211 - You Want to Avoid Hearing this in Court: "I Object" ... Understanding the Rules of Evidence

Understanding the reason behind a rule helps you to understand the rule itself and avoid hearing those words . . . "I object." So, in this show, Leh and Todd discuss the rules of evidence. They explain how they developed over time and where you can find them. They also lay out the over-arching purpose of the rules. Tune in to hear the discuss and get better prepared for court.

Leh Meriwether: Welcome everyone. I'm Leh Meriwether, and with me is Todd Orston. We are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. Here you'll learn about divorce, family law, from time to time even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Ready Todd?

Todd Orston: I'm ready.

Leh Meriwether: Oh good, for once.

Todd Orston: Yeah. I object.

Leh Meriwether: Just kidding. Just kidding.

Todd Orston: Yeah, no I am ready. I'm ready, I'm ready. No, I'm excited about today's show. We take certain things for granted, in terms of our knowledge and experience. We go into court. We try cases. We understand the rules, and it's easy, really easy, to lose sight of the fact that the rules, while they're sort of second nature to us, they're not simple. Every rule, there are rules that have 10, 15, 20 or more exceptions, so understanding how to apply the "rules" that are in existence, sometimes it becomes incredibly challenging, especially to people who don't do this for a living.

Leh Meriwether: Yeah, and if you haven't guessed, today we're going to be talking about the Rules of Evidence. We've never done a show about the Rules of Evidence, particularly hearsay. We've brushed on it, or touched on it in the past, but we're going to take a ... Well, I guess for this show, take a deep dive into it. I mean we hope that you never have to try your case. I mean in fact, we just did a show recently with Bill Eddy and his book about how to mediate high conflict divorces.

Typically, those do go to trial, but he's developed techniques to help you settle your case, even if you have a high conflict personality on the other side. We wanted to spend some time to talk about the Rules of Evidence. Many great legal battles, and small legal battles have been won and lost based on a key piece of evidence not being able to be submitted to the judge or jury, and it changed the outcome of the case.

Before we get started, I think it's important we give a caveat to this show. First off, as you said, Todd, the rules can get very complicated, but second, the Rules of Evidence can vary from state to state. We're going to be as general as possible. We're going to be talking about some nuances, but just to give you examples, but every state is going to have its own nuance to a rule of evidence. We'll be talking in general about the federal Rules of Evidence, Georgia's Rules of Evidence.

We may go back and forth between the two, but again, we're trying to give you an overview. The rules are constantly changing and evolving. We're recording this in 2021. A new statute or a new case may come out next year, or next month, after we record this that changes what we say here. Now, in general it won't, but like was it 2014? Was that when it was here in Georgia when we redid our Rules of Evidence, and kind of adopted the federal code? Is that when it was?

Todd Orston: Yeah, I believe so. Yeah, keep going.

Leh Meriwether: It's been a while.

Todd Orston: Exactly.

Leh Meriwether: I mean that was an example of a substantive change in Georgia. Georgia had rules that were somewhat different, and we definitely are not going to go into the differences because that was a long time ago and I kind of ... As lawyers, we all had to make sure we are on top of all the changes. In fact, I've been in court a few times, just a few months after the new Rules of Evidence, and I remember the opposing attorney objecting on the basis of the old rule. The judge goes, "No, we changed that like two months ago."

Todd Orston: I experienced that a few times, right, where it was definitely, it was a learning curve.

Leh Meriwether: It was a learning curve.

Todd Orston: Anyway, but go ahead.

Leh Meriwether: All right, so we're going to start off with why do we have these rules? How did they develop because this is important for you to understand, and why are they so complicated? Then, we're going to get into what are the rules? We're going to focus on hearsay and all the exceptions, so not all. Let me go back. Some of these objections are probably never, most likely, would never ever use in a divorce trial.

