100 days to trial: no time to lose

100 DAYS TO TRIAL: NO TIME TO LOSE

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TABLE OF CONTENTS

1. Presentation Slides 2. Program Outline 3. 100 days before trial: Evidentiary Planning Steven N. Peskind 4. The Divorce Trial Handbook Chapter 2: Organization for Trial Lynne Z. Gold-Bikin and Stephen Kolodny 5. The Divorce Trial Handbook Chapter 4: Theory of the Case Lynne Z. Gold-Bikin and Stephen Kolodny 6. The Divorce Trial Handbook Chapter 12: Evidence Lynne Z. Gold-Bikin and Stephen Kolodny 7. The Family Law Trial Evidence Handbook Chapter 2: The Fundamentals of Evidence Steven N. Peskind 8. The Family Law Trial Evidence Handbook Chapter 9: Authentication of Writings and

Other Tangible Evidence Steven N. Peskind 9. The Family Law Trial Evidence Handbook Chapter 16: Procedures for Streamlining

Admission of Evidence Steven N. Peskind

January 29, 2014

ABA Family Law Webinar

Steven Peskind, Esq.

Peskind Law Firm

St. Charles, IL

Richard Ferguson, CPA

Ferguson Consulting, LLC

Worthington, OH

What needs to be done when trial is 100 days away?

Lawyer’s role as team captain ◦ Planning the case

◦ Deadlines

◦ Assessing staffing needs

◦ Communication

Expectations of the expert witness

Estimating cost of trial

Deposit for trial costs and fees

Taking a lien?

Being upfront about trial fees and scope of assignment

Client or attorney responsibility?

Ability to stop work or not testify if not paid?

Proof Charts

◦ Issues?

◦ Elements of each claim or defense?

◦ Evidence supporting each element?

◦ Potential objections?

First, prepare the judgment you want ◦ The proposed judgment should cover all assets and

debts, child support, alimony, custody, and fees – whether or not those items are in dispute

Then, work backwards ◦ Can any of these issues be resolved by stipulation?

◦ If not, what evidence is needed to get the desired result

◦ Cover each issue in trial brief

Who do you need to testify?

◦ Case in chief/impeachment/rebuttal/expert

◦ Client approval as to who to call (and not to call) as witnesses.

How do you get them to trial?

◦ Informing potential witnesses of trial dates

◦ Issuing subpoenas

Witness list

Finish any remaining depositions

Using depositions at trial ◦ Video clips from depo

◦ Depo transcripts

Requests to admit genuineness of documents

Time considerations ◦ Party authorization for release of records

◦ Deposition subpoena

◦ Subpoena to trial court

Drafting the request ◦ What to ask for/not ask for

Custodian of records declarations ◦ Contents of declaration

◦ Marking what was received

Get experts involved early

What can be done in 100 days if the expert hasn’t already been retained?

What opinions are needed?

◦ What assumptions are to be made in rendering the opinion?

What evidence exists and what needs to be developed?

Is the expert qualified to render these opinions?

◦ Will the expert have to rely on the opinion of another expert to reach the ultimate conclusion?

What opinions are controversial?

Availability of the expert to complete assignment?

Defining the expert’s assignment

Date of valuation

Exchange of reports with other side ◦ When to update

◦ Risk of updated report being excluded because it is too late

Demeanor/dress

Possibility of being called out of order

Possession of notes or other papers while testifying

What to review prior to testifying

Mock direct/cross exam

Ethical limits

What questions experts fear on cross?

How to prepare for cross of other side’s expert

How to explain accounting to judges

RASH test for admissibility (relevance, authentication, secondary evidence, hearsay)

Impeachment exhibits (e.g., every declaration signed by other side)

How to use documents at trial

Charts

PowerPoint?

Organizing documents electronically for exhibit books

Marking exhibits

Exhibit list

Client review of exhibits

Stipulate re undisputed facts

Stipulate re burden of proof

Stipulate re marking and admissibility of exhibits

Stipulate re order of witnesses

Defining the areas of disagreement between the experts ◦ For example, the experts agree on the income data

but use different ways of averaging that income

◦ Historical financial information is correct per both experts, but they apply a difference cap rate to value the business

Courts are most concerned about the points where the experts do not agree, so highlight those areas in testimony

Explain why one approach is better

Local procedure and preferences

Likelihood of trial proceeding as calendared

Need for court reporter or interpreter

Technology available in courtroom

Contact info for local copy shops or fax machines

Deadlines for completion of discovery

Scheduling depositions, priority of depositions

Due dates for exhibits, witness lists, motions and briefs

Trial notebook

Motion in Limine to admit or exclude evidence

Request for Continuance

Motion to Set Order of Proof

Alternate valuation motion

Request for statement of decision

Summary judgment?

Request for fees

Roadmap for court

Content may depend on sophistication of judicial officer

Preserving claims for appeal

Role of the forensic accountant in settling cases

Expert-to-expert discussions about settlement

Experts are not emotionally involved, so they may be able to accomplish more than parties or attorneys in settling case

Establishing client’s bottom line

Making sure client understands the cost and risk of trial

What to offer now vs. what to hold back to leave room for negotiation

Use of trial judge as settlement officer

Who is the lead attorney?

Is the client willing to have an associate take the lead?

If there will be a second chair, does the client agree to pay for that attorney?

Regular meetings with trial team

Trials are disruptive to the operation – deadlines, last-minute demands, time out of office ◦ Deadlines in other cases to cover?

◦ Staff vacations before or during trial?

◦ Personal obligations to cover?

Avoiding overtime by staff by delegating work early

Many jurors make up their mind about the case based on the opening statement? ◦ Are judges any different?

What to say/not say in opening? ◦ Story/theme of case

◦ Do you ever waive opening?

Risk is less for settlement than trial

Documenting that client was informed of risks of trial

Documenting that client was involved in decisions whether to make claims, call witnesses, or gather additional evidence

Worst case scenario: not getting paid for the trial and losing

Develop a checklist based on deadlines that apply in your jurisdiction

Assign tasks to each team member

Follow through

100 days is not much time to get ready for trial but is a critical period

Planning must be done carefully to avoid missing deadlines

Communication between the client, the expert, opposing counsel, is essential

100 Days Before Trial – No Time to Lose

PROGRAM OUTLINE

1. Getting Paid

a. Advance trial fees and costs

b. Lien on property to secure fees?

c. Too late to get out?

2. Planning the trial

a. Proof Charts

b. Another Approach: Prepare the Judgment First

3. Witnesses

a. Who do you need to testify?

b. How do you get them to trial?

c. Informing potential witnesses of trial dates

d. Issuing subpoenas

e. Finish any remaining depositions

f. Substitutes for testimony (depositions, declarations).

g. Expert witnesses

h. Impeachment witnesses

i. Evaluating and preparing witnesses

j. Client approval as to who to call (and not to call) as witnesses.

k. Witness list

l. Preparing Client and Other Witnesses for Trial

4. Documentary Evidence

a. Getting additional documents to trial.

b. Completing discovery

c. Organizing documents electronically for exhibit books

d. Marking exhibits

e. RASH test for admissibility (relevance, authentication, secondary evidence, hearsay)

f. Impeachment exhibits

g. Client review of exhibits

h. Exhibit list

i. Demonstrative Evidence

5. Meet and Confer

a. Stipulate re undisputed facts

b. Stipulate re burden of proof

c. Stipulate re marking and admissibility of exhibits

d. Stipulate re order of witnesses

6. Check with Court Clerk

a. Local procedure and preferences

b. Likelihood of trial proceeding as calendared

c. Need for court reporter or interpreter

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7. Case Management

a. Deadlines for completion of discovery

b. Scheduling depositions

c. Due dates for exhibits, witness lists, motions and briefs

d. Ensuring that counsel meets and confers

8. Trial Notebook

9. Pre‐Trial Motions

a. Motion in Limine

b. Request for Continuance

c. Motion to Set Order of Proof

10. Trial Brief

a. Content may depend on sophistication of judicial officer

b. Preserving claims for appeal

c. Roadmap for court

11. Preparation of Opening Statement

12. Settlement Conference

a. Establishing client’s bottom line

b. Making sure client understands the cost and risk of trial

c. What to offer now vs. what to hold back to leave room for negotiation

d. Use of trial judge as settlement officer

13. Trial Team

a. Who is the lead attorney?

b. Is the client willing to have an associate take the lead?

c. If there will be a second chair, does the client agree to pay for that attorney?

d. Regular meetings with trial team

14. Preparing the Office and Yourself for Trial

a. Deadlines in other cases to cover

b. Staff vacations before or during trial

c. Avoiding overtime by staff by delegating work early

d. Personal obligations to cover

15. Managing Professional Liability Risks

a. Risk is less for settlement than trial

b. Documenting that client was informed of risks of trial

c. Documenting that client was involved in decisions whether to make claims, call

witnesses, or gather additional evidence

d. Worst case scenario: not getting paid for the trial and losing

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100 days before trial: Evidentiary Planning

By: Steven N. Peskind

The time to start thinking about the admission or exclusion of evidence is not at the

trial, but at least 100 days before the trial. Trials are based upon evidentiary building

blocks, and strategies for admission must be determined months, not days, ahead of

the hearing. Evidentiary planning consists of five basic steps, regardless of the issues

in the case to be tried:

First, analyze your proofs. What are the facts necessary to sustain your theme

and theory of the case?

Second, determine how to effectively admit those facts into evidence. What

evidentiary obstacles will you encounter? What are the foundational or

authentication requirements? How do you get it in?

Third, order the proofs in the most persuasive manner. How do you structure

the presentation of the evidence to make it more compelling and interesting?

Fourth, choose the best way to admit evidence. Do you want to use

testimony, exhibits or both to satisfy a particular proof requirement?

Fifth, anticipate our opponent’s proofs and plan for the defense of them.

What evidentiary or procedural defenses do you have available? How can you

present evidence in your own case to minimize or neutralize your opponent’s

evidence?

This paper will explore these steps and suggest strategies for ensuring that evidence is

not only admitted, but that it is used in the most persuasive manner possible.

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Determine your proofs

Every case consists of “proofs.” Proofs are those facts necessary to prove the theory of

the case. The case theory is “the adaptation of a factual story to the legal issues in the

case. Your theory must contain a simple, logical, provable account of facts which,

when viewed in light of the controlling law, will lead to the conclusion that your

client should win.”1 What facts, applied to the existing law, warrant the relief you

seek? For example, in an alimony case, what factors does the statute require in

support of such a claim? What facts do you have that can be plugged into those

factors: length of marriage, income differential, homemaker contributions, etc.

Your proofs should also support the theme of your case. The theme is a short

statement designed to grab the judge’s attention with a moral hook upon which the

relief should be granted. A theme appeals to common values and cultural beliefs. A

good one artfully encapsulates the core principal of the case with a phrase or parable

that will resonate with the judge. The theme is not designed to appeal to the judge’s

logic, but rather their sentiments. Think about the facts that you will need to present

to support your theory and advance your theme. At closing, tie them up within this

framework. “Judge, in my opening statement I told you that this case was about

givers and takers, what did the evidence reveal…”

1 Steven Lubet, Modern Trial Advocacy 380 (4th ed. 2009).

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The proof chart

A proof chart is a visual summary that helps a trial lawyer consider and organize his

or her proofs. It is also a template to help you think about any evidentiary obstacles

in advance. Again, the proof chart is nothing more than a preparation aid that helps

you visualize your case. Use the chart to think about how to organize the proofs in a

coherent and strategic way for the most persuasive presentation The fact section is

obvious: what fact do you seek to prove? What issue or issues does it apply to? Often

facts apply to multiple issues. Here is an example of such a chart:

Foundations for evidence

For any evidence to be admissible, it must satisfy the Three R’s: the evidence must

be “reliable”, it must be “relevant” and it must satisfy the substantive “rules”

(hearsay, original writing, etc.). In preparing for trial, analyze admissibility in this

context. Make sure you have the necessary information to show the evidence is

reliable and relevant, and be prepared to respond to any substantive objections

opposing the evidence.

Fact Issue How to Prove

Foundation/Authentication Objections & Response

Sally earns $40,000

Alimony/property division

Tax return

Stipulation None

Sally is Losing her job

Alimony/property Sally testify/ employer letter

Sally to authenticate/ FRE 902(11) certification?

Hearsay? Business record?

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With regard to the question of reliability, what preliminary information do you need

for admission of a particular piece of evidence? The act of providing this preliminary

information is called “laying the foundation” for the evidence. If you are considering

offering testimony by a witness, your foundation will need to establish that the

witness has personal knowledge and their testimony is based upon personal

observation, personal knowledge or recollection. When offering an exhibit, you must

establish that the exhibit is what it purports to be; that it is authentic. The act of

authenticating an exhibit is simply providing a court enough of a showing that the

exhibit is what it claims to be. This is not a difficult burden and a movant need not

conclusively prove the authenticity; the question goes to the weight a court should

give a particular exhibit.

Laying a foundation should be seamless and automatic. Effective trial presentations

are based largely on rhythm. Make sure you know the foundational requirements so

that you can smoothly move through those preliminary facts and get to the substance

of the testimony.

With regard to the foundation, analyze your proofs well in advance of the trial so

that you can address any foundational challenges you might have. Make sure that

the foundation can be established for all evidence. Again, if it’s testimonial, make

sure your witness has enough personal knowledge to testify. If not, seek alternative

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ways to have the evidence admitted. If it is an exhibit, think about ways to

authenticate it. In addition to having a witness testify to the authenticity of a

particular exhibit, consider the following:

Serve a request that the opponent admit the genuineness of a particular

document;

Seek an admission at a deposition that a particular exhibit is authentic;

Seek a stipulation by your opponent;

File a pretrial motion seeking a ruling;

Ask the court to take judicial notice that the item is authentic.

Determine whether the item may be self-authenticated under FRE 902 or a

similar rule under your state law.

Obviously these methods of authentication require advance preparation and you can

never start preparing for this aspect of admission early enough.

Summaries

In planning your proofs, think about using summaries. FRE 1006

provides, “The proponent may use a summary, chart, or calculation to prove the

content of voluminous writings, recordings, or photographs that cannot be

conveniently examined in court.” Be prepared to provide testimony to explain how

the summary was prepared, and that it accurately reflects the underlying data

summarized in the exhibit. If, for example, an accountant were called to provide

forensic testimony regarding the number of deposits into the husband’s bank

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account, and produced such a summary, they would testify to how the summary was

prepared: their procedures for analyzing the data, the records they reviewed and

included in the report. Once the summary is admitted, the accountant could use it to

testify to their conclusions based upon the summary of the data.

While all of the underlying documents relied on don’t have to be offered for

admission (although they could be), they must themselves be admissible. The trial

court has discretion whether to admit a summary. A summary may be used when

the underlying documents are too voluminous to be conveniently examined in court

individually. The original documents need not be produced in court, but they must

be made available to the other party for inspection and copying prior to the trial.

Some courts have imposed an affirmative duty to provide the records, regardless of

whether a discovery request was made.2 In some jurisdictions the rules require only

that the information be available for the opponent to review. Better practice, however

is to provide the information in advance of the trial so that no credible objections can

be raised based upon lack of notice. Make sure to bates stamp all of the information

provided to anticipate any arguments that the opponent did not receive everything.

Ordering your proofs

In trial planning, you not only need to think about what to get in, but the strategy for

getting it in in the most compelling manner. Present your witnesses in the most

2 See, e.g., United States v. Modena, 302 F.3d 626 (6th Cir. 2002).

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persuasive way possible. Rely on principles of primacy and recency in planning your

proofs. Judges, like anyone else, tend to be more influenced by the first and last

things that they hear. Consider some of the following in structuring your proofs:

Present your most important evidence in the early part of your case so that it

doesn’t get lost;

Address the your case weaknesses in the middle of your case;

Address your opponents strengths in the middle of your case;

End your case with something positive and memorable.

While there are times to deviate, ordinarily call your client as the first witness. In a

family law case, your client usually packs the primary emotional punch of the case;

his or her story is the most important thing for the judge to hear and it is best that the

judge hear that story first. If you are the plaintiff or the petitioner it is the very first

evidence the judge will hear, before the case becomes cluttered with competing noise.

If you are the respondent or defendant, it is your first chance to present your theory

and version of the facts.

But, again, there are exceptions. Perhaps you want to call your expert first to

highlight that testimony. Or maybe calling the adverse party will be necessary to lay

the groundwork for testimony. For example, if you want your client to discuss his or

her reaction to an event that involved the spouse, the spouse may need to testify to

that event first. In trial planning, think about the order of your witnesses: who are

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the actors that can most convincingly tell the story and in what order should it be

told?

Sequence of witness testimony

Not unlike the decision of the order of witnesses, you must consider the

structure of individual witness testimony. Each witness will address various topics

and you must determine the order of those topics. Generally, have the witness start

with positive topics rather than negative topics. In other words, in a custody case,

have the witness emphasize his or her strengths first, before the witness starts

discussing the negatives of the other side. Positive testimony is more persuasive: why

your client is worthy impresses more than why the opponent is unworthy.

Within the testimony, make sure to discuss your client’s “warts.” Explain

away (if possible) any uncomplimentary behavior or weaknesses. Don’t assume your

opponent will overlook them and where possible, seek to diffuse those problems.

Discuss the other side’s strengths and try to neutralize those strengths. Finally, end

strong with a compelling area of examination. In summary:

1. After the preliminaries, start strong with a positive topic: why should the

court grant you the requested relief?

2. Discuss the opponent’s negatives: why should the court deny your opponent

the requested relief?

3. Discuss the opponent’s positives: devalue them if possible;

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4. Discuss your weaknesses: address and explain them;

5. End on a high note: either a positive or negative area that will be remembered

by the court.

Show and tell

An ancient Chinese aphorism provides, “if you tell me, I’ll forget, if you show

me I’ll remember, if you involve me, I’ll understand.” Apply this principle to the

presentation of the case. Think of creative and efficient ways to tell your story.

Custody cases in particular lend themselves to innovative uses of evidence. Pictures

of home and neighborhoods illustrate the comparison/contrast between homes and

neighborhoods better than raw testimony. A copy of a child’s award for academic

achievement tells the story better than a simple recounting of the achievement by a

witness.

Consider using real evidence as well. Real evidence is an object or item that

illustrates an event. In a domestic violence case, if an object is used to strike a child,

consider bringing in the object as an exhibit to make concrete the incident in the

judge’s mind. Or, have your client physically show you from the witness stand where

he or she was struck and reenact the event. Raw testimony describing something

that happened, is rarely more persuasive than testimony enhanced by pictures,

physical objects, reenactments, charts, etc.

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We are a visual society. Everywhere we go we are barraged by video images.

We have become dependent upon visual images. Craft your case accordingly. Use

demonstrative aids where possible to clarify or explain complicated areas of

testimony. For example, if you are ultimately trying to show that someone’s income

is trending in a direction, you can have the witness testify to their earnings over

consecutive years, or you can prepare a demonstrative exhibit showing the numbers.

For example:

Use technology. Invest in a projector and screen and project exhibits, both

substantive and demonstrative, on the screen while the witness testifies. Take an

important page from an expert’s report and project it while the expert testifies to it.

Remember to have a paper copy of the exhibit for the record in the event of an

appeal. Or, prepare a power point for your closing argument to highlight important

evidence, case law or other proper information you want the court to consider as part

of its deliberations.

Year 2000 2001 2002 2003 2004 2005 2006 2007W-2 Value (box 5) $243,145.60 $213,172.26 $261,564.21 $294,201.94 $315,255.11 $350,036.91 $930,415.83 $442,874.41

EXPLANATION OF W-2Salary $135,000 $138,375 $147,000 $152,880 $158,230 $162,978 $167,867 $174,581Bonus $51,040 $73,058 $65,355 $51,161 $67,282 $57,922 $70,284Stock Options $59,120.40 $109,522 $120,559 $332,710.25 $181,564Sign-On Bonus $80,000Long-Term Incentive $17,000License Premium $5,080 $3,386Moving Expenses $13,707 $22,218 $39,200 $16,238Incentive $2,807Lump Sum Merit $4,600 $4,000 $4,074Retention $373,290Stock Dividend $5,280

SALARY AND BONUSSalary and Bonus Combined $135,000 $189,415 $220,058 $218,235 $209,391 $230,260 $225,789 $244,865Average Salary and Bonus $209,127

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Anticipate

While focusing on your proofs and evidence, don’t forget to anticipate your

opponent’s case. Where might they have holes in the theory of the case? Think

about ways to exploit that within your case. Is your opponent relying on potential

hearsay? Be prepared for the objection. If you need testimony from the opponent to

support your theory or theme, don’t rely on it from the opponent’s case; consider

calling the opponent adversely in your case. Generally:

Anticipate evidentiary objections and plan for those in advance. Find

appropriate authorities to argue objections.

Where necessary, prepare memoranda for the court on an issue you expect to

be controversial.

Is there some topic that requires advance disclosure? If so, make sure you

provide notice to your opponent in accordance with your local rules, statutes

or case law.

Review your opponent’s discovery answers and see if any witnesses need to

be deposed.

Are there items that you can stipulate to? Schedule a meeting with your

opponent to discuss stipulations.

Set aside adequate time months, not days, before your trial to consider all of the

details. Trial preparation is a moving target. By planning well in advance, you can

avoid many self-inflicted injuries. As lawyers, we tend to live in the land of urgency

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and reactivity; we lose sight of the future in the immediacy of our daily affairs.

