Tweed New Haven v. Board of Zoning Appeals for the City of New Haven (2010)

DECISION ON MOTION TO STRIKE

What is attached to the plaintiff's reply brief is a sketch of the two subject lots merely included to illustrate a point about access to Burr Street.   It is simply a demonstrative aid to the reader of the memorandum being filed and is clearly marked “not to scale.”   What is confusing is the footnote to the reply brief which implies a “site plan survey” was not included in the return of record but as the defendant's brief notes the return of record includes the site plan at Exhibit 15.   But no “new evidence” is being introduced and the purpose of the sketch has nothing to do with the scale of the properties, the street, etc.   The plaintiff could have reproduced Exhibit 15 and somehow attached it to the reply brief but for the purposes for which it was used in the reply brief this would have been cumbersome.   This matter will be heard by a judge not a jury so it is difficult to see how attachment of this sketch would be misleading.   Assuming the court were to grant this motion to strike, could it be argued that during argument counsel could not request use of the blackboard to draw the same not to scale sketch to illustrate the argument?   To ask the question provides the answer.

The only aspect of this that might be confusing is the previously mentioned “footnote 1.” Perhaps an addendum to the reply brief should be filed alerting the trial judge to the fact that Exhibit 15 in fact shows the lot locations in relation to Burr Street which is drawn to scale.

Corradino, J.T.R.

Corradino, Thomas J., J.T.R.