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212 - Knowing The Rules of Evidence so the Judge Rules In Your Favor - Part 1

212 - Knowing The Rules of Evidence so the Judge Rules In Your Favor - Part 1 Image

10/27/2021 3:11 pm

The rules of evidence can be complicated. But, a failure to understand them could result in a loss in Court when you should otherwise win. In this show, Leh and Todd tackle this difficult subject and break it down into bite sized, understandable nuggets. This is part 1 of a 2 part show.

Transcript

Leh Meriwether: Welcome, everyone. I'm Leh Meriwether, and with my 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, and 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.

Well Todd, are you excited about today's show.

Todd Orston: Oh, am I excited? I couldn't even sleep last night. I mean, I have been thinking about this for the last ... I mean, goosebumps. I mean, if you ... I mean the fact that today we are going to spend an entire show talking about the federal rules of evidence hearsay rule. I mean, I'm jittery. I haven't even had coffee and I'm ... Anyway, am I laying it on too thick? Probably.

Leh Meriwether: You sound like a legal nerd right now.

Todd Orston: Which you know I am. Yeah, or maybe just a nerd. But no, today we are going to talk about the rule of hearsay. And basically, it's one of those shows where it's like, okay, is it going to be the most exciting?

Leh Meriwether: Heck yeah, if we're doing it.

Todd Orston: Yeah, right. Yeah, absolutely. We're going to make it exciting.

Leh Meriwether: That's right.

Todd Orston: But is it important? Heck yeah. It really is. Whether you are represented or not, if you're going into court, or potentially could have to go into court, you must understand this rule. Most people have heard it on TV, or in some context where it's like, "Objection, hearsay." All right, fine. But the rule is so much more than that, meaning there are so many layers to it. And if you don't understand hearsay and you are either going through this on your own, pro se, or even if you have an attorney and you might have to go into court, you need to understand the rule because if you don't, then important evidence might not come in. You might not be able to tell your story, or at least parts of your story, because you simply don't understand this very important rule.

Leh Meriwether: And so the last show, we actually ... We talked about why it's so important to understand the rules of evidence, gave you the backstory, talked about how the rules have developed over time, talked about the role of statutes, and case law, and developing the rules of evidence. So if you haven't listened to that show, you definitely want to go back and you can find it anywhere you get your podcasts. You can also find it at DivorceTeamRadio.com. So definitely check out that show.

We are going to take our time going through this because they have ... It's complicated. We're going to try to make it as simple as possible. And it can be overwhelming, but if you just slow down, it won't be. So that's why we're going to take our time going through these rules. We're not going to cover every rule. We're not going to cover every scenario, because I mean, they do whole ... They have, in law school, there's a whole semester. You can take ... There's a whole class on evidence, and rules of evidence and everything. And lawyers go to what's called CLEs, continuing legal educations, and the whole day's about evidence.

And sometimes there's even whole days about specific kinds of evidence. And that's for lawyers, so who have the background of law school and everything. So we're not going to go that deep. But we are going to break down the different exceptions to the hearsay rule, because the first rule is very easy. And that's just that hearsay's not admissible, and hearsay's a statement by the witness, or by the declarant, the person who made the statement, that does not make while testifying in the current hearing or trial. And that evidence, that statement is offered to prove the truth of the matter, asserted in the statement. So the rule is very simple. But then it gets complicated with all the exceptions to that rule. And that's what we're going to go through.

Todd Orston: Yeah. And very quickly I'll also say this. Every state might have nuances. So depending on where you're listening, I will tell you this. If you're going into court, especially if you ... I mean, really, if you are doing this on your own, what we're talking about here today should not be where you stop in terms of your education regarding evidence and hearsay. You should still talk to a local attorney because even if they're not going with you to court, educate yourself. Make sure that you understand the nuances.

There are federal rules of evidence, and we're really going to be using, as a framework, the federal rules of evidence definition of hearsay. But please understand, in different jurisdictions, there may nuances that you need to know about before you walk into a courtroom. So this should not replace that.