Schedule planning time like you would any appointment to ensure that it doesn’t get

put off. The quality of your life and the results you achieve in court will materially

improve.

Steven N. Peskind, Principal

Peskind Law Firm 2445 Dean Street, Suite E

St. Charles, IL 60175 (630) 444-0701

www.peskindlaw.com

@StevenPeskind

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CHAPTER 2

Organization for Trial

Organization of the file is important not only for litigation but also for medi-ation, arbitration, or settlement. If counsel does not know what is in the file,there is no possibility of settling some or all of the issues. This chapter sug-gests how to organize your file so that you, or anyone in your office, canalways find the documents that are necessary for litigation or settlement.

An organized law office will maintain five kinds of records for eachclient:

■ A trial ledger, which serves as a document index■ A pleadings bible, which tracks each pleading as it is filed or received■ A discovery chart, including categories for each type of discovery and

the filing, serving, and response dates■ An asset and liability chart, providing instant access to the bottom

line■ Exhibits documentation, to ease the compilation of documentary evi-

dence for trial

These types of records are explained in turn below.

A. Trial LedgerWhen a case involves documents, it is critical to begin organizing the docu-ments immediately upon their receipt. The old adage that it is more efficientto touch the documents only once means, for practical purposes, that thesediscovery items are marked and filed immediately upon receipt, in a waythat they are easily retrievable by counsel and any assistant who will work

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chris

Typewritten Text

The Divorce Trial Handbook, ABA by Lynne Z. Gold‐Bikin and Stephen Kolodny

on the file. Having your desk or that of your secretary cleared of the docu-ments doesn’t help the organization of these documents unless they are eas-ily retrievable by counsel. Likewise, putting the documents clumped togetherin a large file does not enable you to access what you need when you need it.This file organization, referred to in this book as the trial ledger, will followthe entire trial preparation and, ultimately, will be the reference for theactual trial.

The trial ledger is an organizational chart that also serves as a checklistfor counsel to collect what is needed for any type of trial that may grow outof a family law case. Because there are standard documents needed in anydissolution, custody, or financial case, a generic trial ledger template, withexpansion space for specific evidence that may be necessary for a particularmatter, should suffice.

Bates-Stamping of Discovery Items

One of the easiest ways to organize a file is through a Bates stamper, a hand-held stamper with a sequential numbering system that can be reset at will.The first number is 000001; once stamped, the number automatically movesforward to 000002, and so forth. As each document in a file is received, it isnumbered and is, therefore, identifiable for filing purposes. Additionally,providing a copy of your Bates-stamping index to the clients will assurethem that you are in control of the documents and they are aware of what isin their file. Having your client trust you is an important phase of litigation.

When a client file is opened, the trial ledger template is copied into theclient file. As each document is received and numbered, the document, withits Bates-stamp number, is categorized in the trial ledger, often maintained inthe computer database. (See Appendix 1 for an example of how to categorizeBates-stamped documents in a computer file.) The last-used number is left atthe top of page 1; as each new document is received, the Bates stamper is setto the correct subsequent number. The documents are filed by consecutivenumber. When counsel wants to know if a certain document has beenreceived, the answer will be in the trial ledger. When counsel wants toreview the document, its number can be found in the ledger and the docu-ment located numerically in the file. Documents sent to opposing counselare listed by name and by Bates-stamp number so there is no question as towhich document has been transmitted.

In financial cases, such as child support or business evaluations, thereare routine documents required to determine both the marital “pot” and theincome available for support. The template will have a list of categories forthe financial case, including personal tax returns (both state and federal),corporate tax returns (“S” or “C” type), and partnership returns. Pay stubs,W-4s, 1099s, and K-1s are all standard documents that will appear in almostall complex cases, so these categories should be part of the trial ledger tem-plate. As each document is received, it should be Bates-stamped, enteredinto its own file folder labeled with the same Bates-stamp number, and

8 ORGANIZATION FOR TRIAL

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recorded under its Bates-stamp number in the appropriate category of thetrial ledger.

Tip It is important, before the database is developed, to know all of the criticaldates for trial. If the date of separation is an important date, a column forthat date should be part of the table. So, too, where the date of trial (ormost recent date just prior to trial) is a factor for the ultimate trial, a col-umn for this date is necessary.

There will be numerous other categories for such items as expense lists,deeds, appraisal reports, insurance policies, and the like. As the trial ledgerprogresses, counsel should send a copy to the client so that both lawyer andclient are current on what is in the file. It is not only good client relations,but it keeps the client/counsel team aware of what is in the file and what isnot in the file.

The trial ledger is effective for trial only if it is kept current and organ-ized. This means that information and discovery items must be Bates-stamped and cataloged immediately upon receipt. When counsel checks theledger to see what has been received, the list of information in counsel’sfile—those documents actually received—must be instantly available. If thecouple’s 2001 federal tax return has been received, for example, the trialledger category “Tax Returns / Federal / Joint” will list “2001 Federal TaxReturn, Joint” along with its Bates-stamp number, so counsel will know thatthe return is available and where to look for it. As each prior or subsequentyear is received, the returns should be cataloged by year and by whom itwas filed.

So, too, as other forms of tax returns, bank statements, brokerage state-ments, appraisal, and other forms of evidence are received, their listing inthe trial ledger provides counsel an immediate review of what is and what isnot available to prepare for trial. This organization will ensure that counselis prepared to try the case with the appropriate evidence. As the trial datenears, when counsel determines what documents will be needed at trial, thestaff should make sufficient copies of each exhibit to be introduced.

Facts of the Case

The trial ledger should also contain a section for facts necessary to proceedwith the litigation. This should include basic information (address, phonenumbers, fax number, and e-mail address) about the client, spouse, andopposing counsel. Similar information should be listed for your chosenexperts, along with their resumes.

Additionally, all issues pled and still outstanding at time of trial shouldbe listed. This includes any outstanding motions to be litigated with a list ofthe allegations and the responses. Each allegation should include a list of thewitnesses needed to prevail and the necessary evidence to be produced.

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Many cases have issues that have been deferred to the final trial andthat can be potentially forgotten. It is critically important that these issues bemaintained in this “facts” section so they will not be overlooked. Also, dur-ing the preliminary litigation, certain issues may have been resolved or cer-tain agreements made. These, also, must be listed so as to preserve them forinclusion in the stipulation at the start of trial or request for final order. Forjudicial economy, request opposing counsel to enter into written pretrialstipulations.

Agreements and Orders

During the litigation period, there are often stipulations, orders, and agree-ments as to certain assets or actions. For example, an agreement to advancecounsel fees from the assets must not be forgotten at the trial. An orderadvancing certain moneys with the caveat that, at time of trial, the judge ormaster will determine whether they were to be returned to the marital “pot”must be recorded. Another scenario that might be raised at trial is if oneparty has cashed a tax refund check “without prejudice to the other’s claimthat the check is a marital asset.” When these agreements, stipulations, ororders are reached, counsel must keep a record in the trial ledger to utilizethem at the appropriate time if they are not the subject of prior written stip-ulations or agreements.

B. Pleadings BibleA pleadings bible is a binder in which all pleadings, as they are filed withthe court, are kept. Organizing the pleadings as they are filed is necessary tokeep track of the status of the case. By keeping each pleading as filed, coun-sel is always aware of what is pending, what orders have been entered, andwhat is necessary to file. As each pleading is filed or received, it must bekept in the appropriate “bible” by docket number. The first page of eachpleadings bible should be an index of all pleadings filed under the particularcaption and docket number. An index of the pleadings of each type of matter(divorce, support, custody, for example), is also kept in the computer file ofthe client, so counsel always has access to what has been filed and on whatdate the filing occurred. An example of a pleadings bible is in Appendix 2.

Pleadings

The pleadings, as filed, are allegations and factual claims, sworn as true, andthe basis of the filings by the parties. They are the basis of the suit in courtand the parties are held to what they have pled. Consequently, their wordingis critical to the litigation. In the basic pleadings, which set forth the grava-men of the complaint, the parameters of the litigation are set forth. Thepleaded specifics, however, are fodder for direct and cross-examination.

In a custody case, for example, where a mother claims certain facts insupport of her allegation that she was the primary custodial or nurturing


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parent, these facts must be proven. If she forgets or is unable to prove whatshe has pled, her case will be weakened. If the father alleges that since he leftthe marital residence the children’s grades have suffered in school, counselmust be prepared to present the school records in support of the allegation.Where the dependent spouse claims that the independent spouse earns inexcess of $200,000 per year, tax returns or other independent proof mustsupport that figure. There should be no allegations in a pleading that coun-sel or the client doesn’t believe to be accurate.

As the pleadings become more narrow, and the allegations more spe-cific, the words chosen in the pleadings become more important. For exam-ple, in a relocation case, allegations of the need for or appropriateness ofrelocation will set the parameters of the litigation. If the response to therequest for the right to relocate is that the parent unjustifiably abscondedwith the child, the court now knows what to expect from the party opposingthe move in the way of testimony.

C. Discovery ChartA discovery chart should include categories for each possible type of discov-ery, the date a request is filed, the date it is served on the other side, the duedate for response, the date the response is received or mailed, and theresponse’s Bates-stamp number. A suggested form is attached at Appendix 3.

Deposition information should include the date of the deposition, thedate on which the notice of the deposition and the subpoena duces tecumwas served, the date the transcript is received and the transcript’s Bates-stamp number, and the date the deposition is signed, if applicable, forretrieval purposes. It is far better to keep the pleadings index and the discov-ery charts current than to risk missing deadlines. This is a way to keep coun-sel, as well as all personnel assigned to the case, up to speed on the progressof the case.

Research

Every case demands its own research. Whether it concerns a new issue thatmust be researched, a case that should be shepardized, an evidentiary ques-tion that should be checked, or an expert witness who must be investigated,research is an essential part of trial preparation. In the case of an expert wit-ness on the opposing side, the expert’s previous court reports, articles, andspeeches are all fair game for cross-examination and for understanding thesource and potential bias of the expert’s opinion. Any expert that the otherside plans to call to testify must have some history, and research to pinpointthat history helps your case.

Often there may be an anticipated evidentiary problem, such as with adocument, that may draw an objection or a witness statement that may bechallenged as hearsay. Advance research on how to answer that anticipatedobjection is also part of trial preparation.

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If the particular case relies on state case law, it is critical to shepardizethat case just prior to trial to ensure there has been no change in the law. Forexample, whether stock options are income or an asset is an evolving part ofthe law. Has there been a change in your appellate court’s position on thisissue? Are there any articles that may come in under the “learned treatise”exception? No lawyer wants to be blindsided at trial, and research is greatprotection.

D. Asset and Liability Chart

In every client’s file, from that first interview and opening of the file, an“asset and liability” chart (call it what you like) should be formulated. Beforecreating this chart, consult the statutes of the state setting forth the parame-ters for division of the property. To what date will the court look for a deter-mination of value? Possibilities include the date of separation, the date of fil-ing, and the date of trial. Some states permit a motion to fix the valuationdate. What is the definition of marital property in the state? Does it includeproperty acquired up to the date of separation, the date of filing, or the dateof trial? Is the increase in value of premarital assets marital? Does it matter ifthe increase is passive or active? How about inherited property? Does titlematter? What about premarital property that has been jointly titled? Whatdates will be used to offset liabilities against assets? These are just a few ofthe questions that counsel must answer through knowledge of the applicablestatutes before the chart is devised, so the appropriate figures will be placedin the columns and charts.

At the initial interview, the client will list the assets and their estimatedcurrent values. Then, charts of marital and nonmarital assets may bedevised. The left side of the marital asset portion of the chart lists the assetand title ownership. For those states in which date-of-separation value iscritical, that date and value will be inserted. If there is a document showingthe actual value (a brokerage statement of appraisal, for example), the Bates-stamp number of that document will be listed in the far right column. If thevalue is what the client believes at the time, a notation such as “CS” (clientsays) must be inserted, with the ultimate aim of replacing both the figureand the notation with a provable amount and a Bates-stamp number of thedocumented evidence.

In determining what assets are to be divided, a proposed marital prop-erty list can be offered to the client (see the Assets lists in Appendix 4 for anexample). Real property, bank accounts, stocks and bonds, business interests,partnerships, pensions, retirement accounts, profit sharing plans, 401(k)s—these are all obvious. Less obvious are limited partnership interests, ESOPs,TRAESOPs, stock options, loss carry-forwards, and severance packages, toname a few of the more esoteric assets that may come into play. Such“small” items as jewelry, furs, antiques, collections, and vehicles often addup to a large portion of the estate. Artwork may have appreciated into thou-sands, and even millions, of dollars. Often a dependent spouse has no ideaof what is really involved in the asset base of the case. Perhaps the inde-


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pendent spouse is less than honest about all that is really on the table. Dis-covery, therefore, must be carefully framed to ensure that the asset and lia-bility chart is complete before trial or any final settlement in order to make afair settlement for both parties. (See “What Is the Case Worth?”) Keepingtrack of the assets and their values makes settlement easier and makes trial,where necessary, easy for the judge to comprehend.

The ultimate use of the asset and liability chart is as a trial exhibit. Acomplete chart will show each asset’s value supported by a Bates-stampeddocument. When trial is imminent, copies of each proof document should beattached to the chart. The Bates-stamp numbers of the necessary documentsfor exhibits can then be converted to a corresponding exhibit number, andthe document is ready to be offered in court.

E. Exhibit DocumentationAs the case develops, counsel will identify what types of documents will benecessary as exhibits at trial. This identification should generate a list of theexhibits that will be used, their identifying Bates-stamp number for ease ofretrieval, and the appropriate number of copies for use at trial. While testi-mony is effective to advance the case, documentary evidence can be equallyeffective. A tax return to prove income, for example, is one form of docu-mentary evidence. So, too, are brokerage statements to prove the value ofcertain assets. Expert reports, appraisals, and evaluations of pensions areother examples of evidence that may appear in the family law case. There

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What Is the Case Worth?

Having instant access to the “value” of one’s case is critical.What is the marital pot over whichthe parties are fighting? Although a trial may appear to be the ultimate goal of this preparation,from the client’s point of view a successful resolution is the most favorable settlement of thefinancial portion of the case. Analyzing the settlement received from the client’s perspective islike an equation:

– Legal fees– Expert fees– Other costs of litigation (transcripts, copying fees)– Time missed from work– Cost of supportive mental health professional– Time value of money= Ultimate amount in client’s pockets

In other words, sometimes a settlement is more profitable than going through trial and, maybe,an appeal. But to settle or try a case, counsel must know what the case is worth. This meansnot just an approximation but a value based on the records, appraisals, and documents. Whenopposing counsel calls with an offer, a peek at the bottom line should tell you if the offer is evenin the ballpark.

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are also other forms of evidence that should not be overlooked, and counselshould be gathering them throughout the discovery process.

Report cards and school records are often helpful in custody or childplacement cases. Family photographs, drawings, and cards, letters, and e-mails from the children to a parent may also be useful exhibits.

Evidence Created for Trial

Many jurisdictions will permit certain evidence created by counsel or expertsto be used at trial. This evidence might include summaries prepared by anaccountant, expenses or budget statements created for proof of the monthlyexpenses of a dependent spouse, or other compilations prepared for ease ofpresentation of the facts. Counsel must check local rules of evidence or courtpractice to determine what can be used at trial, especially since these docu-ments may be traditional hearsay. Often the court will accept them as shortcuts for the finder of fact or as aids to the court.

Other kinds of evidence in this category include photographic enlarge-ments on an easel in the court room and videotapes of children in their dailyroutines (“day in the life” videos). Each case will suggest what is necessary;it is up to counsel to have the documents admitted into evidence.

Research Memos

Many cases have issues that are “questions of first impression” or thatrequire memoranda of law to educate the judge. Whether it be new casesrecently decided or evidentiary issues that must be briefed, counsel shouldbe aware of potential legal challenges that may be made and should havethe appropriate memoranda prepared to hand-up to the court. For instance,a judge may not be aware of the impact of a party’s overriding a passwordon a computer, and counsel may need to brief the court on the appropriatewiretap statute and how it applies to the case. Perhaps there is a question ofwhether the judge has the ability to award one or the other parent the rightto take the deduction for the child, and counsel must have the recent casespermitting the finder of fact to make that determination. Counsel should notassume that the judge is knowledgeable on all issues and should, in anexcess of caution, prepare all appropriate research documents.


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CHAPTER 4

Theory of the Case

A. Every Case Needs a TheoryUse and develop a theory as a way of organizing the materials to accomplishyour goal: persuading the finder of fact that what the client wishes to accom-plish is justified. What you want and why the fact finder should award whatyou want are questions to keep in mind.

Your theory is the reason your client should prevail in this case. It is thereason for bringing the action. It is the logical explanation to the court ofwhy the facts fit the law. To put it yet another way, it is a road map for coun-sel as to where the case starts, where it has to go to accomplish the desiredresult, and how it can get there. Without a theory, the case is just a bunch offacts that have no structure and lead nowhere. The client knows the case andwhy the request is reasonable, and, hopefully, so does counsel. However, it isall new to the finder of fact and must be presented in an organized manner,much as a story with a beginning, the meat of the case, and an end.

The theory of the case should provide the structure of the trial. It is theskeleton on which the entire case will be built, why witnesses will be calledand why evidence will be presented. Why should this particular party pre-vail on this evidence? This is your opportunity to tell your version of thefacts, the client’s story. What is it about the facts of this family that could andshould convince this particular judge that your client is correct in asking forthis particular result? In order to prepare your case, you must first answerthese questions. What is your theory and why should your client win?

Starting with the simplest example of a theory, let’s assume that yourcase involves a mother asking for custody of her two-year-old and five-year-old children. She has been a “stay-at-home mom,” totally involved in thecaretaking of the children. Dad has been the traditional wage earner, leavingat eight o’clock in the morning, leaving the feeding and dressing of the chil-dren to their mother, and returning at six o’clock in the evening after the

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children’s dinner. While he occasionally put the children to bed, usually thisresponsibility had been left to your client. One theory for the mother is thatthis is a simple case of preserving the status quo and that the court shouldallow the parties to remain in the same positions in which they placed them-selves before their separation.

What would the theory be on behalf of the father with these facts? Per-haps the mother has attempted to distance him from the children by feedingthe children early and putting them to bed before he gets home. Prior to theseparation, he argues, he was much more involved with their bedtime ritu-als. Or maybe he now recognizes that his prior lack of involvement has notbeen good for the children; he has changed his schedule (and his attitude)and is now prepared to make more time for his children. Perhaps he feelsthat if he takes more responsibility for the children, their mother can (andshould) return to the work force. Exploring your client’s motives and his evi-dence will help develop the theory of the case. The theory might be, “Thechildren are older and now need more stimulation,” or “The children canonly benefit by having a more active father,” or “Dad has moved down theblock and has changed his schedule, and now, while the children are young,is the best time to get them used to having two homes, with equal time ineach home.”

With the financial case, the theory is equally important. On behalf of thedependent wife, where the husband’s self-employment income suddenlybegins to decline at time of separation while comparable companies aredoing well, RAIDS (recently acquired income deficiency syndrome) might bethe theory. (“Your Honor, isn’t it a bit too convenient that this self-employedindividual, who controls his own salary, suddenly makes less money whenhe leaves his wife?”) On behalf of husband, the theory might be that he wasforced to bleed the company during the marriage because his wife was a“shopaholic,” and now, before the company goes bankrupt, he must pre-serve the corporate assets.

Asset division cases also have important theories to be developed. Oncethe dependent spouse gets her distribution, the return on the liquid assetswill provide more than enough income so that alimony will not be necessary,for example. If the husband has sufficient property due to separate assets, agreater division to the wife might be appropriate. If the husband put thewife through medical school, the need for rehabilitative alimony so he cancomplete his education might be a theory. Developing motives from yourclient leads to the development of the all-important theory.

B. Using the TheorySelection of Evidence

Once the theory has been developed, what evidence is necessary to presentto the court in order to prevail? In the custody case, expert reports may bepart of the case. Competing reports, where the conclusion of the expert hasbeen challenged, may be used. If there are allegations of drug use in teenage

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children, validated drug testing reports are probable. In the custody case, thechildren’s report cards may be needed to prove that the children are or arenot doing well in the existing custody arrangement. Photographs or video-tapes to prove or disprove claims that the children have a relationship withthe other parent may be presented. Pictures of the home in which the chil-dren live or where they will live should be presented. Cards and letters fromthe children to your client, showing their relationship, are potential exhibits.The client knows what evidence is available and could be obtained to provehis case, and should be encouraged to think about available documentationto support the theory.

The financial case usually suggests a multitude of exhibits. Some ofthose are

■ Tax returns to prove the income stream and its reduction during thedivorce proceedings

■ Corporate tax returns to prove the increase in retention of earningsfor the corporation while the spouse’s income is being reduced

■ The balance sheet in partnership or corporate returns to show anincrease in loans to officers while showing a decrease in salaries

■ The partnership return to show an unequal draw between the divorc-ing partner and the happily married partner

■ Brokerage statements or other evidence of actual assets held to showassets from which future income may be derived

The financial expert can be used here to help develop both the theory andthe evidence for the financial case. In addition to tax returns and financialstatements, exhibits can be developed through charts and graphs to supportthe theory of the case. A good example of an exhibit prepared for trial is anassets and liabilities chart, supported by evidence that justifies the figures setforth. An expense list showing the needs of the dependent spouse or a print-out of the Quicken file to provide evidence of family finances prior to sepa-ration can be helpful exhibits supporting the theory of the case. Ticket stubs,hotel receipts, copies of menus from favorite expensive restaurants, diaries,and photo albums of luxury vacations may prove the former lifestyle of theparties. Projections of the impact of the asset division on the parties may bean important piece of the case. Copies of brokerage statements and otherevidence of the actual assets at various times since the date of separationmay be introduced.