I say most likely because as soon as I say you would never use them, somebody's going to email me saying, "Hey, I used that objection one time." I won't say never, but I'm saying most likely you will never use them. We may not even hit some of the objections just because they are so rare. Probably the reason we're giving this background as well is to help you understand why you may ... You now know you're going to trial, and your lawyer's been representing you this whole time. Maybe it's a year, maybe it's two years, maybe it's more unfortunately, and you get this giant bill from your lawyer to prepare for trial, and you're like, "Why did it cost so much? You've been so involved in my case?"

For the most part your lawyer's been involved with an absence of having to comply with the Rules of Evidence, so when it's time for trial, that changes so the lawyer has to look at everything to make sure that they're going to get in the Rules of Evidence. They're going to get in the evidence you need to win your case. That's why we're going to go through the background. We're going to talk about the nuances, and give some examples of how a lawyer wasn't aware of something, and as a result, they lost. A little nuance to one of the rules.

Let's just start with, Todd, why do we have the Rules of Evidence to begin with? Can people just go into court and tell their story?

Todd Orston: Well, without the rules it would be chaos. It would be anarchy. The rules make sense. Once you get into this, meaning obviously if you were involved in your own case, and you're trying to do thing on your own, obviously, first of all I would say, "I'm sorry," but if you have to go through this process, the rules, you will see, makes sense. Everybody has a story, but just because you have a story doesn't mean you just get to tell your story any way that you want.

There are rules. For instance, hearsay you mentioned. You go into court, you can't talk about an out-of-court statement made my someone to prove something that is relevant and is being presented to the judge. You can't just say, "Well, Bob said this, or Mary said that." Now, there are exceptions, but think about why the rule exists. Do you want to walk into court and let's say an allegation is being made against you, and all of a sudden the other part, or another witness says, "Well, I heard the neighbor heard say this about him, or I heard that person say that about the person on the other side."

How do you defend against that because you don't have the person who allegedly made that statement in court where you can cross-examine them and say, "Wait a minute. You're saying I said something or did something. Were you there? Did you observe that?" If the person is not there, how do you even defend yourself, and defend against that statement that could really hurt you in the case?

Leh Meriwether: Sometimes that person comes and says, "I never said that."

Todd Orston: That's right. Exactly, that's right. That's why what you don't want, now what you don't want is to go into court, and think you have this fantastic story to tell, and I've seen this too many times. They walk into court, they have the story, and they're getting warmed up, and all of a sudden their stride, and they're like, "Now, let me tell you the important stuff. My neighbor, Carl, Carl said ..." "Objection, hearsay."

Okay, sir, you can't talk about something that someone out of court said. Is that person going to be a witness? Then, you can call the witness." "All right, well fine." "Adam said ..." "No, no, objection. Hearsay." The entire story, it just crumbles. That entire strategy because you can't even tell your story because it was all based on out-of-court statements, and you don't have those people present to the witnesses and testify in court.

The reason this show, in my mind, is so important is because I have repeatedly, we have repeatedly seen cases fall apart because absolutely important, I mean probably game-changing evidence, gets excluded just because you didn't understand the rule, and you did not present the evidence correctly.

Leh Meriwether: Mm-hmm (affirmative). The rules develop, they develop in two ways. One is by statutes. A statute is something that legislature, like your state legislature, it goes through the process, and then the governor signs the law, and makes the rules, the framework of the Rules of Evidence. What is an exception to hearsay? That sort of gets its start, but that's not the end of the development of the rules. There's United States Rules of Evidence, that's when you're in Federal court, and then there's ...

Federal court does not handle divorces. That's done at a state level, but many states have adopted the federal rules which is why we're going to reference them today. Not just today, we're actually going to go into them in more shows because there's no way we could cover everything we need ... There's no way we could cover everything in one show. There's no way we can actually cover everything in just a few shows because lawyers go to school, and have a whole semester on the Rules of Evidence. When we come back, we're going to continue to explain how the rules develop.