Leh Meriwether: Right. And you can do a simple search. I'm pretty sure most states have these rules online. In federal court, it's 801. And most states have actually adopted, for the most part, or many states have adopted for the most part the federal rules of evidence. They're trying to create some consistency. And like in Georgia, the rule is 24-8-803. And the federal rules evidence, it's rule 801, and 803, and there's a series of rules I should say. It's not just one. And series of code sections that cover each one. So we're going to go through that. Wherever you are, you need to double check the rules. Just say rules of evidence in Georgia, Florida, Texas, wherever you may be. And look it up before you go to court.

Now, we don't want you to obsess about this, because you can quickly get lost in the weeds on these things, and not get all your documents together and that sort of thing. If you walk away with one thing, if there's one thing you really need to remember, is that if someone has made a statement, a neighbor has told you they heard your spouse say something very derogatory about you, or something that you think may help you in court, you can't testify about what that neighbor said. That neighbor has to come to court and testify about what they heard. That's probably the most, to me, one of the most important things.

Now, let's start off with what ... It may sound like hearsay, but isn't necessarily hearsay. There's a few items that sort of fall out of the definition of hearsay. You want to start on it, Todd?

Todd Orston: Yeah, so remember, if you are looking at the definition, it's a statement made by a declarant out of court, and that person's not there to testify personally about it. So in other words, if I were to say ... I just want to make sure that we are clear on the true definition. If I were to say, let's say this was court, and I were to say, "Listen, I was talking to my aunt's dog yesterday who said he listened to this show, and Leh is really bad. I mean, it's just embarrassing." Okay.

Leh Meriwether: Well you would immediately know that's a lie.

Todd Orston: It goes to the truth of the matter asserted. But if the dog's not here to testify, it is, by definition, hearsay. But whether it is excluded, or whether there's an exception that would allow that information to come in, that's what we're talking about. So now going to your point and your question about statements that might look like hearsay, just on the most basic ... Yeah, the dog's not here, dog's not testifying. But basically is it hearsay or excludable hearsay?

Then there are statements where, for instance, that are not hearsay. A witness's prior statements that are inconsistent with their present testimony. So if something is being presented that is contradictory. Statements of an out-of-court identification of a person, or statements by a party opponent. What does that mean? If the party is ... Or rather, if the declarant or the statement is made by a person who is a party to the case, a party opponent, then their out-of-court statement can be admissible. So there are exceptions ... Go ahead.

Leh Meriwether: So like an example would be the neighbor heard the ... Or you heard your spouse say, "I'm going to make up evidence in this case." Now, that is an out-of-court statement, but it's a party ... It's the other party. So you're allowed to say what you heard your spouse say. That's not hearsay because it's the opposing party. So admissions and that sort of thing, and the opponent in your case, you can talk about in court what they said.

If there's a witness that comes to court and testifies, "Yeah, I heard Mabel say she was planning to make up evidence." But then you have another witness come to court and say, "I heard that neighbor tell ... My neighbor told me," so that's still an out-of-court statement, "That he was planning on helping Mabel ... No, helping Jim manufacture evidence against Mabel." And so because that was a prior inconsistent statement, or when people change their story in court, you can bring up other statements they may have made out of court to discredit them. Does that make sense?

Todd Orston: Not to me, but absolutely. I lost you on Jim and Mabel.

Leh Meriwether: So the point is if someone makes an inconsistent statement in court, you can bring in an out-of-court statement to highlight that that statement wasn't true. And when we come back, we're going to continue to break down the exceptions to the rule against hearsay.

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 on WSB. So you can always check us out there as well.

Todd Orston: Better than like 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 with are your co-hosts for Divorce Team Radio 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, go back and listen to it again, because you might need to, you can find it at DivorceTeamRadio.com, or wherever you get your podcasts.