Once the theory of the case is developed, visualizing the evidence thatcounsel will need to present to prevail is the first use of the theory. Obvi-ously, everything may not be available, but the theory gives a road map as towhat evidence must be gathered or developed for the client to win the day.

Witnesses

Lay WitnessesAll witnesses are called to advance the theory of the case. For lay witnesses,counsel will either depose them or interview them, depending on the size of

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the case and the resources available in the matter. If interviews are the onlymethod of gathering the information from the witness, counsel should con-duct the interview and add the important statements to the trial ledger. Ifdepositions have been taken, the depositions should be reviewed, marked asto significant evidence, and Bates-stamped for the notebook.

You should depose your own witnesses, since the other party’s wit-nesses provide information to the other side. You should, however, get astatement, under oath, from your witnesses so that you are reasonably cer-tain of what to expect from their in-court testimony, to prevent surprises ordeviation from information they have previously reported to you.

Expert WitnessesJust as the list of lay witnesses must be compiled during the discoveryprocess, so must a list of the potential expert witnesses. There are standardtypes of experts in financial cases as well as in custody cases. In financialcases, accountants and business evaluators are expected. Social workers,psychiatrists, and psychologists may be called in the custody case. Inadvancing the theory of the case, however, other expert witnesses might becalled, such as:

■ Experts in “battered spouse syndrome” where there is an allegationof domestic violence

■ Computer experts who can examine a hard drive for proof of e-mailsor pornographic sites visited

■ Private detectives who have followed one of the parties and gatheredevidence of an affair

These are just a few of the experts or quasi-experts who may add to the the-ory of the case and should be included on the potential list of witnesses to becalled.

C. Every Case Needs a ThemeConsidering the number of cases that come before each judge, it is amazingthat a finder of fact remembers any of them. So why is your case differentfrom all other cases? It is the theme of the case that is interwoven into thefacts and the theory of the case. How does a theme differentiate from a the-ory? A theory is a reason why your case should win. A theme is the story ofyour case, how you present your facts in an interesting manner. Like a novelor a fairy tale, a theme takes you from beginning to end in a logical andinteresting manner, to keep the judge’s attention. While the theory of the caseis the structure and organization of the facts to be presented, the theme of thecase is the story line with which the case is told. From opening argument,through all of the testimony, and right through the closing argument, thetheme of the case should be repeated. If the theme of a property distributioncase is, for example, that the parties married when they had nothing and


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then the husband made a great life for his wife but now wants to give her lit-tle or nothing, a Cinderella theme might be appropriate. “Your Honor, thisprince made his Cinderella a princess, and now he hopes the clock willstrike midnight and she’ll be back in rags in the cinders.”

What the theme adds is memorability and helps the court recall the casewhen deciding it. Whatever the theme, it does bring attention to the caseand can make it unforgettable.

D. Developing the ThemeWhere does the theme come from and how does counsel fit it into the case?There are probably ten stories in the world, and we are doomed to repeatthem. After a number of years in practice, counsel has probably heard all ofthem, albeit with twists. From the opening interview, train yourself to beginfitting the facts of the case to some of these familiar stories. Some work, oth-ers don’t. As additional information is received, the theme may develop orchange. In the financial case, for example, where it appears that husband’sbusiness had suddenly began showing losses when wife filed for divorce,“Divorce-itis” might be the theme. (Definition: The lack of desire to earnwhen there is a fear of having to give it to the other spouse.) When the fatherhas suddenly become Superdad after the custody case is filed, the filmKramer vs. Kramer comes to mind. The “born-again dad” is anotherapproach. A theme is developed to tie the facts together in a storytellingmode, and is done with creativity.

Tip Nursery rhymes or even popular TV shows or movies may evoke themes.So can jokes. “Your Honor, this woman wants the Plotnick diamond with-out the Plotnick curse: Mr. Plotnick.”

Fairy tales make great themes and are certainly memorable. Hansel and Gre-tel come to mind in a custody case in which there is a new stepmotherunloved by the children of the marriage. It can also be used in a distributioncase involving a second wife who appears to be making a “grab” for theassets. Any familiar story can be compared to the facts of the case to leave anunforgettable impression in the judge’s mind that will, perhaps, move thejudge to compare your client to the heroine or hero of the story.

E. Using the ThemeOnce a theme is chosen, it must be woven into all aspects of the case. It shouldbe repeated as often as possible, either through use of the words or throughreference to the facts of the story or movie. Develop the facts in such a waythat the theme can be recalled in closing argument. Begin, briefly, with the

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opening argument, “This is another version of the Cinderella story, YourHonor,” weave it into the client’s testimony about their luxurious lifestyle, useit with the expert witness who testifies as to the sudden reduction of support,and summarize it in the closing argument: “As we told you, Your Honor, thisprince elevated his Cinderella to a princely lifestyle and now wants the clockto strike midnight. This court should not permit this to happen.”


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CHAPTER 12

Evidence

A. Evidentiary Rules It is essential to have a detailed, instant working knowledge of the rules ofevidence. This is one of the most important skills available to the triallawyer. Without this knowledge, you will be severely handicapped whentrying a case, particularly if the trial judge is strict and your opponent isskilled with trial objections.

Except for the relevant factual evidence and exclusionary motions con-cerning evidence, the evidentiary rules are the most important aspects of thepresentation of your case, and your opposition to the other party’s case, attrial. Through the effective use of evidentiary objections you should be ableto control the flow of evidence and restrict the introduction of improper evi-dence that is harmful to your client.

Knowledge of the rules of evidentiary foundation for documents is alsocritically important because relevant documents that are not given theproper foundation will not be admissible, and their exclusion from evidencecould make the difference in your case. Likewise, knowledge of those ruleswill prevent you from making simple, curable mistakes in preparation toassure that your evidence will be admitted. Knowledge is power; knowledgeof the rules of evidence gives the trial lawyer great advantage and power intrial.

Although counsel should not advocate making inappropriate eviden-tiary objections, if there is a reasonable chance that your objection may besustained you should make the objection. Do not be discouraged by objec-tions that are overruled, but do listen for the theory that is given by thejudge, either verbally or through the rulings, so that you do not continue tomake objections that fall into the same concept.

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For example, some judges feel that everything said by a party, no matterwhere said or what it relates to, is an exception to the hearsay rule. Whilethat is incorrect, if that is how the judge views the hearsay rule (a rule that ismisunderstood by most judges and lawyers), then you need to adapt yourtrial style to accommodate that perspective. However, you might want, insuch a situation, to ask the judge if you may have a continuing objection toall such evidence on the grounds you have previously stated. Whether ornot that will be sufficient on appeal will depend on the law in your particu-lar jurisdiction.

Evidentiary objections are necessary to keep the record and the flow ofevidence straight. They are necessary to protect your record for an appeal.Unfortunately, few cases are reversed in an appellate court on evidentiaryobjections, except in egregious circumstances.

These evidentiary objections may keep your opponent off balance andcause him to be nervous and unsettled, thus forgetting to ask some questionsor miss an entire line of questioning. Sometimes, if an evidentiary objectionis repeatedly sustained, the examiner will move off the subject entirely, thusabandoning some area that he initially thought was relevant to avoid furtherembarrassment. If your opponent reacts in this way, you have achieved animportant tactical victory for your client at that point in the trial. Whethersustained or not, objections will break a train of questioning as well as giveyour witness time for composure. Making an objection will break a series ofquestions that are going too fast to give your witness time to think.

You should alert your client/witness to listen carefully to any objectionsyou make, as the objection may alert them to a potential problem with aquestion. For example, a question that is compound may create confusion bythe answer, and the witness should be advised to carefully listen to the ques-tion and identify the multiple parts of the question that may result in confu-sion if a “yes” or “no” answer was given.

An objection on the grounds that the question is vague or ambiguousshould alert your witness to the fact that the question is not clear (at leastnot in your mind). The witness should listen to the question carefully tomake sure he understands it before he answers. You do not want a witnessto answer a question he might not understand and, therefore, lead to confu-sion of the record.

There are other objections that can alert witnesses to problems in thequestion:

“Objection! Assumes facts not in evidence.”“Objection! Calls for speculation.”“Objection! Calls for state of mind of another” (really an offshoot of

speculation).

Making an objection may give you an opportunity to educate your witnessthrough a “speaking” objection. An alert and intelligent witness will pickup on the reason for the objection you are making. This is something thatyou should discuss with your client or the witness when preparing them totestify.

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Direct Evidence

Although many lawyers assume that direct examination is the easy part of atrial, direct evidence is often very difficult to present in a logical, coherentway. Direct evidence is the most important part of the case because it is yourbest chance to satisfy your burdens of proof on the various issues in the case.The rules of evidence may differ when dealing with direct evidence, cross-examination, redirect examination, and re-cross-examination.

Redirect Evidence

In many jurisdictions, redirect evidence will be limited to matters covered oncross-examination. This means that if you hold back some evidence on direct,hoping that the subject will be covered on cross-examination, you may beprecluded from introducing it at all. If the cross-examiner is careful, your wit-ness will be asked only very specific questions on cross-examination; if thesubject is not brought out, you may be prevented from opening a new areaon cross-examination.

Leading Questions

A leading question is one that suggests the desired answer to the witness orthat puts the desired answer in the mouth of the witness—to all appear-ances, the lawyer is providing the testimony. Leading questions are almostalways objectionable on direct examination, although there are certain excep-tions to this general rule. The Federal Rules of Evidence are a good referencepoint, even if your jurisdiction does not follow them.

Many lawyers think that all leading questions are prohibited duringdirect examination. They are usually not prohibited on direct examinationwhen used in connection with preliminary, foundational, or introductorymatters, however, and judges will often get short-tempered when you makethese objections during this examination, even though they may be techni-cally correct. For example:

Counsel: You have three children?Witness: Yes, ma’am.Counsel: Their names are Sheryl, Michael, and Lisa?Witness: That’s correct.

These are leading questions, but they are not harmful. Everyone knows theyare foundational questions, and they move the testimony along to get towhat otherwise may be disputed. Save your fire for the important questions.

Pursuant to Rule 611, Mode and Order of Interrogation and Presenta-tion, and other evidentiary rules, leading questions may also be used ondirect examination in connection with the examination of a hostile witnessthat you call as part of your direct case. A hostile witness, called as such,may be examined as though on cross-examination and leading questions are

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then proper. As a general rule, you are not bound by the testimony of a hos-tile witness, although you are bound by the testimony of a friendly witness.Thus, it is important to designate a hostile witness as such to avoid this con-cept of evidence.

Counsel: Your Honor, I call Jessica Cooper [the husband’s girl-friend] as on cross-examination.

If your jurisdiction permits, leading questions may be asked during thisexamination.

One of the problems with leading questions is that the suggestion of theanswer may cause witnesses to give false or only partially true testimonybecause they think that is what you want. Thus, you must be careful whenobjecting on the grounds of “leading,” if what you really want is the falsetestimony that you can later disprove.

Leading questions in general should be avoided as a matter of just plain,good trial policy because, if you have reasonably good witnesses, you wantthem to project themselves as honest and forthright. You don’t want the judgeto speculate that you do not trust the witnesses or that you feel it is necessaryto put words into their mouth. Chapter 8, Direct Examination, should bereviewed for the discussion on how to avoid asking leading questions.

Other questions to avoid are compound questions, which call foranswers to two or more questions at the same time. The answers often yieldconfusion or misinformation. There is no specific Federal Rule of Evidencethat prohibits compound questions, but Rule 611 allows the court to sustainsuch an objection. For example:

Counsel: Mr. Lawson, who owns the company and sets theamount of your salary?”

It’s possible that Mr. Lawson does own the company but the bank, to whomhe owes money, sets his salary. How does Mr. Lawson answer that questionto give the information to the court? The question must be broken down intothe two parts to get the proper information into the record.

Cross-Examination

As we have said, on cross-examination, you want the focus to be on you andyour questions; you do not want witnesses to tell a story or explain theirversion of things. Therefore, leading questions on cross-examination are per-missible and, in fact, desirable. Tight leading questions on cross-examinationbecome factual assertions that you want the witness to agree with during thecourse of testimony. This kind of questioning normally should be done in afriendly tone to elicit the cooperation of the witness and prevent them frombecoming defensive. By using a friendly tone, you can generally cause a wit-ness to be less cautious; an angry or sarcastic tone will probably result in ahostile witness, and a very hostile witness often makes mistakes on whichyou can capitalize.

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Often, witnesses will try to explain their answers, trying to wigglearound your very controlled leading questions. Where that occurs, try tocontrol the witness by immediately moving to strike nonresponsive answersto the question; when the judge does that several times, the witness will bemore reluctant to volunteer information or not directly answer your ques-tion. While there is no specific Federal Rule of Evidence that prohibits nonre-sponsive answers, Rule 611 allows the court to sustain such an objection.

Do not ask a question that calls for a narrative answer; this rule is virtu-ally without exception. This is exactly the opposite technique used on directexamination. Avoid letting a witness on cross-examination give a narrativeanswer to a question. Be particularly careful not to ask a question that callsfor a narrative answer—no “why” or “what” questions should ever be askedon cross-examination. Open-ended questions will give witnesses too muchopportunity to tell their story, which is not what you want the other side’switnesses to be doing. There is no specific Federal Rule of Evidence that pro-hibits narrative answers, but, again, where the Federal Rules are applicable,Rule 611 allows the court to sustain such an objection.

As with everything else, there are exceptions to this rule about no ques-tions calling for narrative answers on cross examination. For example, whenpresented with an expert witness who has taken an absurd position, if youare a skilled cross-examiner, you may ask an open-ended question of thatwitness to allow her to further bury herself. This is very risky and should beattempted when your skills are such that you know that the more the wit-ness testifies, the more ridiculous will be her testimony. Since most expertsare very facile with the facts, there must be evidence that can expose theirtestimony. Otherwise, their testimony will be unrebutted and you will beheld to it.

Another objection may arise when opposing counsel is asking an argu-mentative question of your witness. An argumentative question is one thatchallenges a witness about an inference that the witness has drawn from thefacts in the case. For example:

Witness: My husband always paid cash for theimprovements to our house.

Opposing Counsel: You didn’t actually see him pay the contrac-tors, did you?

Witness: He didn’t write a check from our checkbook.Opposing Counsel: You didn’t see him pay the contractors?Witness: There was no other way for him to pay them”.Opposing Counsel: How can you expect the court to believe you

when you didn’t see the cash?Counsel: Objection, Your Honor. Counsel is arguing

with the witness.

Argumentative questions are generally not permitted. Again, while there isno specific Federal Rule of Evidence that prohibits argumentative questions,

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Rule 611 allows the court to sustain such an objection. Questions that beginwith such things as, “How can you expect . . .” and “Do you really . . .” areprobably argumentative and are questions to which an objection should beraised.

It is also improper to misquote the witness during cross-examination.An objection on that ground will generally, though not always, be sustained.This is a very important objection to make, even if not regularly sustained bythe court. An objection is the best way to alert your witness that she is beingmisquoted. For example:

Witness: My husband usually came home at 8 pm andthe children were put to bed at 7 pm.

Opposing Counsel: So you’re telling this court that your husbandnever put the children to bed?

Counsel: Objection, Your Honor. That was not the testi-mony.

B. List of Basic Evidentiary Objections There are basic evidentiary objections that should be in every lawyer’s arse-nal. The Federal Rules, even if not adopted in your jurisdiction, are an excel-lent guide. Rule 611 provides that the court shall exercise reasonable controlover the mode and order of interrogating witnesses and presenting evidenceso as to (1) make the interrogation and presentation effective for the ascer-tainment of the truth, (2) avoid needless consumption of time, and (3) pro-tect witnesses from harassment or undue embarrassment.

General Evidentiary Objections

General evidentiary objections should be reviewed in your jurisdiction’scode of evidence. They include:

AmbiguousUnintelligibleVagueArgumentativeAsked and answered CumulativeAssumes facts not in evidenceLack of foundation (authentication of instruments or authentication of

telephone conversations and voices)Best evidence (this objection is virtually gone from the arsenal of evi-

dence objections unless there is a valid question about the authen-ticity or content of the document that cannot be resolved by use of acopy or other secondary evidence)

Compound questionCompromise and offers to compromise

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Mediation discussions (although not covered by any specific FederalRule, such discussions are now covered by many specific state evi-dence rules)

Lack of qualification (for expert witnesses)

Other objections include:

“Objection, Your Honor. Calls for an opinion/conclusion.” A lay witnessis not permitted to give opinion or conclusion testimony and anexpert may do so only within the scope of the witness’s expertise.This assumes that the witness has the proper factual foundationupon which to render an opinion or reach a conclusion.

“Objection, Your Honor. Calls for speculation.” The witness is not toassume or guess.

“Objection, Your Honor. This witness is not competent to testify aboutthis matter.” Rule 703, Bases of Opinion Testimony by Experts, pro-vides that “a witness may not testify to a matter unless evidence isintroduced sufficient to support a finding that the witness has per-sonal knowledge of the matter.” This objection does not apply toexpert witnesses.

Hearsay and Its Exceptions

The most used objection is that of hearsay. This objection has many excep-tions, so counsel must be prepared for the exceptions to the hearsay rule inadvance of trial. The hearsay objection itself applies only to assertive state-ments, offered to prove the truth of the matters contained within the state-ment. There are four types of statements: declarative, imperative, exclama-tory, and interrogatory.

■ Only declarative statements normally fall within the hearsay rule.These are statements that declare or assert facts, including state ofmind, and that are offered to prove the truth of the matter stated.

■ Imperative statements (those that give orders), exclamatory state-ments, and interrogatory statements usually fall outside the hearsaydefinition. If, however, there is a statement within the imperativestatement offered to prove the truth of the matter, the hearsay objec-tion would apply.

■ Assertive acts, such as shakes of the head or other nonverbal conduct,are within the scope of the hearsay definition and should be treatedthe same as verbal hearsay statements.

■ Non-assertive conduct or acts may be treated as hearsay if the wit-ness is offering evidence to prove a particular belief. For example,when a decedent is shown to have engaged in a line of business com-munications at or about the time a will is drafted, such letters writtenon business matters would tend to show competence to execute awill.

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Even if a statement is assertive, it is not subject to the hearsay rule unless theproponent offers the statement to prove the truth of the assertion. In fact, anout-of-court statement is technically not hearsay unless it is offered to provethe truth of the matter stated therein.

Technically any out-of court-statement made by anyone is hearsay, sub-ject to admission only if it falls within an exception to the hearsay rule.Unfortunately, many judges will automatically take the position that if it is astatement made by a party, it is either not hearsay or is automatically anexception to the hearsay rule. There is no exception to the hearsay rule for allstatements made by a party to the litigation. When a hearsay objection ismade, the burden shifts to the proponent of the evidence to state the excep-tion and persuade the court that the proffered evidence comes within thescope of the exception. Article VIII, Rules 801–807, define hearsay and itsexceptions. The following are the exceptions to the hearsay rule.

Admission of a Party OpponentRule 801(d)(2): The admission of a party is an exception to the hearsay exclu-sionary rule. The foundation to establish the exception to the rule is:

1. The witness heard the party or witness aligned with the party makethe statement.

2. The statement is inconsistent with the statement or position theparty-opponent made or is taking at trial.

Adoptive AdmissionsThe foundation to establish the exception to the rule is:

1. The declarant made a statement in the presence of the witness.2. The party heard and understood the statement.3. The party made a statement that expressed agreement with the

declarant’s statement. This is an express adoptive admission.

Implied Adoption by Silence The foundation to establish the exception to the rule is:

1. The declarant made a statement.2. The statement was an accusation.3. The declarant made the statement in the presence of the party.4. The party heard and understood the statement.5. The party had the opportunity to deny the statement.6. The party either remained silent or made an evasive or equivocal

reply.7. Under similar circumstances, a reasonable person in the position of

the party would have immediately denied the accusation.

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Vicarious Admission The foundation to establish the exception to the rule is:

1. The declarant was an agent of the party at the time the statementwas made.

2. The declarant was authorized to make statements with regard to thesubject matter being discussed.

3. The statement is inconsistent with the position the party-opponentis taking at trial.

4. The statement is logically relevant to an issue the proponent has aright to present at trial.

Business Records/Hospital RecordsRule 803(6): The foundational requirements for admission of documents asbusiness records generally are:

1. The writing was made in the regular course of a business.2. The writing was made at or near the time of the act, condition, or

event.3. The custodian or other qualified witness testifies to its identity and

the mode of its preparation.4. The sources of information and method and time of preparation

were such as to indicate its trustworthiness.

TIP The foundational requirements for business or hospital records may not bewithin the personal knowledge of the custodian of records and, therefore,the attempt to establish the foundation may be blocked by the use of thehearsay objection. Lack of such personal knowledge should be establishedby voir dire examination of the witness before opposing counsel or the wit-ness is aware of the attack on the foundation.