Todd Orston: I just want to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB, so you can always check us out there as well. Better than, I guess, counting sheep I guess, right?

Leh Meriwether: That's right.

Todd Orston: You can turn on the show, and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back everyone. This is Leh and Todd, and we are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com, and if you want to read a transcript of this show, or other shows we've done, you can find them at divorceteamradio.com. Today, we're doing a show that, gosh I don't think we've ever done, and we're focusing strictly on the Rules of Evidence that you're going go encounter in a hearing or a trial.

Before we get into the specific rules, we will be getting into the specific rules, we're giving you some background because I have found that when you better understand the background, then it's easier to understand and apply the rules, and understand why they're so complicated. When we left off, we were talking about it starts with a statutory framework. A statute is issues. For instance, I think in Georgia one of the statutes is 24-8-803, that talks about hearsay exemptions, and the Federal Rules of Evidence it's 801.

You don't have to write these down or memorize them. You just do a Google for the Federal Evidence or Google Georgia Rules of Evidence, Georgia Hearsay Exemptions. You're going to find all this information, but we're going to try to explain things because you can read these rules and not quite understand them. That's why we're doing this show. Okay, so you can start with the statutes. That's what you can find online, but they don't end there.

The statutes are really broad, and so you've got a broad statute, but then also, the statute is confronted by a specific scenario that perhaps a judge or another lawyer hasn't dealt with before, so they say, "Okay judge, I'm objecting to this on this basis."

The other one says, "No judge, you should allow this in for this reason." The judge makes a ruling, and if it's a critical piece of evidence, the lawyer who lost the ruling, if they lost the case, will most likely appeal it, and sometimes the appeal could be based solely on a piece of evidence being excluded or allowed in when it shouldn't have been, and then the appellate courts will look at that situation, and sometimes they reverse the ruling, and when they reverse it, they also explain why they reversed it, and now all of a sudden that is what becomes what's called precedent.

In that scenario, you've got a statute and there's a case out there that says, "In this scenario, this is how you apply the rule to this scenario." That's how the Rules of Evidence develop. It's not just from a statute, but it's also from case law. Todd, can you remember an example of like a US Supreme Court case where there was a dramatic, there was like ... I'm trying to think of the right word. The precedent was really ...

Todd Orston: Game-changing.

Leh Meriwether: ... game-changing when it comes to rules, including certain expert testimony.

Todd Orston: Yeah, absolutely. You just touched on it. The Daubert Case. It's not uncommon in really any area of the law, for expert testimony to be presented, and so the Daubert, the case is the Daubert, but the Daubert base completely changed and established rules relating to expert witness scientific testimony.

Just set the standard for how that's presented, when it can be presented, all of that, and what that was doing is that was basically taking the Rules of Evidence, and to your point, saying, "Okay, here is something we hadn't really thought about, or it's not exactly, specifically dealt with in the rule itself, so here's a case.

We've looked at the facts of the case, and now this is going to be sort of the rule moving forward, meaning the rule as to how the evidentiary rule is applied in this specific situation, ie the use of experts, and expert testimony. Daubert is probably one of the biggest and best examples that's out there.

Leh Meriwether: I think part of the problem was, part of the reason for the appeal, there was a time when an expert witness, once you classify them as an expert, all of a sudden they start giving this testimony, an expert testimony going back to evidentiary rules is given a greater weight. We've talked about this in another show, but it's given greater weight than what's called lay testimony.

What was happening was experts were coming in and saying, "This is how I analyzed it, and this is my expert recommendation, so you had all these ... as far as the scientific reasoning, some of it was very questionable, and so the Supreme Court said, "You know what, there has to be, if the testimony is going to be presented, it has to be based on scientifically valid reasoning that's properly applied to the facts of a case.

The judge can exclude an expert testimony as evidence that because they're like, "Hey, you didn't follow these sort of principles when it comes to your scientific reasoning."

