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Jun 25, 2026
Law school teaches an overview of the rules of evidence and the rules of civil procedure. It does not teach the discipline of voluntary evidence disclosure, which is the practice of getting your witnesses, your exhibits, and your expert opinions in front of the other side and the court early, on purpose, before anyone makes you do it. That is a strange gap in education, because the duty to disclose is woven through those same rules both expressly and by implication. The rules assume disclosure. They reward it. And yet most lawyers were never taught to build a practice around it.
A recent, ongoing story out of Tulsa shows, in painful and public fashion, what can happen when that discipline is missing.
I am not involved in this case in any way. Reporters sometimes get it wrong, and a news story almost never captures everything that happened in a courtroom or a case file. So I take the reporting at face value here only to make a teaching point, not to pass judgment on any lawyer, judge, or party. The reported facts illustrate a problem I see constantly, which is the failure to disclose a witness in advance.
What the Reporting Describes
According to News on 6, April Wilkens, convicted of murder nearly 30 years ago, asked to be re-sentenced under the Oklahoma Survivors Act. To prevail, she had to show she was a victim of domestic violence and that the abuse was a substantial contributing factor to the crime. The judge reportedly indicated she needed expert testimony from a forensic psychiatrist to carry that burden.
Per a new filing, her attorney at the time did hire a forensic psychiatrist. The expert evaluated Wilkens and completed her report two months before the hearing. The expert reportedly expected her opinion to be submitted to the State and the court and to support live testimony. But the expert’s report was not disclosed to the prosecution or the judge until the day before the hearing, and as a result, the expert could not testify in the way that might have helped. The filing says the judge even suggested a continuance to do it properly, and counsel declined. The judge then ruled he had no choice but to deny relief because the abuse was not proven to be a substantial factor.
The expert existed. The report existed. The opinion was the exact thing the court said was needed. And the lawyer didn’t produce it in advance.
This Is the Downside of Surprise
I have written before that it can feel painful to hand your best evidence to the other side early, but that pain is nothing next to watching that evidence get excluded at the moment it matters most. The rules of procedure and evidence are built, top to bottom, on the premise that trials are not conducted in the dark. The other side is going to see your evidence eventually. The only question is whether you use that certainty to build your foundation, or whether you let late disclosure hand the other side a basis to keep your evidence out.
When an expert’s opinion surfaces the day before a hearing, you have created exactly the surprise the rules exist to prevent. You have given the other side a legitimate objection. You have given the court a reason to limit or exclude. And you have done it with your own best evidence.
Disclosure Is a Show of Confidence
When you are truly getting ready for a hearing or a trial, handing over your witness and exhibit list is not a concession. It is a show of strength. If you have done the work, you already know your evidence cold, and you have already sat with the hard question of how the other side will attack it. You have war-gamed what they are going to argue. So giving them your list does not scare you, because there is nothing on it you have not already stress tested.
The lawyer who hides the list is often the lawyer who has not done that work yet, or who is afraid of what the other side will say about the evidence, or who does not really know how to present the evidence and defend it. The lawyer who shows the list is telling everyone in the room, including the judge, that the case is prepared and the proof can take the hit. That posture matters. Judges notice who is moving the case forward and who is playing games. Opposing counsel notices too, and often reciprocates. When you show them yours, you are saying out loud that you are not afraid of your own evidence or of what they are going to do with it, and that confidence tends to pay dividends long before trial, in negotiation and in the court’s view of your credibility.
Here Is What I Want You to Notice
This does not require bad intent. I want to be clear about that, because the easy and lazy read is that someone must have been hiding the ball or acting in bad faith. A lawyer can be intelligent, hardworking, and entirely well-meaning, and still not have internalized the discipline of advance disclosure, precisely because no one teaches it. We learn the hearsay rule and its exceptions. We learn the elements of claims. We are not taught the unglamorous, day-to-day habit of identifying every witness and exhibit early and getting them in front of the other side and the court early, as soon as possible, and its many benefits, including incentivizing settlement. That habit is learned, or not, in practice.
And when it is not learned, look at the cost. The client is prejudiced. Here, reportedly, a woman who may have had a legitimate claim and the very expert opinion the court asked for, undone by timing. The lawyer ends up the subject of a 288-page filing and a news story, her conduct publicly questioned. Whatever the truth turns out to be, that is a mess no lawyer wants their name attached to.
The Takeaway
Put your evidence together and disclose it on a schedule that protects your client and lays the foundation for its admission. The rules practically guarantee the other side will see it all eventually, so make that inevitability your strength instead of your undoing. If you are truly ready, you are not afraid to show them yours. Late disclosure of a ready, willing expert is not a strategy. It is a self-inflicted wound, and as this story shows, the wound is rarely contained to the case.
You can read the News on 6 story here:
https://www.newson6.com/crime/april-wilkens-asking-judge-for-new-hearing-says-former-attorney-colleen-mccarty-misled-wilkens
