Jump to content
Sign in to follow this  
blithe

Evidence in trials

Recommended Posts

blithe said...

I suppose I could argue that the documents at issue were supplied to me

by the Defendants through their attorneys. I don't see that I have any

other options.

You can try for that, but it likely won't help. That the documents were given to you by the opposing side in discovery does not by it itself mean they are admissible without going through the process of having a witness lay the foundation and, if necessary, provide the testimony needed to support an exception to the hearsay rule.

Share this post


Link to post
Share on other sites

It's hard for me to believe that the reputable attorneys for the other side would say the stuff they sent me was not admissible/authentic. They are, after all, officers of the Court and bound by ethics, are they not? I guess if they object via the pretrial order, I would just have to so argue in Court, since I can't afford to subpoena their people from out of state.

Share this post


Link to post
Share on other sites

If you want the evidence admitted, regardless of how you came into possession of it, the burden is on you to present the proper foundation for their admissibilty and to have the correct witness there to testify as to the authenticity of the documents. The other party is NOT required to do your work for you or make it easy for you to get evidence in. Their job is to zealously defend their client using all the rules of evidence available to them to prevent evidence you think is favorable from coming in. Absent proper foundation and authentication, documentary evidence is hearsay and inadmissible.

Share this post


Link to post
Share on other sites

Did you read the stipulation clause in the pretrial order I posted here, Guess Again? Because that surely will cover it unless these attorneys turn out to be idiots and deny the documents came through their offices. Unless so, they must vouch for them or have their clients do so before the order goes to the Judge. I mean, the pretrial order is up to me to furnish to the Defendants, and up to them to then furnish to the Court. I took it off the federal court website and modified it to comply with dates the Judge has set forth in another order besides the one mandating the submission of the pretrial order, which actually came from the other magistrate judge on the case.

In case you didn't see the earlier posting, here is the pertinent clause in the proposed pretrial order:

Parties are to provide to each other copies of exhibits they intend to attempt to introduce into evidence by Oct. 1, 2011. The parties must file an original plus three (3) copies of the parties' "consolidated exhibit list identifying all exhibits that the parties have stipulated are admissible" and a "consolidated exhibit list identifying all exhibits the parties have stipulated to be authentic, but to which there are other objections" no later than Oct. 7, 2011.

For those exhibits on which a stipulation could not be reached, the offering party must file a separate "contested exhibit list" no later than 10 calendar days before trial. An original plus three (3) copies of each party's contested exhibit list must be filed on Oct. 7, 2011.

Share this post


Link to post
Share on other sites

blithe said...

Because that surely will cover it unless these attorneys turn out to be

idiots and deny the documents came through their offices. Unless so,

they must vouch for them or have their clients do so before the order

goes to the Judge. I mean, the pretrial order is up to me to furnish to

the Defendants, and up to them to then furnish to the Court.

GuessAgain was correct. Let's back up a minute and step through this so you understand what's going on here. Just because the defendant gave you a document in response to a request for production of documents does not mean that the document is admissible. You'd still have to do the work necessary to get the document admitted unless the defendant stipulates to admission. That the the defendant gave you the document is NOT a stipulation that it is admissible. Note that so far none of this has anything to do with the pre-trial order that you are evidently seeking. I'll get to that shortly.

Let me give you an example from when I was an attorney for the IRS. Let's suppose John Smith is a self-employed carpenter. He claims on his 2008 tax return that he spent $65,000 on lumber for his carpentry business, a huge increase over his deduction for supplies in previous years. He attaches to the return a year-end summary of purchases that he supposedly received from Lumber-R-Us as support for the purchases. The IRS audits the return and disallows the deduction because the documentation was not sufficient to prove the expenses. The taxpayer goes to court to contest the proposed assessment. He asks from the IRS in discovery for a copy of all records the IRS administrative file for the audit. Responding to that, the IRS provides a copy of the year-end summary.