Todd Orston: Yeah, and the process now is before they even get to the testimony, you have to get the court to accept them as that expert. Now going to, in terms of the challenges that some people might have, especially if they're doing this on their own, if you're going to use, and again, an expert can be a psychiatrist or psychologist, it could be a forensic accountant, it could be anyone who's going to take the stand.

Where you want their testimony to be given some extra weight, ie to be looked at as an expert, now you have to figure out how do I get the court to accept, how do I lay that foundation, and establish that this person has the requisite skill, experience, education, training, to be accepted as that expert. If you can't even get over that hurdle, whether the person has the experience or not, it could just be your skill. You don't understand how to get them accepted as an expert, then guess what, that testimony is not coming in.

Leh Meriwether: Right.

Todd Orston: They're not going to be deemed an expert.

Leh Meriwether: I want to be clear here real quick though. I've never seen a Daubert objection made in court. I've never seen it. I think it's probably because there's a certain core group of experts and lawyers use in our area, and there's no reason to go through that because they use scientific valid reasoning in doing their process, that's why the lawyers like to use these experts, because they can feel confident in their conclusions.

We may challenge them from time to time, but because at the end of the day, they do make a judgment call, as far as making a conclusion, but I haven't seen any of that. Don't fret. If you're listening, "Oh my gosh, I've got to figure out this Daubert thing?" No, no, no, don't worry about that. That was just an example of how a case changed how the Rules of Evidence were applied.

We don't want you to panic about that at all. Don't fret about it. We're trying to explain how these rules developed over time, and how you may understand all the statutes and have a copy of it with you in court, and you make an objection and you lose that objection, because there's a case out there that defines something for you. All right, so we just want you to be aware of that. I think if you have a relatively general grasp on the Rules of Evidence, you're going to be okay, but if you have a complicated case, you really need to get a lawyer to help you out. Todd, why are the Rules of Evidence so complicated?

Todd Orston: You know what, I could make jokes, but at the end of the day, when it comes to evidence, and I remember this from my classes in law school where there really wasn't anything funny about my Rules of Evidence class, but no offense to my professors, it's evolution. It's that, again, and I think you touched on this, I know you touched on it, that rules, at their beginning, are more broad, but over the years, and at this point we're talking many years, every fact pattern is a little bit different, and therefore it is not unreasonable to believe that over time, the general application of a rule, the rule may not apply in every single situation.

For instance, the rules of hearsay. Okay, hearsay, out-of-court statements, not allowed. Well, hold on one second. I have a case here where the person made an out-of-court statement and then was killed. Really? Right before being murdered by the person on trial, said, "Oh my God, Sam killed me," but I can't use that dying declaration? Okay. All of a sudden the court goes, "Okay, well that kind of makes sense. We're going to allow for an exception. Over time, there are more, and more, and more of those.

Leh Meriwether: Sometimes those case rules, like the court makes the ruling actually get embodied in a statute. Sometimes these things can come full circle where there's a statute out there, and then basically you create what's called ... You create case law, which is where appellate court makes a law and then that comes full circle and it gets reincorporated back into a statute when it's amended.

Todd Orston: Right. Again, at this point, like you were saying, Rule 803, which sets forth in the federal rules, but the rule 803 that has hearsay exceptions, for example, basically the statute itself is complete with all of the different exceptions that apply, but even those exceptions, remember then you have to start dealing with the fact pattern. What about ...

Leh Meriwether: You know what, when we come back, we're going to talk about those fact patterns.

Todd Orston: Hey everyone, you're listening to our podcast, but you have alternatives. You have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB. If you're enjoying the show, we would love it if you could go rate us on iTunes or wherever you may be listening to it. Give us a five-star rating, and tell us why you like the show.

Leh Meriwether: Welcome back everyone. This is Leh and Todd, your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. If you want to read a transcript of this show or go back and listen to it again, or find other transcripts of other shows, you can find it at divorceteamradio.com.