Absence of Entry Rule 803(7): Evidence of the absence from the records of a business of arecord of an asserted act, condition, or event is not made inadmissible by thehearsay rule when offered to prove the nonoccurrence of the act or event, orthe nonexistence of the condition, if:

1. It was the regular course of that business to make records of all suchacts, conditions, or events at or near the time of the act, condition, orevent and to preserve them; and

2. The sources of information and method and time of preparation ofthe records of that business were such that the absence of a record ofan act, condition, or event is a trustworthy indication that the act orevent did not occur or the condition did not exist.


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In some jurisdictions, a business record may be received in evidence if it isaccompanied by an affidavit or declaration from the custodian of records ofthe entity. The requirements for such an affidavit or declaration are generally:

1. The affiant is the duly authorized custodian of the records or otherqualified witness and has authority to certify the records.

2. The copy is a true copy of all the records described in the subpoenaduces tecum, or pursuant to subdivision (e) of Section 1560 therecords were delivered to the attorney, the attorney’s representative,or deposition officer for copying at the custodian’s or witness’splace of business, as the case may be.

3. The records were prepared by the personnel of the business in theordinary course of business at or near the time of the act, condition,or event.

Contemporaneous StatementsA statement describing or explaining an event or condition made while thewitness was perceiving the event or condition or immediately thereafter isnot excluded by the hearsay rule. The foundation is established by showingthat the statement was made at or about the time of the event. In some juris-dictions, this is called the excited utterance exception to the hearsay rule andthe requirements are slightly expanded, as follows:

1. Purports to narrate, describe, or explain an act, condition, or eventperceived by the declarant; and

2. Was made spontaneously while the declarant was under the stressof excitement caused by such perception.

3. The motion precluded the testimony before the judge heard any-thing that might have influenced the case and was decided beforethe evidence was presented.

Declarations against Interest Rule 804(b)(3): A statement is assumed to be true and hence admissible if, atthe time of its making, it was so contrary to the declarant’s financial or legalinterests that a reasonable person would not have falsely made the statement.

The foundation required is:

1. The witness is unavailable as a witness and was at the time of itsmaking.

2. The statement is far contrary to the declarant’s pecuniary or propri-etary interest, or subjects the declarant to criminal or civil liability,or will render invalid a claim by him against another.

3. A reasonable person in his position would not have made the state-ment unless he believed it was true.

Excited Utterances Rule 803(2): A statement relating to a startling event or condition made whilethe declarant was under the stress of excitement caused by the event or con-dition. The foundation to establish the exception to the rule is to:

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1. Establish that the testimony relates to a startling event or condition,and

2. Was made while the declarant was under stress from the event orcondition.

Former Testimony Rule 804(b)(1): In many jurisdictions, evidence of a prior statement made bya declarant is not made inadmissible by the hearsay rule if the declarant isdeceased or otherwise unavailable and the proponent of introducing thestatement establishes each of the following:

1. The statement relates to acts or events relevant to a criminal prose-cution under provisions of the penal laws of the jurisdiction or isagainst the interests of the party or witness.

2. A verbatim transcript, copy, or record of the statement exists. Arecord may include a statement preserved by means of an audio orvideo recording or equivalent technology.

3. The statement relates to acts or events within the personal knowl-edge of the declarant.

4. The statement was made under oath or affirmation in an affidavit;or was made at a deposition, preliminary hearing, grand jury hear-ing, or other proceeding in compliance with law, and was madeunder penalty of perjury.

5. The statement was made under circumstances that would indicateits trustworthiness and render the witness’s statement particularlyworthy of belief. For purposes of this subdivision, circumstances rel-evant to the issue of trustworthiness include, but are not limited to,all of the following:a. Whether the statement was made in contemplation of a pending

or anticipated criminal or civil matter, in which the declarant hadan interest, other than as a witness

b. Whether the declarant had a bias or motive for fabricating thestatement, and the extent of any bias or motive

c. Whether the statement is corroborated by evidence other thanstatements that are admissible only pursuant to this section

d. Whether the statement was a statement against the declarant’sinterest

In some jurisdictions, evidence of former testimony is not made inadmissibleby reason of the hearsay rule if:

1. The former testimony is offered against a person who offered it inevidence in his own behalf on the former occasion or against thesuccessor in interest of such person and is presently unavailable as awitness in the pending action; or

2. The party against whom the former testimony is offered was a partyto the action or proceeding in which the testimony was given andhad the right and opportunity to cross-examine the declarant withan interest and motive similar to that which he has at the hearing


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The admissibility of former testimony under this section is subject to thesame limitations and objections as though the declarant were testifying atthe hearing, except that former testimony offered under this section is notsubject to:

3. Objections to the form of the question which were not made at thetime the former testimony was given

4. Objections based on competency or privilege which did not exist atthe time the former testimony was given

The Federal Rules require that the witness be unavailable and that the for-mer testimony was offered in his own behalf on the former occasion oragainst the successor in interest of such person, or offered against a party tothe former action who had the right to cross-examine that witness subject toall evidentiary objections that were proper at that proceeding, but new objec-tions cannot be raised at this proceeding.

The theory behind this rule is that because the party has had his oppor-tunity to cross-examine, the primary objection to hearsay evidence—lack ofopportunity to cross-examine the declarant—is not applicable. On the otherhand, this rule does not make the former testimony admissible where theparty against whom it is offered did not have a similar interest and motiveto cross-examine the declarant. The determination of similarity of interestand motive in cross-examination should be based on practical considerationsand not merely on the similarity of the party’s position in the two cases. Forexample, testimony contained in a deposition that was taken, but not offeredin evidence at the trial, in a different action should be excluded if the judgedetermines that the deposition was taken for discovery purposes and thatthe party did not subject the witness to a thorough cross-examinationbecause he sought to avoid a premature revelation of the weakness in thetestimony of the witness or in the adverse party’s case. In such a situation,the party’s interest and motive for cross-examination on the previous occa-sion would have been substantially different from his present interest andmotive.

Former Testimony of a Non-PartyEvidence of former testimony is not made inadmissible by the hearsay rule if:

1. The declarant is unavailable as a witness.2. The former testimony is offered in a civil action.3. The issue is such that the party to the action or proceeding in which

the former testimony was given had the right and opportunity tocross-examine the declarant with an interest and motive similar tothat which the party against whom the testimony is offered has atthe hearing.

The concept of this exception to the hearsay rule is that former testimony bya non-party witness should be subject to the same limitations and objectionsas though the declarant were testifying at the hearing, except that former tes-timony offered under this section is not subject to objections based on com-

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petency or privilege which did not exist at the time the former testimonywas given. This rule, which is codified as California Evidence Code §1292and applies only in civil cases, provides a hearsay exception for testimonygiven at the previous proceeding by a person who is now unavailable as awitness.

Judgment of Previous ConvictionRule 803(22): In many jurisdictions, evidence of a final judgment adjudging aperson guilty of a crime punishable as a felony is not made inadmissible bythe hearsay rule when offered in a civil action to prove any fact essential tothe judgment whether or not the judgment was based on a plea of nolo con-tendere.

Learned TreatisesRule 803(18): The foundation required for books relied on by experts is:

1. The book is a recognized treatise in the area in which the expert hastestified.

2. In some jurisdictions, it is required that the expert witness testifythat it is a book that the expert witness has used or relied on.

3. Once the foundation has been laid, portions of the book may be read,as evidence, in contradiction of the testimony of the expert witness.

Present Statement ImpressionsRule 803(1): The foundation required is:

1. An event occurred.2. The declarant had knowledge of the event.3. The declarant made the statements during or very shortly after the

event.4. The statement relates to the event.5. In some jurisdictions, but not under Rule 803(5), the witness must

have observed the same event.6. The witness formerly gained personal knowledge of the fact or

event recorded.7. The witness prepared a record of the facts.8. All courts accept the foundation if the witness personally prepared

the record.9. Most courts accept the record if a third party prepared the record

but the witness verified it while the events were still fresh in thememory of the witness.

10. The witness prepared the record while the events were fresh inmind.

11. The witness testifies that the record was accurate when prepared.12. At trial, the witness testifies that they can not completely and accu-

rately recall the facts even after reviewing the document. The Fed-eral Rule merely requires that the witness cannot remember “fullyand accurately.”


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Present Recollection Refreshed or Revived Rule 612: The foundation to use this evidentiary technique is:

1. Establish the witness’s failure of memory (full or partial).2. Mark the refreshing document for identification.3. Show the witness the refreshing document and ask the witness to

read it silently.4. Ask the witness if the witness’s memory is refreshed with respect to

the forgotten fact.5. Take the refreshing exhibit from the witness.6. Re-ask the question that drew the original failure of memory.

Declarations of State of Mind or EmotionThe foundation required is:

1. The statement must be made contemporaneously, or nearly so, withthe time of the relevant state of mind.

2. Where the statement was made.3. Who was present.4. When this foundation has been established, the statement indicating

state of mind can be introduced.

Public Records Rule 803(8): Records, reports, statements, or data compilations, in any form,of public offices or agencies are generally an exception to the hearsay objec-tion, unless the statement lacks trustworthiness.

Reputation as to CharacterRule 803(21): Evidence of reputation in a community is not made inadmissi-ble by the hearsay rule if the reputation concerns the interest of the public inproperty in the community and the reputation arose before controversy.

Evidence of a person’s general reputation with reference to his characteror a trait of his character at a relevant time in the community in which hethen resided or in a group with which he then habitually associated is notmade inadmissible by the hearsay rule.

Spontaneous Exclamations Rule 803(3): Evidence of a statement is not made inadmissible by the hearsayrule if the statement:

1. Purports to narrate, describe, or explain an act, condition, or eventperceived by the declarant; and

2. Was made spontaneously while the declarant was under the stressof excitement caused by such perception.

C. Foundation for Personal TestimonyJudicial Notice

Rule 201: The court may take judicial notice of facts that are not subject to rea-sonable dispute in that they are either (1) generally known within the territo-

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rial jurisdiction of the trial court or (2) capable of accurate and ready determi-nation by resort to sources whose accuracy cannot reasonably be questioned.

Some states, for example California, make a distinction between recordsof courts and legislatures and other facts in terms of mandatory or discre-tionary judicial notice.

There may be notice requirements that differ depending on whether it ismandatory or discretionary judicial notice.

Knowing the rules of foundation for the introduction of various types ofevidence, and the converse, knowing the rules to prevent the introduction ofevidence, is a very important aspect of trial work.

The first basic foundation of all evidence, except for evidence from anexpert witness, is personal knowledge of the matter that is being testified to.If you believe that a witness does not have personal knowledge of the mat-ters about which questions are being asked, ask the court to allow you tovoir dire the witness and try to establish that the witness does not have per-sonal knowledge of the matters under inquiry. This might be because thewitness was not personally present at the time of the event or when the con-versation occurred, if the conversation would otherwise come in under somehearsay exception. Absent the foundation of personal knowledge, the testi-mony should not be permitted. The objection would be, “Objection; founda-tion.” If the court requests more, then the objection would be, “Lack of foun-dation to establish personal knowledge”(Rule 602).

Voir dire also gives you a chance to lower the impact of that witness’stestimony by showing the court, before the witness testifies on direct exami-nation, the areas where their testimony is weak.

When making objections, try to state them on the most basic of legalgrounds. State all objections that you reasonably believe apply. Cumulativeobjections after an objection is overruled are not generally permitted. Inmost places, you are not permitted to make speaking objections unless theyare made succinctly and on proper evidentiary grounds. Beware of speakingobjections, as they are a way for the lawyer to educate the witness, unlessthat is your intention. When appropriate, object to your opponent’s speakingobjection and ask the judge to instruct your opposing counsel not to makespeaking objections.

D. Authentication of Potential Documentary EvidenceAuthentication of a Private Writing

You must establish the following:

1. That the witness personally observed the execution of the document2. When the document was executed3. Who was present at the time of execution4. That the document presented is recognized as the document that the

witness observed being signed5. How the witness knows that the documents being used at trial are

one and the same as that which was observed

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6. Identification of the signatures of the parties is generally sufficientauthentication for the admission of a document.

HandwritingRule 901(b)(2) allows for the authentication of a signature by a person whonever saw the person actually write a document. If the witness merely sawexamples of the person’s handwriting/signature in non-litigation settings butcan establish reliability they may testify. The foundational requirements are:

1. The witness has a good basis, not relating to the litigation, to recog-nize the handwriting or signature.

2. The witness is familiar with the author’s handwriting in circum-stances not relating to the litigation.

3. The witness recognizes the author’s handwriting on the document.

The Reply Letter Doctrine The Federal Rules permit evidence of a letter written in reply to another let-ter which makes reference to the original letter. Rule 106 states, “Where partof an act, declaration, conversation, or writing is given in evidence by oneparty, the whole on the same subject may be inquired into by an adverseparty; when a letter is read, the answer may be given; and when a detachedact, declaration, conversation, or writing is given in evidence, any other act,declaration, conversation, or writing which is necessary to make it under-stood may also be given in evidence.”

However, note that this rule only states that it applies to “a writing orrecorded statement” although actual practice may extend the rule to oralstatements also.

The foundation to be laid is:

1. If the witness mailed a letter to someone and in due course therewas a reply letter which refers to, or purports to respond to, the firstletter, the reply letter doctrine comes into play. This doctrinerequires the following foundation:

2. The witness prepared the first letter.3. The witness placed the letter in an envelope and mailed it, properly

stamped to the addressee.4. The letter was not returned by the post office.5. The second letter arrived at a later date, in due course via the mail.6. The second letter referred to the first letter or was responsive to it.7. The second letter contains the name of the author.8. The witness recognizes the second letter as the exhibit and explains

how he recognizes the second letter.

Authentication of Business Writings

The proof required for authentication of a business writing is different fromthe proof required to overcome the hearsay objection to a document thatpurports to be a business record.

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The authentication doctrine is designed to establish that the documentcame from within the business system, while the proof required to overcomethe hearsay objection is designed to establish that the document’s internal con-tents are sufficiently reliable to be received in evidence. These two founda-tional requirements should be provided simultaneously. Other requirements:

1. The witness has personal knowledge of the business’s filing system.2. The witness removed a record from a certain file.3. It was the correct file for documents relating to this case.4. The witness can identify the file obtained from the business filing

system as the one being offered into evidence.5. The witness testifies as to the basis of knowing how he/she can

identify the exhibit being offered.

TIP It is usual to offer business records by a custodian of records declaration.Any conclusionary statements in such a declaration are subject to a motionto strike and, when that is done, the documents sought to be admitted willhave no foundation.

The Hearsay Objection Exception for Business Records Rule 803(6): For manually entered records, you must show, through the testi-mony of a custodian of records or a person who has knowledge of therecordkeeping system, that:

1. The statement is contained in a memorandum, report, record, ordata compilation

2. It records acts, events, conditions, opinions, or diagnoses.3. It was made at or near the time the act or event took place.4. It is by or from a person who had personal knowledge of the event

or received information transmitted from a person with personalknowledge of the event or act.

5. The person recording the event had a business duty to make andprepare such records and entries.

6. The record is kept in the course of a regularly conducted businessactivity.

7. It was the regular practice of the business to make such a record.

For computer-generated records, you must provide evidence of all of theforegoing facts plus:

8. The computer and the program used are generally accepted in thefield, or there is evidence to establish the manner of creation andreliability of the software program used in the creation and regener-ation of these particular records.

9. There is a procedure for ensuring the accuracy and identification oferrors.

10. The computer was in good working order at the relevant times.


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11. The computer operator possessed the knowledge and training tocorrectly operate the computer.

12. The proposed exhibit was requested from the computer, identifyingthe manner of the generation of the document.

13. The witness recognizes the proposed exhibit as the document gener-ated by the computer in response to the request for the informationrequested.

14. All non-common symbols and terms are specifically identified bythe witness.

Faxed DocumentsAlthough fax technology is comparatively new, the pertinent evidentiaryprinciples are time-honored. Whenever a proponent of evidence offers a doc-ument into evidence they must establish the preliminary foundation estab-lishing that the proposed exhibit is what they claim it is.

Rule 901(E) provides that when there is a preliminary question aboutthe authenticity of a document, the test is whether the proponent has pro-vided foundational evidence “to support a finding that the matter in ques-tion is what its proponent claims.”

In a general sense the foundation required for a received documentwould be as follows:

1. The receiving business uses a fax machine.2. The machine accurately receives copies of documents. This would

be shown by testimony comparing received faxed documents withmailed original documents.

3. The document proposed was received by the business fax machine.4. The printed identification symbols (telephone numbers or names)

were automatically recorded by the machine when it received theproposed document.

5. The sender can be identified from the identification symbols.

If you are attempting to lay the foundation with regard to a document beingsent, to the foregoing foundational information, you would have to add:

6. A copy of the computer generated verification of transmission,either by a specific individual page or a printout of the transmissionlog.

7. Although it would be more difficult to establish that the fax machinesends accurate documents, testimony that there have been no com-plaints (which could draw a hearsay objection) should suffice.

Official Writings Under Rule 803, the required evidentiary foundation for the admission

of these documents is:

1. The document purports to be a copy of an official writing or record.2. It is accompanied by, or has stamped on it, an official seal or certi-

fication.

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3. The certification or seal states that the signatory is a custodian ofofficial records.

4. The certificate states that the document is a true and accurate copyof an official record or document.

Authentication of Oral Statements

The evidentiary foundation required to establish the voice of someone otherthan the witness testifying is:

1. The specific time and place of the hearing of the voice2. The basis of the witness being able to identify the voice of the other

person3. That the witness can identify the voice of the other person4. The statements made by the other person during the subject conver-

sation, which statements must then otherwise overcome otherhearsay objections

TIP Be sure to avoid any wiretapping issues — do not allow yourself to listento any tapes that violate wiretapping or other rights of privacy that couldcause you to be excluded as the lawyer in the case.

Telephone Directory DoctrineThis parallels the reply letter doctrine in theory and concept. Here generalreliability, akin to the concept of judicial notice, is placed in the accuracy ofthe telephone directory. The foundation required to avail yourself of thisdoctrine is:

1. The telephone number assigns a certain number to the person.2. The witness called that telephone number.3. The witness asked for the person to whom that telephone number is

assigned.4. The speaker identified himself or herself as the person asked for by

the witness.5. Any other circumstances, including knowledge of subject matter,

voice identification, or other matters showing that the personanswering the telephone was the person to whom the number wasassigned.

This still does not overcome other hearsay objections, but does establishauthentication of the speaker. In these kinds of situations, where there aremultiple potential objections that must be raised in series, be alert to the pro-cedure that must be followed at each step of the way, making the foundationobjections before the hearsay and other objections.


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TIP Be aware that in many jurisdictions, tape recordings of private or tele-phone conversations are either prohibited by criminal statute or protectedfrom introduction into evidence on public policy grounds.

Tape RecordingsKnowledge of the contents of an illegally obtained tape recording mayrequire you to refuse, or to remove yourself from, the case for ethical rea-sons. You must be aware of the wiretap laws of your jurisdiction, as theychange from state to state. The federal wiretap laws must also be carefullyreviewed. Although the validity of the underlying theory and the reliabilityof tape recorders in general are so well accepted that a judge may take judi-cial notice of the elements of foundation, because of the ease of alteration ofa tape, if a foundation objection to a tape recording is made, you must beprepared to introduce the following evidence (note that this foundation doesnot overcome the possible hearsay objections that still exist):

1. The operator of the recording equipment understood how to use therecorder and used it properly.

2. The conversation was recorded by the operator at a particular timeand place.

3. At the time of the recording, the equipment was in good operatingorder.

4. The conversation was overheard by the tape operator and the tape,when made, is an accurate recordation of the conversation. This willrequire the witness to testify that the tape was listened to immedi-ately after the recordation to verify the accuracy and completenessof the recordation.

5. The witness testifies as to the custody of the tape from the time ofrecordation until the time it is offered into evidence.

E. Demonstrative Evidence Authentication of a Diagram

1. The diagram depicts a certain area or object.2. The witness is familiar with that area or object as of the relevant

time.3. The witness explains the basis of his or her familiarity with the area

of object at the relevant time.4. The diagram is an accurate depiction of that area or object at the rel-

evant time.

Marking a Diagram Although this is not relevant to having the original diagram received in evi-dence, if the original diagram is marked, the following should be done, and

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may be required, if the diagram is marked, either before or after the receiptin evidence of the unmarked diagram:

1. The specific marks to be made on the record2. The fact that the witness has complied with the request to mark the

original diagram

TIP When the witness refers to “here,” “that way,” or uses such terms, the obli-gation of the lawyer is to identify for the record exactly what is meant bythe use of those terms so they can be understood in the written record.

Objects

1. The unique characteristic of the object.2. The witness observed the object on a previous occasion or on the

relevant occasion.3. The witness identifies the object as the one observed at the relevant

time.4. The basis of that identification.5. The condition of the object at the time offered in evidence is the

same as when previously seen.

Photographs

1. The witness is familiar with the object or scene depicted in the pho-tograph.

2. The witness explains the basis for his or her familiarity with theobject or scene.

3. The witness recognizes the object or scene in the photograph.4. The photograph is a “fair,” “accurate,” “true,” or “good” depiction

of the object or scene at the relevant time.

TIP The witness does not have to be the person who took the photograph.