The taxpayer now wants to use that year-end summary at trial to prove the expense. He's going to have to lay the proper foundation to show its authentic and he's going to need to be prepared to meet a hearsay objection. The mere fact that the IRS gave him the document in response to a request for production of documents does not mean the IRS stipulates to admission and does not relieve John Smith of his burden to do what is necessary to get the document admitted. He could ask the IRS to stipulate to admission of it prior to trial, but the IRS would not likely agree to that. After all, the IRS doesn't know if that year-end summary from Lumber-R-Us is authentic—it didn't create the record. It was simply something that the taxpayer himself attached the return. Moreover, to the extent it has any basis for objection to admission, like hearsay, privilege, or whatever, the IRS certainly wouldn't agree to admission and give up the objection it has.

blithe said...

Parties are to provide to each other copies of exhibits they intend to

attempt to introduce into evidence by Oct. 1, 2011. The parties must

file an original plus three (3) copies of the parties' "consolidated

exhibit list identifying all exhibits that the parties have stipulated

are admissible" and a "consolidated exhibit list identifying all

exhibits the parties have stipulated to be authentic, but to which there

are other objections" no later than Oct. 7, 2011.

For

those exhibits on which a stipulation could not be reached, the offering

party must file a separate "contested exhibit list" no later than

10 calendar days before trial. An original plus three (3) copies of

each party's contested exhibit list must be filed on Oct. 7, 2011.

Should the court issue that order, you understand what it means, right? It's not connected with discovery. Discovery is over. This is coming after that.

You each need to decide what exhibits you wish to have admitted at trial. You come up with a list of those things you want to get admitted and give that to the defendant by 10/1. The defendant does the same.

Following that exchange, the parties need to confer to see if they can agree on which documents on those lists are admissible. The parties will put on one list all the documents they agree are admissible and that combined list will be filed with the court by 10/7. For the documents on that combined list that you want to use, you won't have a problem getting them admitted because the defendant has stipulated to it. But I'll say it again: just because you got the document from the defendant in discovery does not obligate the defendant to agree to put it on this list of stipulated admissible documents.

If there was a pre-trial order like the one mentioned above in John Smith's tax case, the IRS would not agree that the document was admissible and it would not go on the list of stipulated admissible documents. Just because the IRS gave John the document in discovery does not obligate it to stipulate to admission of the document.

Next, under the proposed order, the parties would confer and come up with a second list of documents they agree are authentic, but that the other party has some objection to admission, e.g. hearsay, privilege, etc. This joint list is also due by 10/7. For your documents on this list to which the defendant has one or more objections, you'd not need to prove authenticity, but would need to be prepared to overcome the defendant's objection to it.

Following along again with my tax case example, the IRS would not agree to put the year-end summary on this list either because, as I said before, it doesn't know that the document is authentic and thus will make John Smith lay the foundation for that at trial. Again, just because the IRS gave it to him in discovery doesn't mean the IRS has to agree that it is authentic.

Finally, each party will end up submitting its own list of documents it wants to admit that the other side will neither agree to stipulate to admission and will not agree is authentic. Here, there is not a single combined list submitted jointly by the parties but rather each party submits his own list. This list is due 10 days before trial. As to your documents you submit on your list to the court, you'll need to be prepared to lay the foundation to show it is authentic and be able to overcome any objection the defendant might raise.

In my tax case example, John Smith would end up putting the year-end summary on his separate list of documents that the IRS for which the IRS woul

...[Message truncated]

Share this post


Link to post
Share on other sites

Yes, it does, because I realize now that there are three lists, not two: the joint one that both agree are admissible; the joint one that both agree are authentic but to which there are other objections; and the one to which no stipulation at all could be reached (each party separately). I had not understood that this last one was not the same as the second one.

And I understand what you are saying in your example; however, my documents differ from that guy's in that they are not things I gave to the Defendants in the first place. They are copies of the breached contracts which came from the Defendants, lists of payments made also from Defendants, fraudulent tax returns used to get me the loan which I saw for the first time during discovery when Defendant sent them to me through their lawyers, copies of notations from their contact logs, copies of proof of coverage cards to carry in the car which came from the (wrong) policies the Defendant sent me, copy of my title from the lien holder Defendant, documents related to the alleged sale of the repossessed vehicle at auction which came from Defendant lien holder, deficiency statement letter from same and notice that the lien holder had not received notice that the car was insured received months after the vehicle had been (illegally) repossessed. These I logically expect to end up on the admissible list.