Today we're talking about the Rules of Evidence, and the funny thing is we haven't gotten to what the rules are yet. We're just talking about sort of why they're there, how they developed over time, because it is important to understand all of this, and I do want to jump in here Todd, because I think there's going to be two different listeners to this show.

You're going to have people representing yourself, themselves, and you're going to have those that are represented by a lawyer, and I think it's important for both of them to listen to this show, and the ones that we're going to follow-up to it with the more specific rules because I think it's important for both of them to listen. Now, how can the show help the pro se litigant?

Todd Orston: If you're going into court, and you're going to do this on your own, I have seen too many times, I've even been involved in cases where the opposing party was pro se, and look, there are rules for a reason. While judges will sometimes make exceptions for a pro se litigant, and allow a little bit more than maybe the rules should allow, the bottom line is, I've seen people's arguments get shut down simply because they don't understand the rules.

They start talking about what other people said out-of-court, and they try to present things in an incorrect way, and judges take the position of look, these rules apply to everyone. If you don't have an attorney, okay that's fine. That's your choice and maybe it's a choice you made because financially you can't afford and the court understands that, but that doesn't make the rules go away.

If you walk into court and try to present a case, I have seen people's arguments literally just fall apart because all of the evidence that they thought they were going to be able to get in, gets excluded because it was all based on evidence that they were trying to present in violation of the rules. That's why if you're pro se, it's so, so important. Listen to this show. Listen to the next show that we're going to do where we really do a deep dive into the rules.

If you go into court, and you think, "Well, I have a story. I'm going to be allowed to tell my story." Maybe not.

Leh Meriwether: Yeah. Like I said, we're going to try to keep it as baseline as simple as possible for you so you don't go, "Oh my gosh. There's no way I can understand all this." You're right. You can't understand all of it. In fact, I've seen lawyers not be on top of all of it. I've seen judges not be on top of all of it, and it's nothing against judges. Judges have to stay on top of so many areas of the law, so many Rules of Evidence it's not even funny. I mean that's why we have appellate courts because sometimes judges get it wrong. Sometimes lawyers get it wrong.

You're not going to understand all of it, but we want you to understand the baseline because once you understand the baseline, you're going to be able to get in, I would say, 90% of the evidence you need to submit in a divorce case. I want to add, before I get to the why people that are represented by lawyers need to listen to this too, I want to make this one comment about how cases are presented, at least here in Georgia.

In Georgia, you can actually have a jury trial. In a jury trial, the Rules of Evidence are really strictly enforced by the court. In front of a judge, there's a little, not a whole lot, but there's a little leniency because the judges can sift the wheat from the chaff, to choose an old quote. They know what's hearsay, and they know what's not hearsay. They disregard. They can do, for the most part, a good job of disregarding evidence that's not really properly in front of them.

That doesn't mean you don't object and lawyers don't object, but I had a trial once. It was three days. There weren't even kids involved. There was all financial. Between the two lawyers, between myself and opposing counsel, there were three objections. I objected twice and the opposing counsel objected once. We knew the judge. We knew that he was going to disregard what I would call BS testimony, stuff that just there's no way like somebody says, "Well, I heard Jim say that Jill said that my wife said ..." The judge is like, "Yeah, I'm not listening to that."

We know the judge's character, he wasn't going to listen to it, so we would just let that slide because ... The funny thing is, the judge's ruling was almost dead on to what I thought it would be because I had actually written to my client at one point. I was like, "Here's what I think the judge's ruling is going to be." Anyways, my point is, by me not objecting, we just kept the case going as quickly as possible, because it could easily have been a five-day trial if we were objecting all the time.

Now, you may not be able to do that in every scenario, but I just want to understand, give that caveat, which is why if you understand the very basic rules you're probably going got be okay because the court can't ... Some judges, not all judges, but some judges can be a little bit more lenient. If the objection's made, they're going to enforce the objection if it's a proper objection. We've seen judges just they know how to process evidence, and both lawyers have confidence in that, and we get going.