Motion Pictures and Videotapes

1. The operator was qualified to use the equipment that recorded theevent.

2. The equipment was in good working condition at the time of therecordation of the event depicted.

3. The operator used the proper procedures to record the event.4. The operator accounts for the custody of the film since the recording

was made.5. The recording is an accurate or good reproduction of the original

scene as it existed at the time of the recordation.

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Scientific Evidence

The general concept is that:1. The witness is qualified to establish the theory’s validity and the

instruments or devices used.2. The underlying theory or concept is valid, including testimony from

the witness as to why that is so.3. The underlying theory or concept is generally accepted as valid,

although there has been a relaxing of strict compliance with thatrule, which is called the Kelly-Frye standard.

4. Daubert now sets the new standard with regard to these kinds ofmatters and makes the judge a gatekeeper.

5. The witness, who may be a second witness, is qualified to conductand interpret the tests or information. If using an instrument, it wasthen in good working order.

6. Proper procedures were used when administering the test or usingthe instrument.

7. The results are stated and explained.

F. Credibility Prior Inconsistent Statements

1. For cross-examination, although not as part of the foundation, try toget the witnesses to concede that their memory is generally fresherat the time closest to an event and their ability to accurately recalldetails of an event would be better at the time closest to the event.

2. Get the witness to commit to the testimony given on direct exami-nation.

3. Although the “Isn’t it true that on direct examination you testifiedthat . . .” phrasing may alert the witness to the potential problemwith that area of their testimony because of the confrontationalnature of the question, and some courts believe that such a questionis objectionable as argumentative, that is the customary question forthe laying of that portion of the foundation.

4. Establish that the witness made an earlier statement at a certain timeand place.

5. Establish the identity of the persons present at that time and place orthe identity of the writing that is the contradictory evidence.

6. Establish that the prior statement was made.7. It is probably better not to ask the witness if his memory was better

at the time of the inconsistent statement because that gives the wit-ness a chance to explain why he made that statement, even thoughsuch an answer would be nonresponsive and should be stricken.Your initial foundation as to better recollection at the earlier time isall you need for the argument of the concept and the impeachment.

If your witness has been impeached, rehabilitation is often best accom-plished by establishing a prior consistent statement. This is done as follows:

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8. Generally speaking, the prior consistent statement must be prior tothe original trial testimony.

9. When the statement was made.10. Where the statement was made.11. To whom the statement was made and who was present at the time12. The content of the statement.13. If possible, although not required as part of the foundation, that at

the time the prior consistent statement was made there was no rea-son or motive to fabricate.

Other Concepts: Habit

Habit evidence may be used as circumstantial proof of conduct.

1. The witness is familiar with the person or business and has been fora substantial period of time.

2. The habit has been observed by the witness.3. The witness has observed the person or business act in accordance

with that habit on numerous occasions.

Best Evidence

At best, this is a greatly misunderstood concept and a misnomer. There isvirtually no rule that any longer requires that the best evidence be produced,only that admissible evidence be produced. The rule is limited to writings. Itwould be best called the “original writing rule” and it really only applies toattempts to determine what the writing contains, virtually nothing else.

Rule 1002 applies only when the proponent attempts to prove “the con-tents of the writing.” The three instances when the rule comes into play are:

1. The material facts of consequence automatically place the docu-ment’s contents in issue—perhaps a forged document or signatureor, more usually, the specific terms of a written contract.

2. The witness expressly or implicitly refers to, and relies upon, theactual writing in the testimony.

3. If, as a matter of statute, the writing is the legal proof of the event,such as in a jurisdiction where marriage can only be valid if alicense is issued, signed, and recorded, then technically the onlyproof of a marriage is the official record of the marriage.

If the object involved is a writing, the foundational elements are:

1. The witness recognized the document.2. The witness testifies how he or she knows of the document.3. The witness identifies the signatures on the document.

A Duplicate Original or Copy

1. The witness recognizes the writing and testifies how he or sheknows the writing.

2. The writing is a copy of the original.

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3. The copy was made under circumstances that verify that it is a trueand complete copy of the original.

4. Perhaps chain of custody testimony is required to establish that thecopy has not been altered since made.

Oral Recollection Testimony

If no copy of an original document is available, a witness can testify to thecontent of the original. The foundation is simple:

1. The original document cannot be located after diligent search.2. On a previous occasion the witness read the original document.3. The witness remembers the substance of the original document.4. The content of the original document.

G. General Theory or Principle behind Use of Experts1. The expert used a particular theory to evaluate the facts of the case.2. The theory has been verified.3. The theory is generally accepted by a majority of experts in the field.4. Factual basis for the opinion.5. All work done by the expert.6. All books, records, and documents examined.7. All personal knowledge and how obtained.8. Hearsay material may be relied on.9. The identity of the information.

10. The source of the information.11. The content of the information relied on.12. That it is customary to rely on this kind and source of information

in the work done by this expert.13. Assumed facts, if there are any, what they are and the basis of the

assumption.14. Why that assumption is reasonable under the facts of the particular

case.

Statement of the Opinion Itself

1. That, based upon the foregoing, the witness has formed an opinion.2. That the opinion is to a reasonable certainty.3. What the actual opinion is.

Motions to Strike

Be sure to move to strike all evidence that is not properly offered but camein despite an objection. Testimony that is in the record, even though anobjection is sustained after it is received, remains part of the record unlessyou move to have it stricken.

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TIP Make motions to strike in writing, number each objection separately, use aseparate number for each sentence, or part of a sentence, that is objection-able, or a larger grouping if appropriate, stating the evidentiary ground forthe objection. Use a red-lined copy of the document with a line drawnthrough the objectionable material. Prepare a red-lined version, with theobjectionable material obliterated, for use by the court after the motion isgranted.

Voir Dire Examination

This can be used to determine only if a witness is qualified to testify on asubject, or if a document can be received in evidence. It is not a substitute forcross-examination.

Offers of Proof

When you are stymied by objections, and you think the point is important,be sure to make an offer of proof. You have to ask the court for permission todo so before making the offer of proof.

H. ImpeachmentThis is primarily done on cross-examination, although it is sometimes donethrough a different witness as part of your direct or rebuttal case. Presentingthe evidence through your witness, rather than by way of cross-examination,is usually the better plan unless you have documentary evidence to supportyour cross-examination impeachment attempt or clear, unquestionable testi-monial evidence, from an unbiased witness, to support the cross-examina-tion questions.

There is no specific federal rule that deals with the grounds forimpeachment. The traditional areas for impeachment, to be discussed next,fall within the general impeachment provisions of Rule 607.Rule 607 states: “The credibility of a witness may be attacked by any party,including the party calling the witness.”

Bias, Prejudice, Interest, and Improper Motive

There is no actual objection on the grounds of bias, prejudice, conflict ofinterest, or improper motive. In an attempt to stop this kind of impeach-ment, the objection would be “irrelevant.”

If the impeachment is attempted by extrinsic evidence, then the objec-tions would fall into the following categories:

1. The witness who is being impeached has not yet been called as awitness.

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2. The witness who is being impeached has not yet been confrontedwith the alleged bias, interest, or improper motive by cross-examination.

3. The witness who is being impeached was confronted with thealleged bias, interest, or improper motive but did not deny its exis-tence.

The response to an objection to questions in this area is that you are attempt-ing to establish:

1. The bias of the witness2. The prejudice of the witness3. That the witness has an interest in the outcome of the case4. That the witness has an improper motive for giving the testimony

Often a good way to handle these kinds of issues is in a motion in limine,particularly if there is a jury trial.

Character Evidence

A witness may be impeached by opinion or testimony that the witness has abad reputation for honesty. Once a witness has been impeached by evidenceof a dishonest character, such witness may be rehabilitated by the calling of acharacter witness who will testify as to the witness’s honesty or truthfulnessby way of opinion or reputation evidence. The objection would be, “Objec-tion; question is irrelevant and an improper attempt to impeach because thiswitness has insufficient knowledge of the witness’s character to give anopinion on character.”

The cross-examiner might have avoided the need to attempt to impeachby making the following objections when the testimony was first offered:“Objection; the question calls for conclusion and speculation, lack of founda-tion on the grounds of no personal knowledge, and hearsay.” Rule 608 cov-ers this area.

Opinion and Reputation Evidence of Character

The credibility of a witness may be attacked or supported by evidence in theform of opinion or reputation, but subject to these limitations: (1) The evi-dence may refer only to character for truthfulness or untruthfulness, and (2)evidence of truthful character is admissible only after the character of thewitness for truthfulness has been attacked by opinion or reputation evidenceor otherwise.

Specific Instances of Conduct

Specific instances of the conduct of a witness, for the purpose of attacking orsupporting the witness’s credibility, other than the conviction for a crime asprovided in Rule 609, may not be proved by extrinsic evidence. They may,

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however, at the discretion of the court, if probative of truthfulness or untruth-fulness, be inquired into on cross-examination of the witness (1) concerningthe witness’s character for truthfulness or untruthfulness, or (2) concerningthe character for truthfulness or untruthfulness of another witness as towhich character the witness being cross-examined has testified. The givingof testimony, whether by an accused or by any other witness, does not oper-ate as a waiver of the accused’s or witness’s privilege against self-incrimina-tion when examined with respect to matters which relate only to credibility.

Memory

A witness may be impeached by showing that he or she has an impairedability to remember the events in question or by showing the unlikelihoodthat the witness can actually remember those items about which he or shehas testified. This form of impeachment is often coupled with questionsrelating to bias and prejudice, but that is not always the case.

The objection is, “Irrelevant; this question attempts to impeach byimproper methods.” The reply is, “The question seeks to demonstrate thewitness’s inability to remember the events about which testimony has beengiven.”

There is no specific federal rule that deals with impeachment with regardto faulty memory. The objection would fall within the scope of Rule 607.

Perception

A witness may be impeached by showing an impaired ability to perceive theevents in question. Such impeachment is typically accomplished by showingthe time, place, and circumstances in which the perception occurs, fromwhich the lawyer can argue that the witness is not worthy of belief. Mattersof perception include the ability to see, hear, smell, or feel some particularmatter or item in question.

The objection to questions that attempt to impeach on the concept ofperception would be: “Irrelevant, this is an improper attempt to impeach.”The reply to the objection would be: “The question calls for an answer thatwill show the witness was unable to perceive the events to which the wit-ness offered testimony.”

The cross-examiner might have avoided the need to impeach by raisingfoundation objections when the testimony was initially offered.

Prior Convictions/Civil Case

Rule 609(a)(1) provides, unequivocally, that the admission of evidence ofconvictions for crimes not covered by Rule 609(a)(2), but which carry apotential sentence of death or imprisonment in excess of one year, shall bedetermined in civil cases by Rule 403 consideration of the balance betweenprejudicial effect and probative value. The trial judge now has the discretionto exclude other admissible 609(a)(1) convictions, if the prejudicial effect of

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the conviction substantially outweighs the probative value of the convictionas it bears on the issue of the credibility of the witness.

Rule 609(a)(2) is unequivocal in mandating the admission of prior con-viction evidence for impeachment purposes where the conviction is for acrime of dishonesty or false statement. Dishonest crimes, also knows ascrimes in the nature of crimen falsi, will typically include any theft crimeand exclude any crime of violence. There is no discretion in the trial judge toexclude evidence of 609(a)(2) convictions.

Rule 609(b) provides a general ten-year limit on admission of convictionevidence. The objection is: “Objection; the alleged conviction is neither for acrime which carries at least a one-year prison sentence nor is it a crimeinvolving dishonesty or false statement; the probative value of the allegedconviction on the issue of credibility does not substantially outweigh theprejudice to the witness of admitting evidence of such a conviction.”

Prior Convictions/Criminal Case

The rules about prior convictions are different in criminal cases, but not rele-vant to the discussion in this book, and so they are not dealt with in thischapter.

Prior Inconsistent Statements

The Federal Rules do not require a formal foundation for impeachment by aprior inconsistent statement. Some say that good tactics require that counselshow, by way of foundation, the time, place, and circumstances of the incon-sistent statement for maximum effect.

Some jurisdictions require that foundational showing as part of theimpeachment attempt. Some think it is tactically advisable to give a copy ofthe written inconsistent statement to the witness who is about to beimpeached, claiming that this is especially important when the prior state-ment is inconsistent by omission.

Kolodny disagrees with all of the above, believing that the maximumbenefit comes from surprise in the first instance and using the prior inconsis-tent statement as the basis of questioning to more fully commit the witnessto the present inconsistent statement before making the witness aware of theprior inconsistent statement. Only after tying the witness repeatedly to thepresent inconsistent statement do you surface the prior inconsistent state-ment, being sure not to give the witness a chance to explain the reason forthe prior inconsistent statement.

The objection would be: “Objection; irrelevant, improper attempt toimpeach, the proffered statement is not a prior inconsistent statement.”

Specific Acts of Misconduct

Specific instances of conduct that show, without reference to the subject mat-ter of the pending lawsuit, that a witness is not a truth-teller are admissible

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pursuant to Rule 608(b). The federal rule is consistent with the prevailingrule in the country.

However, in civil cases California Evidence Code Section 787 providesto the contrary, saying that “subject to section 788 [which relates to felonyconvictions], evidence of specific instances of his conduct relevant only as totending to prove a trait of his character is inadmissible to attack or supportthe credibility of a witness.” This rule would not apply in criminal casesbecause California Proposition 8, relating to criminal matters, supersededCalifornia Evidence Code Section 787 in criminal cases only.

Extrinsic evidence of instances of misconduct relating to honesty is notadmissible.The objection is, “Objection; irrelevant; the specific instance ofalleged misconduct does not show lack of honesty or truth-telling ability andis an improper attempt to impeach.”

Another objection is, “Objection; irrelevant; evidence of specific instancesof conduct relating to honesty is inadmissible.”

Refreshing Recollection

Refreshing recollection is completely different from past recollectionrecorded and the attempt to introduce such a document. The steps to refresha witness’ memory are:

1. Establish the witness’s current failure of memory, either complete orpartial.

2. Mark the refreshing document for identification.3. Show the witness the refreshing document and ask the witness to

silently read the refreshing document and tell you when the readingis completed.

4. Ask the witness if memory is refreshed by the reading of said docu-ment with regard to the forgotten fact.

5. Take the refreshing document from the witness.6. Re-ask the question that drew the original failure of memory.

Please note that the writing cannot be introduced into evidence by the partyrefreshing the memory, although that may be done by the other party oncross-examination.

The objection is, “Objection; improper attempt to refresh memory with-out proper foundation [which is the absence of demonstrated or testified tofailure of memory], irrelevant, and hearsay.”

I. Memoranda of Law on Evidence IssuesIt is recommended that you prepare Memoranda of Law on the more diffi-cult, anticipated evidence issues, holding the document until the time it isactually needed at trial. Do not provide a copy of the memoranda to theopposing counsel prior to the issue being raised because you may alertopposing counsel to an issue of which he or she was unaware.

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In the later chapters of this book, I address many evidentiary concepts in detail, including the policy reasons behind the various rules as well as examples of the rules in application. In this chapter, I give an overview of common principles of evidence and discuss the effective use of evidence in a divorce trial.

What Is Evidence?

As lawyers, we use the word evidence every day. But how do we define this ubiquitous word? Evidence is simply any information, whether written, verbal, or physical, that a trial court may properly consider in a contested proceeding. Com‑monly, we present evidence by the testimony of a witness. Also, we offer exhibits, that is, documents or things. The evidence ultimately admitted in any case comprises the facts that a court can consider in rendering a ruling.

13

The Fundamentals of Evidence 2

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chris

Typewritten Text

The Family Law Trial Evidence Handbook: Rules and Procedures for Effective Advocacy, ABA by Steven N. Peskind

We investigate our cases and undertake discovery to analyze settlement options or to accumulate information for use at trial. While information is often broadly collected throughout the case, not every piece of information can or should be used as evidence. Skilled trial lawyers understand what they are trying to prove and gather the appropriate evidence to achieve their goals. You do not win cases by the volume of evidence presented; you win by the precision and craftsmanship of its presentation. Throwing large amounts of paper at a judge does not guarantee good results any more than haphazardly ignoring valuable information. The lawyer must determine if potential evidence is

(a) admissible—is the information reliable and relevant, and does it meet the substantive rules of admissibility?

(b) persuasive—does the information advance the theme or a particular argument?

(c) cumulative—does the court already have the information through other evidence admitted in the case?

Lawyers must start by determining whether the potential evi‑dence is admissible under the applicable rules of evidence of the jurisdiction.

History of the Federal Rules of Evidence

In American jurisprudence, the rules of evidence originated with the common law. Judicial decisions established the rules concerning the admissibility of evidence in civil and criminal trials. During the twentieth century, certain projects were undertaken to codify the law of evidence. The California Evidence Code and the Uniform Rules of Evidence were two such projects that strove to summarize, in one source, all of the appropriate common law rules of evidence.

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The Federal Rules of Evidence originated in 1961. At that time, U.S. Supreme Court Chief Justice Earl Warren appointed a com‑mission of lawyers and scholars to craft proposed rules of evidence for use in federal courts. The rules were an attempt to codify the substantial body of case law that addressed evidentiary issues up until that time. The Supreme Court circulated drafts of the rules in 1969 and 1971. In 1972, the Court approved the Federal Rules of Evidence, effective July 1, 1973. Congress, however, exercising its powers under the Rules Enabling Act,1 refused to authorize the rules until it had the opportunity to review them. The Federal Rules of Evidence became law on January 2, 1975, when the President Ford signed the Act to Establish Rules of Evidence for Certain Courts and Proceedings.2 Effective December 2011, the Federal Rules of Evidence were reconstituted to make them more readable and clear. The substance of the rules was not changed, however.

Each jurisdiction has its own rules of evidence that lawyers must know. However, many jurisdictions have adopted the Fed‑eral Rules of Evidence in whole or in part. Even if they have not adopted the federal rules verbatim, most jurisdictions follow their policies and principles. Also, most law school evidence courses focus on the federal rules. For those reasons, this book primarily references the Federal Rules of Evidence. Each chapter provides an overview of the rules pertinent to family law trials, along with practical examples of the rules in action.

Purpose of the Rules

FRE 102 defines the purpose of the rules generally:

1. Rules Enabling Act, ch. 651, 73 Stat. 1064 (1934) (codified as amended at 28 U.S.C. §§ 331, 2071–2073 (2006)).

2. Act of Jan. 2, 1975, Pub. L. No. 93‑595, § 2 (a)(1)–(2), 88 Stat. 1948 (repealed by Pub. L. No. 100‑702, § 401 (a)–(d), 102 Stat. 4648 (1988)).

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These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Broadly speaking, the purpose of the rules is to provide “uniformity, improvement and simplification,” in trial advocacy and a fair pro‑ceeding.3 Particularly in an area of law as passionate and volatile as family law, the rules of evidence allow the court to maintain the integrity of the legal process itself.

Rules of Admissibility

Potential evidence must satisfy three criteria: Is the evidence relevant? Is the evidence reliable? Does the evidence meet the sub‑stantive requirements set forth in the Federal Rules of Evidence (e.g., hearsay, privilege, etc.)? These three questions need to be answered (hopefully well in advance of the trial!) before the court can properly admit and consider any potential evidence. Some‑times evidence is presented to the court by a stipulation between the parties, including stipulations concerning the authenticity of exhibits or other undisputed matters. Another consideration is the distinction between the issue of admissibility and the weight of the evidence. Some evidence, while technically admissible, may not carry much weight if its probative value is small. Courts in nonjury trials will often allow admission of evidence but discount its value after hearing the totality of the case.

3. Edward W. Cleary, Preliminary Notes on Reading the Rules of Evidence, 57 Neb. L. Rev. 908, 912 (1978).

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Direct versus Circumstantial Evidence

Evidence can be either direct or circumstantial. Direct evidence is conclusive proof of a proposition. For example, ordinarily a pay stub or a W‑2 form for an employee conclusively proves his or her income from that job. Circumstantial evidence, on the other hand, contributes toward proof of a fact but is insufficient alone to prove it––it is one brick in the wall. For example, the amount of money the business owner deposits into a bank account cir‑cumstantially contributes toward the ultimate determination of the owner’s income.

Relevance

Whether offering direct or circumstantial evidence, the lawyer must first determine if it is relevant. If something is irrelevant or not germane to any of the issues in the case, the lawyer need not con‑sider the other questions of admissibility. For a piece of evidence to be considered relevant, it must be material and have probative value. Materiality involves the context: Does the proposed evi‑dence address a matter that is at issue? Does it relate to matters that are germane and important for the ultimate determination by the court? If not, it is considered immaterial and inadmissible. Evidence must also be probative of an issue in the case: Does the proposed evidence more probably than not prove a point in controversy? Does the evidence help the judge draw reasonable conclusions? While materiality looks at the evidence in the larger context of the whole case, probative value is ascribed to evidence that is a piece of the puzzle worth considering. For example, the color of the babysitter’s hair would be immaterial to a custody determination. The babysitter’s plans to retire in five years, while


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arguably material, would not likely have any probative value at the present time.4

Reliability of the Evidence

Assuming evidence is relevant, it must also be reliable in order for the court to consider it. According to McCormick5, the value of all testimony depends on the presence of the following core elements:

• Perception• Memory• Narration• Sincerity

Did the witnesses accurately perceive what they are describing? Have they accurately remembered their initial perception? Does their narrative accurately describe the perception? Is the testimony sincere—is it truthful? For testimonial evidence to have any value, it must have these four elements.