Other things to which there may be other objections besides authenticity include printout from my email account showing communications from one of the Defendants to show one missing, estimate from repair shop, my SS earnings for the years of the fraudulent returns, printout from my email account showing invasion by someone in Texas (that's where Capital One is based, and it's my contention that they invaded my account and tampered with documents that had come from the Court), and an affidavit from one of their employees in which there are lies disprovable by their own contact log (to be used to show the untrustworthy nature of Defendant to the end I can get the missing contact log entries admitted through testimony, because if their contact log can be used to prove the existence of something in the case they are trustworthy, the obverse applies, I should think). This latter might logically be on the firs list, the affidavit, I mean.

Things which might logically end up on the separate list of objectionable proposed exhibits include printouts from www.complaintsboard.com regarding both Defendants, police reports, a page from my personal calendar with a present sense impression from the day an alleged buyer at Manheim told me over the phone that he had paid more for the car than Defendant lien holder reported on my deficiency balance. Some of the second list could end up on this list, I realize, and I think that I can successfully argue exceptions to all of these except the police reports, which, if they are not admitted, I can testify to anyway, and I think that you pointed this out to me.

What I am saying here is that I see no reason for them to object to the things on the first list, which, unlike in your carpenter case, are not things I gave them in the first place.

Thanks for making the third list understandable to me.

Share this post


Link to post
Share on other sites

blithe said...

These I logically expect to end up on the admissible list.

To the extent the defendant itself created the document at issue, I would expect that the defendant would agree that the document is authentic. Documents (like insurance cards) that are created by someone else they likely would not even say they agree are authentic. In any event, they may still have one or more objections other than authenticity for the documents you mentioned. You'll just have to see to what the defendant is willing to stipulate and go from there.

Share this post


Link to post
Share on other sites

blithe said...

You didn't answer my question about what privilege means in the context of its use in the federal rules.

You asked specifically about FRE 501. It states:

Except as otherwise required by the Constitution of the United States or

provided by Act of Congress or in rules prescribed by the Supreme Court

pursuant to statutory authority, the privilege of a witness, person,

government, State, or political subdivision thereof shall be governed by

the principles of the common law as they may be interpreted by the

courts of the United States in the light of reason and experience.

However, in civil actions and proceedings, with respect to an element of

a claim or defense as to which State law supplies the rule of decision,

the privilege of a witness, person, government, State, or political

subdivision thereof shall be determined in accordance with State law.

A privilege is a rule that protects information from forced disclosure by legal process, e.g. subpoena, etc. In other words, if a privilege applies, a witness cannot be compelled to answer on that matter in a court proceeding. The most well known of the privileges are the privilege against self-incrimination provided by the 5th Amendment to the U.S. Constitution; the attorney-client privilege, and the marital privilege. Another very important privilege, but one that is not as well known to the general public, is the privilege for attorney work-product.

There can also be privileges covering certain communications a patient makes to his doctor; certain communications between a church member and clergy; and communications made by a client to his accountant, and a journalist's privilege protecting information he obtains from a confidential source.

Not all of these privileges are available in all jurisdictions, and the extent of the privileges also vary by jurisdiction. Some of the privileges are established in the common law, like the attorney-client and marital privileges, while others are provided by statutes, e.g. the account-client privilege found in some jurisdictions.

FRE 501 essentially says that the privileges found in the federal law will apply to proceedings in federal court except if the claim being heard is a state law civil claim, in which case the state's privilege rules will apply instead.

Share this post


Link to post
Share on other sites

I guess I knew of the existence of most of these privileges, except the attorney work product one, and I'm afraid that the journalist's privilege on confidential sources has seen serious inroads in recent years. I am more used to thinking about privilege as it applies to what can be published and what not, ie. only those facts obtained from official documents and, in some cases, sources. Thanks again for filling me in.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...
Sign in to follow this  

×
×
  • Create New...