In our first Tools of War post we set out three general categories of information you need to know to be successful in trust and will litigation. They were:
- Civil procedure—things like motions and demurrers
- Civil discovery—written discovery, depositions, and expert designations
- Rules of evidence—including foundation, hearsay, and relevance.
Civil procedure and civil discovery we have discussed. Now let’s tackle evidence.
The rules of evidence apply in probate Court the same as in any other civil trial. And a majority of judges hearing probate cases will enforce the rules of evidence, although some are more strict than others.
Evidence rules are meant to limit the information that comes before the trier of fact (either Judge or Jury). The Judge or jury is only allowed to consider information that is “accepted” into evidence once it passes through the gauntlet of rules set down in the Evidence Code.
You can’t just walk into Court with a box of documents and a slew of witnesses and expect all that information will be accepted into evidence. The primary purpose of the evidence rules is to ensure the information presented is genuine (nothing made up by a party).
To navigate the rules of evidence you need to know 3 broad concepts: (1) Foundation, (2) Hearsay, and (3) Relevance. If you know these three concepts, then you have most of what you need to understand the rules of evidence.
Foundation, when referring to documents, just means “authentic”—all documents brought into Court must be authentic. You have the burden of proving your documents are authentic before the Court will admit them into evidence. Further, all witnesses must have personal knowledge of the facts on which they will testify, but that’s much easier to determine (either they do or they don’t). So let’s focus on foundation for documents.
Documents can be authenticated by the person who created them. So letters and emails can be authenticated by the person who drafted them. But what about bank records, medical records, and police reports? They have to be authenticated by the “custodian” of records for the institution who created the documents. That means you either have to (1) subpoena the bank (or medical provider or whatever) asking that their custodian of records appear and testify to the authenticity of the documents, or (2) issue a subpoena duces tecum (called a trial subpoena) asking the bank to send the documents directly to the Court in a sealed envelope with a signed declaration from the custodian of records stating the documents are authentic.
Either option takes some advanced planning—subpoenas must be issued at least 20 days before trial (better if it’s 30 days). You should never expect to simply walk into Court with a box full of bank records and have them admitted into evidence, that won’t work.
Remember nothing comes in without foundation. It is the critical first step that should never be overlooked—plan ahead!
A quick sidebar: typically, you prepare an exhibit binder where you compile all the documents you want to use at trial. The Court then marks the exhibits. But exhibits are NOT evidence until the Court admits them into evidence. Don’t make the mistake of thinking your exhibits are evidence, they aren’t until the Court says they are.
Everybody has heard the word “hearsay,” but what does it mean? Hearsay is any (and I mean ANY) out of Court statement asserted as true in Court. Hearsay applies not only to what people say, but to what they write as well. Therefore, all (and I mean ALL) documents are hearsay if they are used as being true because all documents are prepared outside of Court.
Generally, hearsay statements are not allowed in Court, except for the 20 or so exceptions to hearsay. Yes, there are over 20 exceptions to the hearsay rule—it’s the Swiss cheese of rules.
For example, bank records are hearsay because they were created outside of Court and we typically use them to prove the numbers listed on the statements. But they also fall into the business-records exception to hearsay. So they can come into evidence if you follow the rules for the business-records exception to hearsay.
Another exception is anything said or written by the opposing party. We call that party admission.
There’s too many exceptions to list here, but be aware that there are many exceptions to look at when preparing for trial. The best approach is to look at each witness and each document you want admitted into evidence and find the corresponding hearsay exception for each one. If you can’t find an exception, then you won’t be using that witness or document at trial.
Even if you overcome foundation and hearsay, no evidence is admitted that is not directly relevant to the issue at hand. And the Court has discretion to exclude any evidence it determines is irrelevant or unduly prejudicial. Of course, all evidence is somewhat prejudicial, that’s the whole point. But where information is being used just to put the opposing party in a bad light, without having any relevant use at trial, the Court has the choice to keep it out.
So you must be able to articulate to the Court how your particular document or witness is relevant and useful at trial. Don’t take it for granted, plan it out ahead of time. If you can’t figure out the relevance of a particular witness or document, then don’t use that evidence. Besides, going into irrelevant areas is a great way to bore the socks off the judge or jury. Better to be on the mark and keep things interesting.
That’s the basics of evidence. There’s more to it of course, but once you know foundation, hearsay and relevance you are well on your way to getting your evidence admitted at trial…OR blocking the opposing party from admitting their evidence at trial if they fail to follow the rules. You can use your knowledge of evidentiary rules as both shield and sword.