Witness Testimony

Witnesses must be qualified as competent before they testify. A competent witness is one who is reliable and can testify based on sensory observations or personal knowledge. An incompetent witness, in contrast, lacks one of the critical components of reli‑ability (perception, memory, the ability to narrate, or sincerity)

4. I address the topic of relevance in Chapters 3–5.5. 2 McCormick on Evidence § 245 at 125 (Kenneth S. Broun, ed., Thomson West

6th ed. 2006).

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necessary for the testimony to be considered. For example, incom‑petent witnesses might include a young child who is incapable of understanding the oath or a witness who is speculating or guessing. Ordinarily, a witness may not give opinions or speculate. This type of testimony is considered unreliable because it is not based on firsthand observations; rather it is based on a witness’s subjective opinions, which lack any meaningful probative value.

Tangible Evidence (Exhibits)

A lawyer who introduces tangible evidence such as documents, photographs, or physical objects must establish that the evidence is authentic. An inauthentic exhibit lacks any probative value. To prove authenticity, the proponent must preliminarily show that the potential evidence is what it claims to be—not a difficult burden, but it requires a rudimentary showing that the exhibit is legitimate. Ordinarily, a lawyer establishes authenticity through a witness testifying to the origin of the exhibit, establishing that the item presented is what it claims to be. Exhibits can also be authenticated by admissions or stipulations. Some exhibits are self‑authenticating under the rules; if an item qualifies as self‑authenticating, it does not need to be authenticated by a witness for admission into evidence.6

Other Considerations of Admissibility: Hearsay

Assuming evidence is both relevant and reliable, it still must satisfy the other substantive requirements of admissibility. An out‑of‑court statement offered to prove the truth of the matter asserted is inadmissible as hearsay without a proper exemption or exception.

6. I discuss the topic of authentication of exhibits in Chapter 9.


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Party admissions (and prior inconsistent statements) are exempt from the hearsay rule; they are not considered hearsay.

In contrast, an exception allows admission of certain kinds of hearsay evidence considered reliable enough for admission. Excep‑tions derive from an implicit balancing test: while some concerns exist about the reliability of the evidence, those concerns are out‑weighed by the harm of entirely disallowing the evidence. Whether an out‑of‑court statement is exempt from the hearsay rule or is admissible as an exception to the rule, the result is the same––the evidence is admitted. Family lawyers frequently rely on these exceptions:

• FRE 803(1)—present sense impression• FRE 803(2)—the excited utterance• FRE 803(3)—then existing mental, emotional, or physical

condition• FRE 803(4)—statement made for the purpose of medical diag‑

nosis or treatment• FRE 803(5)—recorded recollection

An out‑of‑court statement or writing that fits within one of the exceptions is admissible and the court may consider it.7

Privilege

Another substantive matter to consider is the evidentiary privileges, such as the privilege against self‑incrimination or the attorney‑cli‑ent privilege. A privilege protects rights or relationships deemed more important than a party’s right to have the court hear the evi‑dence. For example, the preservation of the right to confidential

7. I explore the topic of hearsay in detail in Chapters 6 and 7.

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communication between lawyers and their clients is deemed sac‑rosanct, and this larger policy trumps an opponent’s right to force disclosure of this information. Privileges generally protect informa‑tion from involuntary disclosure, even if it is otherwise considered relevant and reliable.8

Original Writing Rule

The original writing rule (also known as the best evidence rule) governs admission of a document or recording offered to prove its contents, preferring an original over secondary evidence. This rule was originally formed before the availability of exact reproductions, and today, the federal rules allow duplicates under most circum‑stances. The rule recognizes the importance of a judge considering a document’s exact words when the case hinges on the document’s terms. A witness paraphrasing the document from memory or other secondary sources to prove its contents is considered unreliable when the original is available to examine. A related rule, the rule of completeness, seeks to avoid misleading the judge through the introduction of select parts of a document, without a full disclo‑sure of all of its contents.9

Objections to Evidence

To recap, for admissibility, all evidence, whether testimonial or an exhibit, must be relevant, reliable, and authentic and must not violate any of the substantive rules of evidence. The goal of the proponent is to establish that the evidence meets these requirements.

8. I discuss privileges applicable to family law cases in Chapter 12.9. I discuss these rules in Chapter 10.


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On the other side, the party seeking to keep out information has certain tools at its disposal. The most commonly used method is an objection to the evidence made at trial. When an examiner asks a witness a question or offers an exhibit, the opponent may object based on the lack of relevance or reliability of the evidence or the fact that the evidence violates a substantive rule such as hearsay. Objections also apply to the procedural aspects of a trial. If, for example, a question improperly leads a witness on direct examina‑tion, a timely objection can prevent the witness from being allowed to answer the question as framed.

Besides using objections, a lawyer may challenge the opponent’s evidence by a motion, either pretrial or during the trial. For example, the lawyer can present a pretrial motion in limine to bar a wit‑ness’s testimony if the opponent failed to meet proper disclosure requirements under the discovery rules. Such a motion could also challenge certain anticipated prejudicial testimony as irrelevant before a live witness tells his or her story. Both during and after the trial, a lawyer may use a motion to challenge evidentiary admis‑sions as improper, even after the admissions are made.

If certain evidence needs a foundation prior to its admission—for example, proof of an exhibit’s authenticity—the opponent has a right to challenge the foundation prior to the exhibit’s admission. This procedure, known as voir dire, allows the adverse party to examine the witness out of order, during the proponent’s direct examination, for the purpose of challenging the legitimacy of the offered exhibit.10

10. I address the topic of objections to evidence in Chapter 15.

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Effective Use of Evidence

Trial advocacy is both an art and a science. If effectively knowing and applying the rules of evidence is the science of trial advocacy, persuasively packaging and presenting the evidence is the art. For example, a summary can be vital to an effective presentation of a quantity of raw data. Demonstrative aids can help experts and lay witnesses better explain their testimony. Demonstrative aids are also effective tools during opening statements and closing argu‑ments. Show and tell should be the mantra of all trial lawyers.11

Consider creative ways to use exhibits to tell your story. Some judges are more persuaded by visual rather than auditory stimuli. While a witness’s testimony may communicate the basic facts, the key to effective advocacy is to register with the court’s heart zone, to make the court feel inclined to help your client. The evidence must be memorable and impel the court to act in favor of the cli‑ent. Abraham Lincoln, when he was a lawyer in Springfield, Illinois, would read the newspaper aloud to himself. When asked why, he responded that if he could read the paper and hear it at the same time, he would be more likely to remember it. The same applies here. Pictures help illustrate testimony. Both showing and telling is more memorable.

Physical objects can also be effective. Documents can sometimes be used in lieu of laborious testimony. Showing a bank statement is more compelling that a witness’s testimony concerning the bal‑ance in the account. Knowing how to take all of these tools and use them to effectively support your theme or argument is the art of trial advocacy.

11. I discuss summaries and demonstrative exhibits in Chapter 9.


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Planning

The important decisions concerning the use of evidence should not be made on the day of trial. Instead, decisions should be made weeks and months before the trial. Obviously, not all cases go to trial, but effective case management should contemplate that possibility. From the time of retention, the lawyer should be for‑mulating the various issues, theories, and possible themes of the case. Thoughtful analysis early serves two valuable purposes. First, by understanding the ultimate proofs necessary for the case, the lawyer can focus discovery and investigation. Particularly when parties have limited resources, a focused and precise approach to discovery is welcome.

Second, by analyzing the ultimate proof early, the lawyer can properly prepare for the admission of the key evidence to support the theory and theme. As the court in United States v. Safavian noted, failure to authenticate an exhibit is usually a self‑inflicted injury.12 Few things slow down a trial as much as laborious authen‑tication questions. As always, plan ahead. Many jurisdictions’ rules of discovery allow a party to serve a request for admission of the genuineness of documents. An admission of genuineness authen‑ticates the document or thing, enabling its admission subject to relevance and any other evidentiary rules. A party who unreason‑ably refuses to admit the genuineness of a particular document may be sanctioned.

Use the pretrial conference to discuss the authenticity of your exhibits, as well as admissibility of exhibits in general. Seek stipu‑lations if possible. Assuming there is a stipulation concerning a particular exhibit, prepare a court order confirming the stipulation to avoid a later change of heart or claim of confusion. Even if local rules or custom and practice do not ordinarily require it, ask the

12. United States v. Safavian, 644 F.Supp.2d 1 (2009).

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court to conduct an exhibit conference before the trial to discuss any contested evidentiary issues. This is particularly important with digital evidence, which requires preparation for authentication.

Use of a Proof Chart

A proof chart is a form that gives the lawyer a central forum in which to accumulate potential evidence and anticipate possible evidentiary hurdles. To obtain admission of most evidence, the lawyer must prepare in advance to lay the foundation. The lawyer may need legal authority to support the admission. A proof chart is invaluable in organizing the evidence and preparing for trial. Early groundwork allows time to prepare for anticipated objec‑tions and other obstacles to the admission. A proof chart form is included in the Appendix.


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To obtain admission of a tangible thing, including a writing, photograph, recording, or other physical item of evidence, the proponent must first authenticate the item. A document or thing can be authenticated by witness testimony, judicial notice, a party admission, or pretrial order on the request by a party. Some kinds of documents are self‑authenticating, rendering further authentication unnecessary. Even if authen‑ticated, an exhibit must still satisfy all other rules of evidence to be admissible: the hearsay rule, the original writing rule, and the rules of relevance.

Rules to consider:

Rule 901. Authenticating or Identifying Evidence

(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must

137

Authentication of Writings and Other Tangible Evidence 9

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chris

Typewritten Text

The Family Law Trial Evidence Handbook: Rules and Procedures for Effective Advocacy, ABA by Steven N. Peskin

produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(b) Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:(1) Testimony of a Witness with Knowledge. Testimony that

an item is what it is claimed to be.(2) Nonexpert Opinion about Handwriting. A nonexpert’s

opinion that handwriting is genuine, based on a familiar‑ity with it that was not acquired for the current litigation.

(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinc‑tive characteristics of the item, taken together with all the circumstances.

(5) Opinion about a Voice. An opinion identifying a person’s voice—whether heard firsthand or through mechani‑cal or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

(6) Evidence about a Telephone Conversation. For a tele‑phone conversation, evidence that a call was made to the number assigned at the time to:(A) a particular person, if circumstances, including self‑

identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a busi‑ness and the call related to business reasonably transacted over the telephone.

(7) Evidence about Public Records. Evidence that:(A) a document was recorded or filed in a public office

as authorized by law; or

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(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence about Ancient Documents or Data Compila-tions. For a document or data compilation, evidence that it:(A) is in a condition that creates no suspicion about

its authenticity;(B) was in a place where, if authentic, it would likely

be; and(C) is at least 20 years old when offered.

(9) Evidence about a Process or System. Evidence describ‑ing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a federal statute or a rule prescribed by the Supreme Court.

Rule 1006. Summaries to Prove Content

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Rule 902. Evidence That Is Self-Authenticating

The following items of evidence are self‑authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

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(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:(A) a seal purporting to be that of the United States; any

state, district, commonwealth, territory, or insular pos‑session of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a politi‑cal subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.(2) Domestic Public Documents That Are Not Sealed but Are

Signed and Certified. A document that bears no seal if:(A) it bears the signature of an officer or employee of an

entity named in Rule 902(1)(A); and(B) another public officer who has a seal and official duties

within that same entity certifies under seal—or its equiv‑alent—that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certifi‑cation may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

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(A) order that it be treated as presumptively authentic with‑out final certification; or

(B) allow it to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certi‑fied as correct by:(A) the custodian or another person authorized to make the

certification; or(B) a certificate that complies with Rule 902(1), (2), or (3),

a federal statute, or a rule prescribed by the Supreme Court.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of busi‑ness and indicating origin, ownership, or control.

(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(10) Presumptions under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presump‑tively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly Conducted Activ-ity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)–(C), as shown by a


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certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.

(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The propo‑nent must also meet the notice requirements of Rule 902(11).

Rule 903. Subscribing Witness’s Testimony

A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

Authentication of Real Evidence

Real evidence is an object or item that is itself relevant and pro‑bative, without more. McCormick defines this type of evidence as

“independent substantive sources of evidence because the trier of fact may draw inferences from the objects themselves about some fact of consequence.”1 A paddle used to strike a child or copies of

1. 2 McCormick on Evidence, § 213 at 11 (footnote omitted) (Kenneth S. Braun, ed., Thomson West 6th ed. 2006).

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inappropriate adult magazines left out in the living room when the children were present are examples of real evidence.

One way to authenticate real evidence is to call a witness who can testify that the item is what it purports to be. If the item is unique, the witness would authenticate it by describing its unique or individual properties (e.g., “I recognize the paddle . . . it has my husband’s fraternity insignia on it and his initials carved into it”). If the object is not readily identifiable or more generic look‑ing, additional testimony will be needed to support the admission. Under this circumstance, the proponent must present testimony supporting a chain of custody. Doing so “will entail testimony that traces the chain of custody of the item from the moment it was found to its appearance in the courtroom, with sufficient complete‑ness to render it reasonably probable that the original item has neither been exchanged or altered.”2 To authenticate nondistinct real evidence the lawyer must assure the judge that the evidence has not been tampered with or otherwise exchanged. Additionally, the proponent must offer supporting testimony establishing that the item is substantially the same as it was when the event with which it is associated occurred.

In a family law case, the proponent does not need to prove chain of custody for real evidence with the same rigor that a criminal prosecution requires. Assume Janet offers into evidence a garden tool that she claims Frank threw at her. A break in the chain of custody does not necessarily render the item inadmissible as long as her lawyer can show that the exhibit is probably the item it purports to be.3 Also, a change that does not materially affect an exhibit’s probative value does not invalidate its authenticity.4 If the tool was painted green after the incident, the changed condition

2. 2 McCormick on Evidence, supra note 1, § 213 at 11.3. United States v. Howard‑Arias, 679 F.2d 363 (4th Cir. 1982).4. United States v. Skelley, 501 F.2d 447 (7th Cir. 1974).


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has no bearing on its authenticity. To avoid an argument, however, advise your client to secure potential real evidence and make sure it remains in the same condition it was in at the time of the event to which it relates.

Authenticating Photographs

In a family law case, photographs can be compelling evidence. A picture of a bruise or black eye always tells the story better than raw testimony. Pictures of prospective homes and neighborhoods can tell the story better than mere testimony in a relocation or custody dispute. Wherever possible, a trial lawyer should try to include images to support a claim.

To authenticate a photograph through witness testimony, a witness must testify that the scene depicted in the photograph accurately depicts the scene personally observed. The witness does not need to be the photographer, nor does the witness need to have been present when the photograph was taken. The witness only needs to testify that he or she is familiar with the object or scene in the photograph and that the photo fairly and accurately depicts the object or scene. The witness should also testify to the basis of his or her familiarity with the depicted object or scene.

Digital photographs pose a unique problem: they are easy to manipulate. Digital imagery redefines the notion of what is an original since no per se original exists. FRE 1001(d) acknowledges this problem by providing that “ ‘original’ means any printout—or other output readable by sight—if it accurately reflects the infor‑mation. An ‘original’ of a photograph includes the negative or a print from it.”5Any printout of a digital photograph is considered

5. FRE 1001–1004, which address use of originals, are discussed in detail in Chapter 10.

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an original. Proponents authenticate a digital photograph the same way they would a traditional photograph.

If the photograph is successfully authenticated, it may be condi‑tionally admitted as an exhibit, subject to a later challenge by the opponent. Under the Federal Rules of Evidence, the proponent of the photo need not rule out all possibilities of tampering or inau‑thenticity. The proponent also does not need to conclusively prove that the photo is what it claims to be. Only a threshold showing of authenticity is required.6 If the opposing party claims that the exhibit has been altered, that party would have the burden of proof of that fact. If the opponent later establishes that the exhibit had been altered, the question of its authenticity would go to its weight; the court would disregard it as it has no probative value.

A party seeking to authenticate or to challenge the authenticity of a digital photograph may use metadata from the digital cam‑era to impeach or support authenticity.7 Each photograph has a digital thumbprint, known as metadata, which can be accessed to confirm authenticity of the image. An opponent must plan a chal‑lenge to a digital image before the trial. It is virtually impossible to successfully challenge a photograph on the spot. To challenge a digital image, consider the following:

• Some cell phones and digital cameras have GPS coordinates built into the metadata, which would identify the exact loca‑tion of the camera when the picture was taken.

6. See United States v. Hyles, 479 F.3d 958, 968–69 (8th Cir. 2007); United States v. Tin Yat Chin, 371 F.3d 31, 37–38 (2nd Cir. 2004); State v. Thompson, 777 N.W.2d 617 (N.D. 2010).

7. Joe Kashi, “Authenticating Digital Photographs as Evidence: A Practice Approach Using JPEG Metadata,” Law Practice Today (June 2006) <http://apps.americanbar.org/lpm/lpt/articles/tch06061.shtml#>


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• Metadata identifies the camera the photograph was taken from. If the picture was not from the camera claimed by the propo‑nent, the photograph’s authenticity is suspect.

• Metadata includes the date a photograph was taken. If the actual weather that day does not track with the weather in the photograph, authenticity is suspect.

• Often several pictures of the same scene are taken and one is chosen for admission. Review of the companion pictures may provide insights suggesting manipulation, or they may actually be better representations of the particular image being offered.8

As the proponent of a digital photograph, be prepared to present foundational testimony concerning the date of the photograph, camera used, possession of the camera, and any other salient facts about the image. If challenging authenticity, hire an expert witness to evaluate the authenticity of the image. During pretrial investiga‑tion, use the discovery rules to obtain information for the expert to complete his or her analysis.9 Seek a court order requiring pro‑duction of the original digital device for review of its metadata by the expert.

Here is a sample foundation for offering a photograph (whether digital or traditional) into evidence:

• I want to show you what we have marked as Plaintiff’s Exhibit Number 12 for identification. Do you recognize this item? (Yes)

• What is it? (It is a photograph)• Do you recognize this photograph? (Yes)

8. The author would like to thank Joe Howie from Howie Consulting, www.HowieConsulting.com, an expert on e‑discovery and legal technology, for his valuable contributions to this topic.

9. For a detailed exposition of the science of forensic analysis of digital images, see “Digital Image Authentication from JPEG Headers” by Eric Kee, Micah K. Johnson, and Hany Farid <http://www.cs.dartmouth.edu/farid/publications/tifs11a.pdf>

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• When was the photograph taken? (On June 23, 2012)• If a digital camera was used: What device did you use to take

the picture? (my cell phone camera)• Has anyone other than you had possession of your phone

between the date the picture was taken and today? (No)• What does the photograph depict? (A picture of my arm with

bruises)• Does this photograph accurately depict the bruises on your

arm when the photograph was taken? (Yes)

Authenticating Video and Audio Recordings

A video or voice recording can also help support a particular claim or denial. As always, the proposed exhibit must be material and probative of a particular issue in the case. A video of a parent intently engaged with a child may dispel a claim of disinterest. Or a video of a person engaging in strenuous recreational activity may debunk a claim of being too sick to work.

Traditionally, moving pictures or videotapes required foun‑dational questions about the technology and operation of the recording equipment used to create them. Due to the ubiquity of recording devices, this former standard has been relaxed. Today, a party can authenticate an unscripted video in the same manner as a photograph. A witness who observed the recording must tes‑tify that the video fairly and accurately reflects the scene depicted. The proponent must explain all collateral noises or images on the video as well. The photographer could be the authenticating wit‑ness but does not need to be.

Scripted videos require more foundation. Scripted videos are created specifically for the litigation, to be used as persuasive tools. In addition to the foregoing authentication requirements, the pro‑ponent must also provide information about the production: who decided on the scenes filmed, the normalcy of the routine depicted,


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the general accuracy of the depiction as compared to normal behav‑ior or functioning, and an explanation of the purpose of the scenes depicted. In at least one family law decision, however, a scripted

“day in the life” video made for a contested custody case was found to be irrelevant and inadmissible.10

Federal wiretapping laws prohibit the audio recording of another person without that person’s knowledge or consent.11 Violation of the act exposes the violator to civil and criminal penalties. An impermissible recording is excluded as evidence.12 State laws also govern the recording of others without their knowledge and the use of such recordings in a legal proceeding.13 Admonish your cli‑ents about these rules and their implications.14

But in some instances, a litigant can properly use a recording as evidence. A voice recording left on an answering machine or cell phone is admissible, assuming it is relevant and properly authenti‑cated. These types of recordings are made with the full knowledge of the person leaving the message. Thus, there is no expectation of privacy and the recording is not subject to the protections of the wiretap laws.

Authenticate a recording in the following way: A witness who made or overheard the recording can identify it as an accurate recording of what was said by the speaker. Alternatively, have the recipient of a voicemail message, for example, testify that the recording accurately reflects what he or she heard on the recording,

10. See Willis v. Willis, 234 Ill. App. 3d 156, 599 N.E.2d 179 (court denied use of a “day in the life” video produced as a demonstrative aid to illustrate the nature and extent of a parent’s involvement).