Since both lawyers were good lawyers, I'm saying I was a good lawyer, but the opposing counsel, he kept his client in check. If his client would start rambling, he would reel him back in. Let's not go there. No, you can't talk about that stuff. It made the trial so much better, and that way, when I say so much better, all the evidence that we needed to get in front of the judge, because neither of ...

We couldn't settle the case. Despite our hard efforts, our clients had reached their sort of a line that they wouldn't cross, and we both got it, and we said, "All right, here's all the evidence we need to get in front of the judge, and let him decide." That's how it happened. You could go sit in a court room and never hear objection. That's because lawyers know what's going on.

Todd Orston: Yeah, but let me also say this. The flip side is also true. You're right, and I'm not one of those attorneys that likes to jump up and object all the time, but I've been involved in cases where I had no choice. I'm one of those people where I'm going to actually going to listen to what's being said. There are some attorneys who will jump up and object when the testimony is just beginning, and the person is just talking about what their name is, and objections already start to fly.

It's like, "Come on. That's enough. We're going to be here for three months if you object like that. Sometimes I have had to shut parties down, or witnesses down because they're just getting into stuff that I knew was going to be damaging if it came in, and it was just improper.

There are some judges, to your point, that will be more forgiving, and there are some judges who will shut you down before an objection can even be made. They can, on their own, say, "Hold on. Don't talk about what other people are saying. Don't talk about what out-of-court statements you heard, or whatever, and they'll shut you down.

I've seen people get so frustrated, especially we're not talking about my clients but where pro se litigants on the other side, or if I'm in court waiting for my case to be heard, and I've watched people and seen how frustrated they were because they have this story to tell, but they didn't know how to tell it. Literally they get shut down to the point where nothing got heard, and then the ruling goes not in their favor. That's why it is so important.

Leh Meriwether: I'll add this other story here. Going back to like sometimes you just can't ... You've got to object to testimony. There was a case where my client, there was an allegation that he had done something that was abusive towards the minor child of the parties. Now, it wasn't true, but anyways, supposedly the child had made some statement, and there's an exception in Georgia, at least there was. I haven't looked it up in years, but where a statement of a child regarding child abuse is considered an exception to hearsay rule.

The mom started testifying about what the child said. I objected, and the opposing counsel was, "Well judge, the statute says this," and this lawyer had been practicing for 35, 40 years. The judge was like, "Well yeah, the statute is here, Mr. Meriwether. Why can't she testify to this?" I said, "Judge, because here's this case, right here." The judge didn't even know about this case. It was this example of nuance. "Judge, it says that if the child is available to testify, then the hearsay statements can't come in."

"Let me see that case." Of course, I had a copy for opposing counsel. I had a copy for the judge. Sure enough, the judge looked it up, and the lawyer was like, "I want to Shepardize this. They wanted to check to see if the case law was still good. It was still good. Evidence didn't come in. Won the hearing. Got the family violence restraining order thrown out, and later on in a subsequent custody case, it was investigated by the guardian ad litem, and my client was vindicated that he had not done anything improper.

I just want to make that clear to the listeners, but the point is, this was an example of nuance where there was a case, and I was able to block some damning evidence that wasn't true, or could have been, what's the word, exaggerated. There could have been a core statement by the child that was truthful, and the opposing party exaggerated the statement which could have resulted in my client losing the rights to see his child.

That's an example of getting complicated and honestly where a lawyer can help. When we come back, we're going to talk about why, even if you're represented by a lawyer, why it's important for you to understand, at least at a basic level, the Rules of Evidence so that you can make sure that all your evidence that you need gets into court.

Todd Orston: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings, WSB. You can always check us out there as well. Better than like counting sheep, I guess.

