that.” Well, in certain situations, the Court can say that, too. It’s called taking judicial notice.

In Counts v. Bryan, the Court of Appeals generally defined judicial notice as “a judge’s utilization of knowledge other than that derived from formal evidentiary proof in the pending case.” Taking judicial notice is discretionary and can occur at any stage of the case under Tennessee Rules of Evidence 201(c) and (f). Subsection (e) states that a party can request the opportunity to be heard on the appropriateness of taking judicial notice. Further, the hearing request can occur even after judicial notice is taken.

A court must exercise caution in taking judicial notice; it cannot be taken on just any fact. Rule 201 governs the types of adjudicative facts that qualify for judicial notice. Subsection (b) provides that “[a] judicially noticed fact must be one 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.”

The Workers’ Compensation Appeals Board has discussed judicial notice just once since the Reform Act in Gueye v. Federal Express Corp. They wrote that the effect of judicial notice “is to deprive a party of an opportunity to use rebuttal evidence, cross-examination, and argument to attack contrary evidence.” The Board concluded that for that reason, trial courts must proceed with caution in taking judicial notice of prior interlocutory testimony or previously admitted exhibits.

Rule 201 doesn’t definitively state which facts will be judicially noticed. However, case law gives some guidance.

For example, in Total Garage Store, LLC v. Moody, judicial notice of information from Google Maps in determining the distance between two geographic locations was permissible. The Court explained its rationale: “Google Maps reflects the efforts by Google employees to provide an accurate representation of geography. The company’s business incentive to produce accurate maps is obvious. Furthermore, it is not as though Google Maps is a dubious new novelty.”

(Interestingly, Google Maps came up in an Appeals Board opinion last year regarding a request for mileage reimbursement in Gentry v. Arapazuma, although judicial notice wasn’t involved.)

In Hamlin v. Windsor Forestry Tools, Inc., a Supreme Court Special Workers’ Compensation Panel gave a few more examples where judicial notice was appropriate:

• The contents of a court’s own records.
• The location of public institutions such as state prisons.
• That a particular calendar date fell upon a Sunday.
• “[T]hat chronic alcoholism can carry with it an irresistible and uncontrollable desire to drink alcohol, and that a substantial school of thought supports the proposition that alcoholism is a disease.”

And here are a few situations when judicial notice wasn’t permissible:

• For long narratives or opinions offered by a witness.
• For facts gathered from the trial court’s extrajudicial observation of a party, or facts obtained through the judge’s own personal knowledge.
• The location of streets within a city.
• The unemployment rate of a county on a particular date, and the closing or opening of individual businesses in a particular geographic area or the qualifications for employment in that area.
• “[T]he effects upon a beholder of an unseemly display of affection.”

For practitioners reading this, what are some potential takeaways?

Remember that we live in interesting times, where skepticism abounds. Reasonable minds can and do differ about what constitutes a “fact.”

So, if you’re going to ask for judicial notice of a fact, be prepared to show that it really is a fact. For example, if you’re going to ask for judicial notice that a date fell on a particular day of the week, have a calendar handy. Or, if you’re seeking increased benefits based on a county’s unemployment rate, don’t just ask for judicial notice of the rate but be prepared to prove it with documentation from reliable sources.

And I’ll close with a fun “fact.” We all know that Sergeant Joe Friday of Dragnet fame liked to say, “Just the facts, ma’am.” Right? But he didn’t!