11. 18 U.S.C. § 2510 et. seq.12. Id.13. See, e.g., Illinois Statute 720 ILCS 5/14‑1 et seq.14. See Shana K. Rahavy, The Federal Wiretap Act: the Permissible Scope of Eaves-

dropping in the Family Home, Journal of High Technology Law, 2003. Also see Allan H. Zerman & Cary J. Mogerman, Wiretapping and Divorce: A Survey and Analysis of the Federal and State Laws Relating to Electronic Eavesdropping and Their Application in Matrimonial Cases, 12 J. Am. Acad. Matrim. Law 227, 228 (1994).

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identifying the date and time the recording was received. Have the witness identify the speaker’s voice, the basis of his or her rec‑ognition of the voice, and any other contextual references in the recording. FRE 901(b)(5) allows authentication of a voice based on a witness’s past experience: “An opinion identifying a person’s voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.” No chain of custody of the recording is necessary if the witness can identify the recording in this manner.15

Authentication of Writings

Authentication of a writing depends on how the proponent intends to use it. It is the context and the intended purpose of the writing that determines the procedure for authentication. If the purpose of offering the writing is to show the reaction by the reader, it will be authenticated differently than a writing offered to prove the content of the communication or the identity of the author. In the former example, the person who found the document (or another witness who was present at the time the writing was discovered and read) would testify that it is the same document found and is in an unchanged condition. The author is irrelevant for the pur‑pose it is being offered.

If the purpose of offering the writing is to prove the content of the communication, the lawyer must present testimony iden‑tifying the author. FRE 901(b)(1) provides that a writing can be authenticated by the testimony of a witness with knowledge of its authenticity. Either the author can authenticate the document as

15. 2 McCormick on Evidence, supra note 1, § 216 at 31.


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his or her writing, or another witness with personal knowledge could verify its authenticity.

Authentication by Identification of Handwriting

Rule 901(b)(2) permits authentication of a writing based on a wit‑ness’s recognition of handwriting on the exhibit. Authentication is satisfied by “a nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the cur‑rent litigation.” Any witness familiar with the handwriting on an exhibit, who can state a basis for this knowledge, could qualify to authenticate the writing.

Assume Mark wrote a letter making a variety of admissions about his hidden sources of income. Jane’s lawyer could authen‑ticate the letter by Jane testifying that based on witnessing his handwriting and signature thousands of times during the marriage, she recognized Mark’s handwriting and signature on this particu‑lar exhibit. In general, the authenticating witness must testify how they acquired the knowledge of the handwriting, but the require‑ment is “minimal.”16 In fact, the witness need not conclusively identify the handwriting. The witness must only believe that it is the same. The uncertainty goes to the weight, not the admissibil‑ity of the evidence.17

Authentication of Writings by Other Means

Writings can be authenticated in other ways. The purpose of authen‑tication is to assure the court that the writing is what it purports

16. 2 McCormick on Evidence, supra note 1, § 223 at 60–61 (footnote omitted).17. Id. at 61–62.

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to be. Authorship can be inferred from the surrounding circum‑stances, and circumstantial evidence can be used. FRE 901(b)(4) provides that the court can evaluate “appearance, contents, sub‑stance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

For example, personalized stationery or letterhead ties the writ‑ing to the owner of the stationery, and that connection could serve to authenticate the writing. Evidence of facts known to the writer could also authenticate it. If a letter alludes to a specific incident that the author demonstrably had knowledge of, the letter could be circumstantially authenticated through evidence of the author’s knowledge of the incident. A reply to an earlier communication could be a means of authenticating the previous writing as well.

Authentication of Electronic Communications

The Federal Rules of Evidence do not treat electronic writings differently than nonelectronic writings. There are no special rules for electronic versus pen‑and‑paper writings. Computer‑generated documents, including e‑mails, and web pages, have become omni‑present in a modern family law practice. Authentication of these materials is accomplished the same as any other writing: the pro‑ponent must give the court proof of the source and legitimacy of the digital evidence. Ordinarily the burden of proving authenticity is not high. The proponent only needs to provide some reasonable predicate proof, usually through a witness, confirming that the proposed exhibit is what it purports to be.18

18. Lorraine v. Markel is probably the most influential decision on the topic of electronic evidence, covering the whole spectrum of issues concerning the admission of electronic evidence. All trial lawyers should read that decision as a primer on this topic. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).


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The method of authentication depends on the type of material being offered.

Faxed DocumentsA facsimile is a digital communication. To the extent that it is a writing, authenticate a fax as you would any other writing. In addi‑tion, provide information concerning the transmittal procedures and other information concerning the unique identity of the docu‑ment. Here are some foundational topics to cover:

• Information about the machine it was sent or received on• Information that the machine was in good working order at

the time of the transmittal• When it was faxed or received• The phone numbers that were entered (if the sender is

authenticating)• Recognition of the printed identifying marks on the document• Identification of any machine generated receipts or reports and

how they are generated• Confirmation that the exhibit is in the same condition as the

time it was faxed

Electronic MailAnyone with personal knowledge of an electronic mail message, including the sender or the recipient, can authenticate it. Rule 901(b)(4) permits authentication of a document based on its distinc‑tive characteristics, including its “appearance, contents, substance, internal patterns, or other distinctive characteristics.” The headers on an e‑mail that include the electronic address of the author are typically enough to authenticate it. Also, establishing foundation via an e‑mail thread is an appropriate means of authentication. For

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example, if the e‑mail was a reply to someone, the digital conver‑sation could serve as the basis of authentication:19

• Please identify Defendant’s Exhibit 17. (It is a copy of an e‑mail I sent to Angela)

• When did you send this e‑mail? (July 22, 2012)• What were the circumstances concerning the message? (I was

replying to an e‑mail she sent me earlier that day)• Do you recognize her e‑mail address? (Yes)• What is her e‑mail address? ([email protected])• On the e‑mail header does it reflect where this e‑mail was

sent? (Yes)• Where was it sent? ([email protected])

FRE 901(b)(3) permits authentication by comparison: a court itself can authenticate an e‑mail by comparing it to other e‑mails previ‑ously admitted.20 In that event, the proponent could ask the court to take judicial notice of the earlier admitted e‑mails and the simi‑larities between those e‑mails and the later one. Some courts have permitted authentication of e‑mails based on the fact that the party opponent produced the e‑mails during discovery.21 Production of documents in response to a request for production is inherently an admission of the authenticity of the documents produced.22 A party would be hard pressed to deny that the documents produced were inauthentic. An expert could also authenticate the communica‑

19. United States v. Siddiqui, 235 F.3d 1318, 1322 (11th Cir. 2000).20. See United States v. Safavian, 644 F. Supp. 2d 1 (2009) (where the court authenti‑

cated an e‑mail based on the header).21. Shaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 397 (D. Conn.

2008); John Paul Mitchell Sys. v. Quality King Distribs., Inc., 106 F. Supp. 2d 462, 472 (S.D.N.Y. 2000).

22. This is a good example of why it is vital to inventory all documents received during discovery. Specifically, Bates stamp everything received, and send a letter confirming every‑thing that was provided if a detailed inventory is not provided from the party producing the records.


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tion as well, but in the average family law case sufficient collateral circumstances should make that unnecessary. Use of an expert to authenticate electronic communications is the exception not the rule. Expert involvement is necessary only where a credible claim of fraud is made.

If the sender of the e‑mail is the witness who will authenticate it, here are some foundational topics:

• The electronic address placed on the e‑mail is that of the claimed recipient

• The purpose of the communication (why it was sent)• If applicable, verification that the sender received an earlier

e‑mail and replied to that earlier e‑mail• Verification that the e‑mail was actually sent• Verification that the recipient acknowledged the communica‑

tion to the sender or took action based on it

Here is an example of a sample inquiry:

• What is this document? (It is a copy of an e‑mail I sent to Joe)• Do you know Joe’s e‑mail address? (Yes)• What is it? ([email protected])• To whom is this e‑mail sent? ([email protected])• Why did you send this e‑mail? (I was confirming our plans

later in the evening)• Did you actually send the e‑mail to [email protected]? (Yes)• Did Joe ever acknowledge the e‑mail to you? (Yes)• How? (He called me an hour after I sent the e‑mail to discuss

our plans)

The other common way of authenticating an e‑mail is by offering the testimony of the recipient. The recipient would authenticate it by

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• acknowledging that he or she received the e‑mail;• identifying the electronic address of the sender as being the

address indicated on the e‑mail;• comparing it to earlier e‑mails received by the sender;• identifying any logos or other identifying information on the

e‑mail;• observing whether the e‑mail received was in reply to one sent

earlier by the recipient;• testimony concerning any conversations with the sender con‑

cerning the communication;• testimony concerning any actions taken by the sender consis‑

tent with the communication.

Here is an example of questions for a recipient:

• What is this document? (It is an e‑mail I received from Alice)• What is the e‑mail address of the sender? ([email protected])• Do you recognize any identifying marks on the e‑mail? (Yes; I

recognize the corporate logo where she works and her phone number is on the e‑mail.)

• When did you receive this e‑mail? (Thursday night)• Had you sent her any e‑mails earlier in the day on Thursday?

(Yes; this was a reply to an e‑mail I sent in the afternoon)• Why did you e‑mail Alice in the afternoon? (I was attempting

to set up a time to see the kids)• Did you have a phone call with her after you received this

e‑mail? (Yes)• When? (Ten minutes after I received her e‑mail I called her

and asked her why I couldn’t see the kids Sunday. She told me they were busy. . .)

As a further example, assume that the husband sent to his banker an e‑mail discussing the future of the family business, that the


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market is expanding quickly, and that he expects substantially higher earnings in the next year. Assume the wife wants to offer the e‑mail into evidence to establish the husband’s income as well as the value of the business. A business evaluator, as an expert, can rely on the communication and testify to it, even making it a part of their report.23 But if no expert used the e‑mail, the wife’s lawyer could ask the husband to identify the e‑mail as the one he sent to the banker. Assuming he identifies it as the one he sent, the authen‑tication rule is satisfied. If he refuses to acknowledge the e‑mail as his, the wife could call the banker to testify that he received the e‑mail, that he recognized the husband’s e‑mail address and that the husband was replying to his request for updated projections for the coming year. The wife could also authenticate the e‑mail based on its appearance, recognizing it from other similar looking e‑mails she received from her husband. She could produce other e‑mails she received from the husband and ask the court to com‑pare those e‑mails to authenticate the one at issue.

A party opposing admission of an e‑mail may claim it was altered or forged. In United States v. Safavian, the court held that unsub‑stantiated claims are insufficient to deny admission:

The possibility of alteration does not and cannot be the basis for excluding e‑mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e‑mail communication now is a normal and frequent fact for the majority of this nation’s popu‑lation, and is of particular importance in the professional world. The defendant is free to raise this issue with the jury and put on evidence that e‑mails are capable of being altered before they are passed on. Absent specific evidence showing alteration, however, the

23. See Chapter 13 and the use of experts to get documents before a judge.

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Court will not exclude any embedded emails because of the mere possibility that it can be done.24

All other evidentiary rules apply to e‑mails. Even if an e‑mail is authenticated, the proponent must be prepared to argue relevance and admissibility of out‑of‑court statements of fact as not hearsay or covered under an exception to the hearsay rule. When an e‑mail is between spouses, it may be admissible as a party admission pur‑suant to FRE 801(D)(2) if offered by the adverse party.

Text Messages and Other Instant MessagesThere is no unique formula to offer a text message into evidence. As one court held,

Essentially, appellant would have us create a whole new body of law just to deal with e‑mails or instant messages. The argument is that e‑mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. Unless the purported author is actually witnessed sending the e‑mail, there is always the possi‑bility it is not from whom it claims. As appellant correctly points out, anybody with the right password can gain access to another’s e‑mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written docu‑ments. A signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead stationery can be copied or stolen. We believe that e‑mail messages and similar forms of electronic communication can be properly authenticated within the exist‑ing framework of Pa. R.E. 901 and Pennsylvania case law. . . . We see no justification for constructing unique rules of admissibility

24. See United States v. Safavian, 644 F. Supp. 2d 1 (2009).


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of electronic communications such as instant messages; they are to be evaluated on a case‑by‑case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity. 25

The proponent must only satisfy the minimal requirement of showing that the document is what it claims to be. It is not the proponent’s burden to disprove an unsupported claim of inau‑thenticity. An unsupported argument that there was no way of knowing who actually sent the text is insufficient to keep it out.26

As with e‑mails, courts have allowed text messages to be authen‑ticated by circumstantial evidence. A screen name, context, and other surrounding circumstances can be used to authenticate a text message.27 The Supreme Court of North Dakota addressed this issue at length in State v. Thompson.28 That court reiterated that authenticity is not a demanding burden and not every uncer‑tainty needs to be conclusively addressed prior to admission.29 In Thompson, the state sought to admit a picture of a text from the defendant to the victim in a domestic violence case. The text was authenticated by the victim testifying about the circumstances between the parties on that day, her knowledge of the defendant’s phone number, and the label (“FR: Jen”) on the text message. The court allowed admission of a picture of the text despite the fact that no testimony was presented about who took the picture and that it was what it purported to be. The court also allowed testi‑mony about other texts, even though reproductions of the texts were not produced.

25. In re F.P., 878 A.2d 91, 95–96 (Pa. Super. Ct. 2005).26. State v. Thompson, 777 N.W.2d 617 (N.D. 2010).27. Massimo v. State, 144 S.W.3d 210 (Tex. App. 2004).28. 777 N.W.2d 617.29. Id.

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In People v. Chromik, an Illinois court (relying on People v. Thompson) allowed into evidence a transcript of a text message.30 In Chromik, a high school student claiming her teacher sexually molested her showed her principal lewd text messages from the teacher. The principal typed the messages on his computer, printed them, and the student reviewed them for accuracy. The principal wrote the time and date of the text on the transcript, and the vic‑tim then signed the transcripts. At the trial, the court permitted use of the transcript, despite the fact that the spell check feature on the principal’s computer automatically corrected spelling errors from the original text.

As with e‑mails, the sender or recipient of a text can most easily establish its authenticity. If the sender testifies, the foundational testimony to be considered includes

• the context of the message (why it was sent, its purpose, earlier discussions on a topic of controversy, etc.);

• knowledge that the number it was sent to was that of the recipient;

• identification of a photograph of the actual text that was sent;• the process of taking the photograph (who took the photo,

what camera was used, that it was an accurate reproduction of the actual text, etc.);

• subject to the original writing rules (FRE 1001–1004), reproduction of a transcript of the actual text, including the procedures for making it (transcript was prepared based on the actual text, reviewed by the sender, and verified to be an accurate reflection of the actual text);31

30. People v. Chromik, 408 Ill. App. 3d 1028, 946 N.E.2d 1039 (2011).31. See discussion of the original writing rules (Fed. R. Evid. 1001–1004) in Chapter

9 as a possible obstacle to admissibility.


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• testimony regarding any responsive text received or any verbal acknowledgment by the recipient in relation to the earlier text.

Sample questions to have a sender authenticate a text message might include the following:

• What is this document? (It is a picture of a text message I sent to Ann)

• What number was this text sent to? (555‑123‑4567)• Whose number is that? (Ann’s)• When did you send this text? (April 11th at 4:07 p.m.)• Why did you text her? (I needed to know how much medicine

to give the kids)• Did she reply? (No)• How did you capture the image contained in this exhibit? (My

friend Bob took a picture of my message on his phone and printed it out for me)

• Does the picture accurately reflect how the text looked when you sent it? (Yes)

If the recipient of the text testifies, the authentication testimony might include the following topics:

• Recognition of the number, digital signature or name of the person they received the message from

• Basis of their knowledge of the sender’s number (that they have had text conversations with this person at that particular phone number in the past)

• The context of the text conversation (earlier texts or discus‑sions on the topic that is the subject of the text)

• If a photo of the text is used, the process of taking the photo‑graph (who took the photo, what camera was used, that it was an accurate reproduction of the actual text, etc.)

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• Subject to the original writing rules (FRE 1001–1004), reproduction of a transcript of the actual text, including the procedures for making it (the transcript was prepared based on the actual text, reviewed by the recipient, and verified to be an accurate reflection of the actual text)

Here are some sample questions for a recipient:

• What is this document? (It is a transcript from a text exchange between my husband and me)

• What is a text exchange? (A series of text messages between us; we were arguing)

• When was the exchange? (All during the morning on the first of April)

• What were you arguing about? (He went to a picnic with his girlfriend and the kids)

• Did you ever speak with him about this by phone? (Yes, later that day)

• How did you prepare this transcript? (I typed the various mes‑sages back and forth as they were on my phone)

• Is the typed transcript identical to the actual text messages sent on April 1, 2012? (Yes)

• Did you add or alter any of the texts in your transcript? (No)

Chat Room CommunicationsThe easiest way to authenticate a chat room communication is for the sender to identify himself or herself as the participant in the chat. If the participant is unavailable to do so, however, the propo‑nent of the evidence will need to provide circumstantial evidence to authenticate the communication, which may include

• knowing the screen name of the sender of the communication and the basis for that knowledge;


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• connecting the content of the chat to admissions or other state‑ments made by the sender;

• showing that the chat occurred during a time that the sender was available to engage in the chat (e.g., that the sender was at home during the period and had a working computer);

• the participant discussing the chat with a third party who could testify to the conversation.

If the proponent seeks to offer a transcript of the chat, he or she will need to ask additional foundation questions to authenticate the transcript, confirming that the transcript is an accurate repro‑duction, who prepared it, and when it was prepared.

Websites and Social Media

Websites such as Facebook and MySpace allow members to create an online profile in an individual web page from which they can post pictures, videos, and updates about their life. Articles abound about the impact that Facebook and other social media have had on family law proceedings.32 The potentially lurid information available on Facebook is an ample resource for family lawyers.

The foundational requirements for authenticating a screenshot from Facebook are the same as for a printout from any other website. The proponent of the evidence must offer foundational testimony that the screenshot was actually on the website, that it

32. Leanne Italie, Facebook is Divorce Lawyers’ New Best Friend, NBCNEWS.com, June 28, 2010, <http://www.msnbc.msn.com/id/37986320>; Nadine Brozan, Divorce Lawyers’ New Friend: Social Networks, N.Y. Times, May 15, 2011, at ST17; Stephanie Chen, Divorce Attorneys Catching Cheaters on Facebook, CNN.com, June 1, 2010 <http://www.cnn.com/2010/TECH/social.media/06/01/facebook.divorce.lawyers/index.html>

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accurately depicts what was on the website, and that the content is attributable to the owner.33

Court decisions are mixed concerning authentication of web pages. Several courts have held that the website owner must provide the necessary foundation to authenticate a page from a website.34 Other courts have held that a printout from a website may be authenticated by a visitor to the website.35 The more permissive camp allows authentication testimony from a person who viewed and ultimately captured the website image in a printed screenshot. In order to authenticate that image, the witness must testify that that the depiction “accurately reflects the content of the Web site and the image of the page on the computer at which the [screen‑shot] was made.”36

The more liberal court decisions reflect a common sense approach to this issue. After all, the court can access the website at the bench and authenticate the screenshot by judicial notice. Allowing the viewer of the website to authenticate it also conforms to the long‑standing policy that favors a lower threshold for authentication.37 That being said, the question of authentication is dependent on the reason for which the screenshot is offered and on the nature of the website itself. A screenshot from a recognized corporation, such as a bank or credit card company, should cause less concern than

33. Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534 (D. Md. 2007).34. See, e.g., United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000); Novak v.

Tucows, Inc., No. 06‑CV‑1909, 2007 U.S. Dist. LEXIS 21269, at *5 (E.D.N.Y. March 26, 2007); Costa ex rel Costa v. Keppel Singmarine Dockyard PTE, Ltd., No. CV 01‑11015, 2003 U.S. Dist. LEXIS 16295, at *9 n.74 (C.D. Cal. April 25, 2003).

35. See, e.g., United States v. Standring, No. 1:04cv730, 2006 WL 689116, at *3 (S.D. Ohio March 15, 2006); Moose Creek, Inc. v. Abercrombie & Fitch Co., 331 F. Supp. 2d 1214, 1225 n.4 (C.D. Cal. 2004), aff’d, 114 Fed. Appx. 921 (9th Cir. 2004) (unpublished opinion); Perfect 10, Inc. v. Cybernet Adventures, Inc., 213 F. Supp. 2d 1146, 1153–54 (C.D. Cal. 2002).

36. Toytrackerz LLC v. Koehler, No. 08‑2297‑GLR, 2009 WL 2591329, at 6 (D. Kan. Aug. 21, 2009).

37. United States EEOC v. E.I. DuPont de Nemours & Co., 2004 WL 2347559 (E.D. La. 2004).


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a personal blog post where a nonowner can more easily manipu‑late the content.

Some courts, however, are suspicious of the validity of any web‑site postings:

While some look to the Internet as an innovative vehicle for com‑munication, the Court continues to warily . . . view it largely as one catalyst for rumor, innuendo, and misinformation. . . . Anyone can put anything on the Internet. No web site is monitored for accuracy and nothing contained therein is under oath or even subject to inde‑pendent verification absent underlying documentation. Moreover the Court holds no illusions that hackers can adulterate the content of any web site from any location at any time.38

But, in general, many courts consider information posted on a commercial website reliable. In fact, information obtained from government websites is considered self‑authenticated if the propo‑nent can establish that the information is current and complete.39

In order to authenticate a screenshot from a website, the wit‑ness should provide the following predicate information to lay the foundation for the authenticity of the screenshot:

• Proof that the witness visited the website• When the website was visited• Information reflecting that the website was current, as opposed

to stale sites not kept current (e.g., postings reflecting current information, dates, etc.)