Leh Meriwether: That's right.

Todd Orston: You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back everyone. This is Leh and Todd, and we are your co-hosts for the Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at atlantadivorceteam.com, and if you want to read a transcript of this show or go back and listen to it again, you can find it at divorceteamradio.com. Well, Todd, it's amazing ...

Todd Orston: How good I am? I know. Oh, I'm sorry. I thought you were going in a different direction. I'm sorry. See, when I've got to let you finish.

Leh Meriwether: When we came up with this idea of going into the Rules of Evidence, on the surface, it's like, (snoring). It sounds like it could be a boring topic, but it's actually kind of exciting in a way because just going through evidence that gets into court, sometimes these criminal shows especially can get ... This is a quote from someone else, not me, juicy. What gets into court and that sort of thing.

At the end of the day, it's not a laughing matter. We joke to keep it from being a boring law school class, but it's not a joking matter because it can make a tremendous difference in someone's divorce case, custody case, child support case, or murder case. If we're getting into criminal law, it could make a difference between someone going to jail for a murder they didn't commit, or a murderer getting free, going free. It is very serious. We make light just to keep it ...

Todd Orston: Light.

Leh Meriwether: So we, again, don't put you to sleep or something.

Todd Orston: Too late.

Leh Meriwether: All right. Let's keep going with why is it important for someone who's even represented by a lawyer, why should they understand these rules?

Todd Orston: Well, God, I can hit this from a couple of different angles. Number one, I'm one of those people, and I'm not a control freak kind of guy, but I want to know the basics. I want to understand so that my expectations are set correctly as to how things are going to proceed. If I walk into court, or if I were to walk into court, and if this isn't what I did for a living, I'd want to have a basic understanding. "Hey, here's my story. Is my story going to get told?"

I have seen so many people get frustrated who had attorneys, and they walk out, and they're like, "I don't feel like I told my story." Sometimes it's evidentiary issues, sometimes it's just a strategy disagreement that the attorney on the other side just didn't present a certain story, but the bottom line is, it's important because you have your story. It's your story. We've said this so many times in so many shows, don't ever forget that this is your case. It's not your attorney's case.

Therefore, understanding the rules so that you can make sure that your story gets told is so incredibly important. From that angle, you want to make sure that your story is told. The other thing is you want to keep your attorney honest, right? Not honest, but you want to keep them on-point doing what needs to be done.

If you have a basic understanding, you hired the attorney because they're the expert, but just because they know what to do doesn't mean that you should just sort of say, "Hey, I think this is my story," and you wipe your hands and you're like, "All right. I'm done." Get it taken care of because that also leads you to potential problems. Just because you have given all the information necessary for evidence to come in, you also want to make sure that your attorney is doing the things that they need to so that your story can be told.

The last thing you want is to walk into court and you start telling your story, the questions, the right questions, aren't being asked of you, and then all of a sudden your attorneys are like, "All right, no further questions," and you're sitting there in your mind going, "More questions. Ask me some more questions please. My story is not told yet."

Not only understanding how things are going to come in so that you can think about what you need to provide to your attorney, but also so that you understand, as you're listening to your attorney do things, is the right foundation being laid and basically is the stage being set for your story to be told?

Leh Meriwether: Here's a specific example of how things can go awry. Let's say that your next door neighbor, Jimmy said that he heard your wife say that she was planning on faking documents in order to make it look like she needed more alimony. You tell your lawyer that, "Hey look, my wife faked all this stuff, and I've got proof, or she said she was going to fake all this stuff, so the lawyer may make an assumption, whether that's right or wrong on the part of the lawyer, we're all people.

We all can make mistakes. Maybe we're focused on something else, and don't ask the follow-up question of the client. Maybe the lawyer assumes that you meant that you had heard your wife say that, so you get to court, and you get up there and said, "Now, did your wife say something along ... What did your wife say when it came to the document she was going to produce regarding alimony?" You say, "Well, she said to Jimmy that ..."

Of course the other side's going to go, "Objection, that's hearsay." Now, all of a sudden you can't get that piece of evidence, that statement, in, but if you understand the Rules of Evidence, you would know that you've got to subpoena Jimmy to come to court to testify about what your wife said about faking documents, or manufacturing evidence. That's a specific example of how understanding the Rules of Evidence, man make sure you communicate properly to your lawyer.

Most of the time lawyer's going to hopefully have a lot of follow-up questions with you. Again, this goes back to the point why preparing for trial can be so expensive, because the lawyer has to ask all these follow-up questions. "How do you know she said this?" "It was my neighbor that heard her say that." "Oh, what's his name?" We need to send him a subpoena, and it's going to cost money to send him a subpoena and we've got to pay a witness fee to make sure he's in court.

If he's a next door neighbor, there shouldn't be any witness fee, but sometimes there's witness fees if the person doesn't live in the county. This is in Georgia. You have to pay them mileage and that sort of thing. There's a lot of steps to go to make sure they're in court to testify to that fact that you want to get in evidence.

Todd Orston: Yeah because I can tell you right now, going into court, and realizing at court in the hearing that you don't have the necessary information to present certain evidence, it's not like you can look at the court and go, "Judge, thanks so much for putting us on the calendar today. Why don't we go ahead and move this because I don't have all my good evidence together, so I'm going to need a little more time to build a better case." That doesn't work. The court is going to say, "We're moving forward today, and you should have had everything ready by today."

You get one shot. That's the other point that I'm going to make before we finish today. When you're thinking of things in terms of I'm going to have an opportunity to go in front of a judge, whether I want it or not, I would love for everyone to settle every issue, but whether you want it or not, if you're going to have to go in front of a judge, you better be prepared. If you don't understand the basics regarding evidence, you're not prepared. That's the whole purpose of this show.

Leh Meriwether: Yeah. Make sure you understand the basics, or at least the next one's the basics. I think this show's more why it's so important you understand the basics. I mean again, we're going through all this, we're talking about this in such detail, and such length too so that when we get to these, the rules, you're going to pay a little bit more attention because sometimes, I mean I've seen it over the years, just people kind of blow it off. "Well, the judge is going to listen to what I have to say." It's like, "No, that's not going to happen."

We touched on, on the last show, or the other show, about just the four general types of evidence, talking about relevance. It has to be relevant too, so that's another core issue. We'll get into the specifics though in the next show. More talking about the exceptions of hearsay, with the assumption that the information you're providing is relevant. If it's not relevant, even if it's not hearsay, or there's an exception, it's not coming in.

It's got to be relevant to the issue before court, so that's the other important thing. At the end of the day, the basic rule, hearsay, an out-of-court statement going to the truth of the matter asserted, that does not come into evidence. That's the simple part. The complicated part is all the exceptions to that simple statement.

Todd Orston: I was just going to say that I've coached mock trial with high school students where they're given a fact pattern, and I can tell you right now, the biggest challenge isn't understanding the facts, it's learning all the Rules of Evidence.

That's the exercise. Going in front of the people who are acting as judges, and these high school students learning all of these rules and learning then how to apply them during the presentation of this fake case, this mock trial. It is not easy, and I'm not talking about, "Well, they're high school students." These are really bright kids. It is incredibly challenging.

Leh Meriwether: I'll say also sitting as the judge, because I've been in those mock trial environments where I was the judge of the hearing, judges have to stay out on top of all the rules to make sure you're making a fair ruling. Sometimes you have to take a moment to, "All right, what's your objection? What's your response?" You're kind of listening for them to go, "Oh, that triggers, oh yeah, no, no. No, you're wrong."

Hey everybody, that about wraps up the show. When we come back next time, we're going to talk about all the, well most of the exceptions to the hearsay rule. Thanks so much for listening.