• How the site was accessed (e.g., “Via the Internet Explorer web browser, I did a Google search for the website and followed

38. St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F. Supp. 2d 773, 774–75 (S.D. Tex. 1999).

39. United States EEOC v. E.I. DuPont de Nemours & Co., supra note 37.

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the appropriate links”; or if the web address was known, “I entered the web address into the Internet browser and accessed the website directly”)

• A description of the website accessed: identifying material on the website including names, addresses, logos, phone numbers, and so on

• Recognition of the website based on past visits• Proof that the screenshot was printed from the website• The date and time that the screenshot was captured• Proof that the screenshot in the printout is exactly the same as

what the witness saw on the computer screen• Proof that the printout has not been altered or otherwise

changed from the image on the computer

As noted above, a screenshot from a Facebook page or other social media page is a page within the social media website at large. Peo‑ple may communicate information on their own page, or post to another’s page. Any posting is potentially admissible, assuming it is authenticated, legally obtained, and meets the other substantive rules of evidence (hearsay, relevance, etc.).

To authenticate a screenshot from a social media site, the lawyer must elicit foundation testimony that circumstantially confirms the identity of the person who posted on the site. That testimony should include information about the social media site accessed.40 Here are some sample questions to authenticate a Facebook page:

• Are you familiar with the social media website Facebook? (Yes)

40. See Levar Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011) (“The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and the visage in a photograph on the site in order to reflect that Ms. Barber was its creator.”).


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• How are you familiar with it? (I use it daily)• How long have you been using it? (Five years)• Describe generally what you do with the application. (I keep

up with my friends’ comings and goings)• What is a Facebook friendship? (The website allows you to

follow chosen friends)• How is one created? (You invite someone to be your friend and

if the person accepts, you become Facebook friends)• Is Sally Jones your Facebook friend? (Yes)• What is a Facebook wall? (That is someone’s personal post‑

ing area open to friends for posting messages and interacting)• How do you access someone’s wall? (You click on their profile

on the website)• What type of information is found on a Facebook wall? (Birth‑

days, place of employment, relationship status, where they live, and other personal information)

• Have you ever visited Sally Jones’ Facebook wall? (Many times)• Did you visit her wall recently? (Yes)• On what date? (Last Tuesday)• What did you see on her wall? (I saw that she posted a picture

of herself kissing my husband)• Did you print a copy of what you saw? (Yes)• Here is petitioner’s exhibit 12. Can you identify this document?

(It is a copy of the picture printed from her Facebook page)• Is it an exact copy of what you saw on the screen the day you

visited Sally’s wall? (Yes)• What date did you print it? (Yesterday)• What is the handwriting on this exhibit? (My initials with the

date it was printed)• Have there been any changes to this document since the day

you printed it? (No)

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The witness could also testify to the specific postings to authenti‑cate the exhibit. For example, if Sally references a particular event on her Facebook page, the witness could testify that she saw Sally at that event. Other follow‑up questions might inquire about the witness’s knowledge about personal information that is typically listed on the site, such as birthday, hometown, and school attended. Finally, pictures on the site could be used to authenticate it as well (pictures of Sally in this particular case).

Even if the pictures are authentic, the proponent may be barred from getting Facebook images admitted into evidence if they were procured improperly. Some Facebook users allow anyone on the Internet to view their pages. Others are more private, however, and require a prior friendship before their information can be accessed. Lawyers are precluded under the Rules of Professional Conduct from creating a phony friendship to gain access to some‑one’s wall.41 Also, the source of access to information will be raised in cross‑examination, and any disreputable behavior may end up inadvertently impeaching your own witness.

Maryland’s highest court has strict rules for authenticating social media sites. In Griffin v. State of Maryland, the court of appeals observed, “[A]nyone can create a fictitious account and masquerade under another person’s name or gain access to anoth‑er’s account.”42 The court observed that a printout from a social media site (MySpace in this case), which is available to all, is a dif‑ferent type of communication than e‑mails and instant messages, which are “sent directly from one party to an intended recipient or recipients.”43

The court held “[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator

41. Steven Seidenberg, Seduced: For Lawyers, the Appeal of Social Media Is Obvious. It’s Also Dangerous, A.B.A.J., February 1, 2011.

42. Griffin v. State, 419 Md. 343, 352 (2011).43. Id. at 368 n.13.


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and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication.”44 The Maryland Court of Appeals suggested three ways to properly authenticate this type of evidence: (1) ask the purported creator if he or she created the profile and added the post in question; (2) search the computer of the person who allegedly created the profile, examining its hard drive and internal history to determine if it was that person who originated the profile; or (3) obtain information directly from the social networking website itself that establishes who created and posted the relevant information to the profile. The authentication procedure recommended by the Maryland high court is stringent, particularly where the alleged author denies making the post. But where the evidence is indispensable, authentication by one of these methods is prudent.

The same principles discussed above to authenticate a Facebook screenshot would apply to MySpace, LinkedIn, or Twitter. The purpose of authentication is to provide the court sufficient proof to establish that the document is what it purports to be. Questions should focus on the origination, identification, and purity of the exhibit. Ask enough foundational questions to establish the exhibit is “accurately reflecting the content of the [website] and the image of the page on the computer at which the [screenshot] was made.”45

Computer-Generated Documents

A proponent authenticates documents prepared on a computer, such as word processing documents, like other writings. The per‑son who created the document can authenticate it. FRE 901(b)(9) describes additional proof necessary to authenticate this type of

44. Id. at 357.45. 2 McCormick on Evidence, supra note 1, § 227 at 74.

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document when the authenticating witness is not the creator: “Evi‑dence describing a process or system and showing that it produces an accurate result.” For example, if the wife discovers a letter on the family computer that was written by the husband, she would need to establish its authenticity by testifying to the following facts:

• Where she found the letter (what computer)• Who had access to that computer• Where on the computer was it found (e.g., in the My Docu‑

ments folder on the computer)• The general topic of the writing• Any identifying information in the letter• When she found it• When she printed it• That the printed copy is identical to the copy she found on

the computer• That it is in the same condition as when she printed it• That the document offered is the same one that she printed

off the computer46

A proponent may need to authenticate the accuracy of a spreadsheet prepared with a computer program such as Excel if the accuracy of the computation is questioned. In that event, present testimony concerning

• the hardware used to make the report;• the version of the software used;• the experience of the person using the program;• the process followed for the input of data;

46. See Stafford v. Stafford, 161 Vt. 580, 641 A.2d 348 (1993) (testimony by a wife that she found a list of husband’s extramarital affairs on the family computer was sufficient to authenticate the document).


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• the accuracy of the computations.

Again, it is not necessary to foreclose all possibilities that the evidence may have been tampered with. The possibility of altera‑tions goes toward the weight, not the admissibility of the evidence. Absent specific evidence showing that the document was altered, the court should not exclude it.47

Computerized Business RecordsModern businesses rely on computers for virtually all aspects of their operations. While computerized business records are most easily self‑authenticated by a certification under Rule 902(11) and (12), they may be authenticated through testimony as well. The basic foundation to authenticate computerized business records includes the following:

(a) The business uses a computer.(b) The computer is reliable.(c) The business has developed a procedure for inserting data

into the computer.(d) The procedure has built‑in safeguards to ensure accuracy and

identify errors.(e) The business keeps the computer in a good state of repair.(f) The business had the computer readout certain data.(g) The witness used the proper procedures to obtain the readout.(h) The computer was in good working order at the time the wit‑

ness obtained the readout.(i) The witness recognizes the exhibit as the readout.

47. See United States v. Safavian, 644 F. Supp. 2d 1 (2009).

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(j) If the readout contains strange symbols or terms, the wit‑ness explains the meaning of the symbols or terms for the trier of fact.48

Once they are properly authenticated, business records (computer‑ized or otherwise) are admissible as a hearsay exception pursuant to Rule 803(6).

Demonstrative Aids

A demonstrative aid provides the court with another tool to under‑stand the evidence. These aids can be used to illustrate or help explain a witness’s testimony. They can also be used during open‑ing statements or closing arguments. A family law trial provides numerous opportunities to use a demonstrative aid, including the following:

• Enlarge the page of an expert’s report to highlight the expert’s testimony.

• Enlarge copies of detailed records that require explanation.• Enlarge a clause from an agreement that may be in dispute.• Print a timeline of salient events that can be used to illustrate

the testimony.• In an opening statement, use a chart to illustrate how the evi‑

dence will explain a complicated financial tracing issue.• At closing, use printed pages from the trial transcript or enlarge‑

ments of important exhibits.

48. Edward J. Imwinkelried, Evidentiary Foundations § 4.03(2) at 62 (Matthew Bender & Co., Inc. 7th ed. 2008).


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A demonstrative aid is not ordinarily admissible as substantive evidence (although some jurisdictions allow them as such).49 McCormick highlights the difference between demonstrative aids and ordinary evidence:

[D]emonstrative aids do not have independent probative value for determining the substantive issues in the case. They are relevant, again in theory, only because of the assistance they give to the trier in understanding other real, testimonial and documentary evidence.50

For the purposes of a complete appellate record, identify and mark the exhibit, offering it as a demonstrative (as opposed to a sub‑stantive) exhibit. Often a demonstrative aid is on a large poster board or is shown on a projector. In that event, provide a paper copy for the court record.

To authenticate a demonstrative aid, the proponent must lay a foundation establishing that the “item is a fair and accurate repre‑sentation of relevant testimony or documentary evidence otherwise admitted in the case.”51 Mark and identify the aid as a demonstra‑tive exhibit, and have the witness testify that the demonstrative aid accurately represents something the witness is describing and that it will assist the court in understanding their testimony.

Summaries

A summary is a type of a demonstrative aid, but the foundational requirements differ from those of other types of demonstrative aids. FRE 1006 provides, “The proponent may use a summary,

49. See, e.g., Verizon Directories Corp. v. Yellow Book USA, Inc., 331 F. Supp. 2d 136 (E.D.N.Y. 2004); Joynt v. Barnes, 388 N.E.2d 1298 (Ill. App. Ct. 2nd 1979).

50. 2 McCormick on Evidence, supra note 1, § 214 at 14 (footnotes omitted).51. Id. at 15.

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chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” In the event a party seeks to offer a summary, the offer‑ing party must provide additional testimony to explain how the summary was prepared, and that it accurately reflects the underly‑ing data summarized in the exhibit. If, for example, an accountant were called to provide forensic testimony regarding the number of deposits into the husband’s bank account and he or she produced such a summary, the accountant would testify to how the summary was prepared: the procedures for analyzing the data, the records reviewed and included in the report. Once the summary is admit‑ted, the accountant could use it to testify to his or her conclusions based on the summary of the data.

Unlike a demonstrative aid, a party may offer a summary exhibit as substantive evidence, proof of the information contained therein. Though all of the underlying documents do not have to be offered for admission (although they could be), the documents themselves must be admissible. As one court has held, Rule 1006 is not a “back door vehicle for the introduction of evidence which is otherwise inadmissible.”52 The trial court has discretion whether to admit a summary. A summary may be used when the underlying documents are too voluminous to be conveniently examined in court individu‑ally. The original documents need not be produced in court, but they must be made available to the other party for inspection and copying prior to the trial. Some courts have imposed an affirma‑tive duty to provide the records, regardless of whether a discovery request was made.53 Good practice suggests producing any under‑lying records to the opponent well in advance of the trial in order to avoid a claim of surprise.

52. Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1160 (11th Cir. 2004).53. See, e.g., United States v. Modena, 302 F.3d 626 (6th Cir. 2002).


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Use a summary where records are voluminous and can easily be distilled into a summary format. Argue that the summary allows the court a focused view of the data and that it will help the court understand the information. In seeking to restrict the admission of a summary, argue that the offering may not be complete or may mislead the court if it is packaged in a way to skew the data in the opponent’s favor. Another defense is that the underlying documents were never tendered for examination. Finally, remem‑ber that the rule applies to a summary of voluminous documents and so on. A written summary of all of the husband’s domestic contributions to repairs of the house, for example, is not properly admitted under this rule.

Public Records or Reports

Rule 901(7) provides the procedure to authenticate public records: “Evidence that: (A) a document was recorded or filed in a public office as authorized by law; or (B) a purported public record or statement is from the office where items of this kind are kept.” Authentication of a report from a state or county child support collection agency, used to prove child support payments, would fall under this rule.

The Advisory Committee Comments note that public records under this rule include data stored in computers, and by reason‑able inference, data reflected on websites as well. The exhibit is authenticated simply by a witness testifying to its source (e.g., “I printed it off the federal government website.”). Alternatively it could be authenticated by admission or stipulation at the pretrial stage of the case.54

54. Self‑authentication of public records under Rule 902 is discussed later in this Chapter. Also, see Rule 803(8), discussed in Chapter 7, which allows statements in public

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Ancient Documents

Rule 901(8) assumes the authenticity of documents at least 20 years old. The rule provides that when such a document or data compi‑lation in any form is not suspicious, or is found in a place that it would likely be if it were authentic, this is sufficient to authenticate it. This rule derives from the common law and now applies to digi‑tal information as well. The Advisory Committee Notes address the issue of authentication of older digital data:

Since the importance of appearance diminishes in this situation, the importance of custody or place where found increases corre‑spondingly. This expansion is necessary in view of the widespread use of methods of storing data in forms other than conventional written records.55

In order to authenticate computer data that is more than 20 years old as an ancient document, present evidence of the chain of cus‑tody of the data and proofs related to the condition of the computer (or other place where the data is stored).56

Self-Authentication of Real Evidence

Rule 902 allows certain documents and things to be self‑authen‑ticated. No independent testimony is necessary to authenticate. This is a commonsense rule designed to recognize the authentic‑ity of certain inherently reliable documents and things. The rule provides the following types of documents are self‑authenticated:

records as an exception to the hearsay rule.55. Fed. R. Evid. 901 Advisory Committee’s Notes, 56 F.R.D 183, 332.56. See Rule 803(16), discussed in Chapter 7, which exempts statements in ancient

documents from the hearsay rule.


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(a) Domestic public documents under seal(b) Domestic public documents not under seal(c) Foreign public documents(d) Certified documents of public records(e) Official publications(f) Newspapers and periodicals(g) Trade inscriptions and the like(h) Acknowledged documents(i) Commercial paper and related documents(j) Presumptions under acts of Congress(k) Certified domestic records of regularly conducted activity(l) Certified foreign records of regularly conducted activity

The presumption of authenticity is rebuttable. The opponent of the evidence may challenge its authenticity. The proponent must give prior notice of the intent to rely on this rule, along with prior disclosure of the documents whose admission the proponent will seek. Prior notice gives the opponent an opportunity to challenge the exhibit’s authenticity. That a document is self‑authenticated does not guarantee its admission. An opposing party can still object that the exhibit contains inadmissible hearsay statements or is inadmissible for other reasons, such as relevance.

Rule 902, subsections (11) and (12), allows for self‑authenti‑cation of business records where the appropriate certification is provided from the custodian of the records or other qualified per‑son. The certification is designed to conform to the foundation requirements of the hearsay exception for business records. Prior to the adoption of this rule, the proponent had to call the custo‑dian to physically appear in court and testify to the foundation for the admission of records. Under FRE 902, the custodian’s appear‑ance is waived if he or she provides a certification that the record sought to be admitted

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(a) was made at or near the time of the occurrence of the mat‑ters set forth by, or from information transmitted by, a person with knowledge of those matters;

(b) was kept in the course of the regularly conducted activity; and(c) was made by the regularly conducted activity as a regular

practice.

FRE 902 is a shortcut for the admission of business records that would otherwise require cumbersome and expensive testimony to lay the predicate foundation. This rule needs to be read in conjunc‑tion with FRE 803(6) (hearsay exception for business records). By relying on the certification process, the self‑authenticated records are admissible as a hearsay exception under FRE 803(6).

Necessity of Subscribing Witness

FRE 903 provides that unless the law otherwise requires, a sub‑scribing or attesting witness is not necessary to authenticate a document. At common law, the proponent had to produce an attesting witness to authenticate a sworn statement. Rule 903 abol‑ished the common law doctrine, except where a document must be attested to be valid (e.g., a will in certain states).

Practice Points

• Authenticity is just the starting point: a proponent of evidence needs to overcome relevancy, hearsay, and other rules to obtain admission of any exhibit.

• The easiest way to authenticate any potential exhibit is by a stipulation or use of a request to admit the genuineness of documents. Use these procedures wherever possible.


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The less time spent on evidentiary issues, the shorter the trial. Any procedure that can streamline the presentation of evidence should be considered. Thoughtful analysis of ways to shorten trial time is an ethical duty; we all have an obligation to our clients to be well‑organized case manag‑ers as well as courtroom advocates. The following are some procedures to consider for streamlining trials.

Requests to Admit Facts and Genuineness of Documents

Most jurisdictions have a mechanism to request that a fact be admitted or a document acknowledged as authentic prior to trial. Use this procedure wherever possible to save valuable trial time authenticating exhibits or arguing their admission. Rules of discovery generally sanction unreasonable denial of the genuineness of documents if the requesting party then

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Typewritten Text

The Family Law Trial Evidence Handbook: Rules and Procedures for Effective Advocacy, ABA by Steven N. Peskin

incurs expenses proving authenticity. A request for admission of facts can dispose of multiple routine facts, saving substantial foun‑dational testimony. This is a highly effective procedure for the authentication and admission of evidence.

Pretrial Motion in LimineEither the proponent or the opponent of a disputed piece of evi‑dence can file a pretrial motion seeking a ruling concerning the admissibility or inadmissibility of a particular piece of evidence. This procedure can save valuable trial time. For example, if wit‑nesses disclosed in discovery appear to be cumulative on a given point, a motion in limine may result in an order restricting the number of witnesses or limiting their testimony. Or if certain infor‑mation was not disclosed in discovery on a timely basis, a motion to bar the evidence at trial may be more effective than challenging the evidence when the witness is already on the witness stand. At that point the court may be less inclined to deny admission of the testimony inasmuch as the witness is already there.

The proponent of the evidence could use this procedure as well. If there is questionable evidence, the lawyer may seek to have its admissibility ruled on in advance to save the cost of bringing in witnesses whose testimony may be barred.1 Also, pretrial rulings allow the opportunity for a more detailed written offer of proof, as opposed to having to do it on the fly at the trial. Strongly consider using a pretrial motion to determine anticipated claims of privilege.

StipulationsWhere possible, lawyers should sit down before the trial to try to work out any issues concerning admissibility of each other’s proposed exhibits. By doing this, lawyers can save valuable trial

1. Although in some instances, courts may deem the ruling advisory in nature and deny a party a ruling. Consult your local case law and rules.

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time. Parties can stipulate to authenticity of exhibits, foundations, and the scheduling of witnesses. Parties can offer all exhibits at the beginning of the trial, with admissibility stipulated, also sav‑ing time. Consider a stipulated exhibit binder, given to the judge at the beginning of the case, with copies of all stipulated exhibits. This procedure allows the judge an easy reference during the trial. Also, consider a stipulation only to authenticity that preserves the opponents right to challenge the exhibit on other grounds such as hearsay. Authentication of exhibits takes time, and courts will appreciate any stipulation that will speed things up.

Exhibit ConferencesAn exhibit conference can also be helpful to expedite trials, par‑ticularly when the opposing lawyer is unreasonable. If the court does not ordinarily conduct such a conference, file a motion ask‑ing the court to conduct one, pointing out how much time can be saved if the court deals with contested evidentiary issues prior to the trial. If the court agrees to conduct the conference, ask that both parties be required to exchange all exhibits seven days prior to the conference in order that each can be prepared to discuss them intelligently at the stipulation conference.

Stipulated TrialsWhile not frequently used, a stipulated trial would provide the court a written stipulation of all uncontested facts and copies of any relevant documents, and the lawyers would simply present argu‑ments concerning the desired disposition. This procedure cannot be used where there are issues concerning a witness’s credibility or for issues related to child custody. But for simple financial issues, where the basic facts are uncontested and the parties can reach a stipulation, it can be a convenient time saver.

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Reserved Evidentiary RulingEither by stipulation or by court order, parties could conduct a trial admitting all exhibits and testimony without objection. All disputes concerning admissibility would be reserved until the conclusion of the case. At the conclusion of the case, the court would rule on any contested evidentiary issues raised by way of a motion to strike. By using this procedure, the proofs can be expedited, and objec‑tions that seem meritorious as the evidence comes in may seem less so in hindsight. With an experienced judge as fact finder, this procedure could significantly expedite the proofs.2

Concluding Comments

I started this book with an acknowledgement that many divorcing people prefer ADR systems today. Litigation is painful and expen‑sive, and most people have been exposed to enough horror stories to realize that it should be avoided if possible. But, unfortunately, it is not always possible. As trial lawyers we have responsibilities to advocate for these suffering people in an ethical and civilized manner. Effective use of the rules of evidence is just one part of this equation, but a vital part. We all have a duty to know and apply the rules in an efficient way to ensure that––despite the high emo‑tions of the parties—an enlightened and educated court process can solve their problems without undue hardship.

2. 1 McCormick on Evidence, § 60 at 300 (Kenneth S. Brown, ed., Thomson West, 6th ed. 2006).

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