All right, so we are talking about the rules of evidence, and we're trying to take a deep dive without making it complicated, which is a challenge. And we're going to do our best job to explain the basics of the exceptions to the hearsay rule. We probably won't get to every one because there are some that won't really apply in your case. But we're going to try to cover the biggest ones and do our best to give a basic example so that when you show up to court, whether it's a temporary hearing, or a final hearing, that you are prepared for court.

Now, we had talked earlier about the hearsay rule and everything. And I just want to highlight an exception that has been created in the statutes to sort of hearsay that I just realize isn't in this list. But it's for temporary hearings in Georgia. Now, other states may have a similar rule, all right. So normally, an affidavit, someone signs an affidavit, and they're swearing under oath in their affidavit. That's not admissible in a final hearing.

And that's because the person's not there for you to cross-examine. So in the concept of fairness, they're not going to allow an affidavit into evidence because the other person has to be given the opportunity to cross-examine that person. In Georgia, there are temporary hearings in divorce cases. And there is an exception carved out to that in temporary hearings because they specifically limit you to one witness in addition to yourself. So you can come testify and bring one witness with you, and if there's any other evidence you want to bring to court in that temporary hearing, you may submit that through affidavits.

Now, there's rules to follow. This is actually in the uniform superior court rules, not in the rules of ... Right? Is it not in the ... Man, I just ...

Todd Orston: Yeah.

Leh Meriwether: Sometimes you just memorize the rules. And sometimes I forget. Wait, was that a statute or is it uniform superior court? I'll just start citing the things. But there are rules in how you have to submit it. You have to submit it at least 24 hours in advance of the hearing so the other person's not surprised. So this is one of those nuances that you talked about earlier, Todd.

Todd Orston: Yeah.

Leh Meriwether: In Georgia, they have this nuance that any temporary hearing, an affidavit is admissible. In a final hearing, it is not.

Todd Orston: Yeah. And understand, when you think about the reason why, there are people ... Temporary hearings are incredibly important. Sometimes they can set the stage for really how the rest of the case is going to go. Custody issues can be dealt with. Support issues can be dealt with. And while precedent doesn't mean everything, I mean, if the court believes something should be done at a temporary, well, at that point, you have to start thinking well if the court felt that way at the temporary, is the court going to feel that way at the final?

So you have to take these temporary hearings very seriously. But knowing that, there are people who'll be like, "Oh, a temporary hearing? All right, I have 37 witnesses." And we have to say to them and go, "Well, hold on one second. First of all, it's against the rules. Secondly, we don't have four days to try this temporary matter. We're going to have several hours maybe." And sometimes not even that. So this is a rule that basically is like the court saying, "I get it. You have a story to tell. You have people that want to talk and want to testify. But I'm not giving you four days to do it. So go ahead and give me these affidavits. I'll review them and then we'll go from there and I'll make some temporary decisions." So that's the reasoning.

Leh Meriwether: There's some courts where there are so many cases in the courthouse, like on the docket, the cases the judge has to deal with, that I've had judges say, "You've got one hour to present all your evidence."

Todd Orston: That's right.

Leh Meriwether: And the other side has one hour. I had one case where I only had 30 minutes to present all the evidence about what bills were going to be paid, how they were going to be paid, who was going to pay them, and where the children were going to live, and a incredibly short amount of time. You want to talk about having every piece of evidence ready for that hearing ahead of time, and every single proposed order ready for the judge to sign? It was a lot of preparation for that hearing to make sure we were prepared to squeeze in every bit of evidence in 30 minutes. So that's the reason. All right, let's go.

Todd Orston: Yeah, let's start squeezing in some of the actual exceptions.

Leh Meriwether: All right, you want to take the first one?

Todd Orston: All right, that's fine. That's fine. So, for instance, if that dog were to listen to the show, and immediately after the show go, "Oh my goodness, Leh was terrible. Just terrible." Then there is an exception called present sense impression. It's a statement describing or explaining an event or condition made while or immediately after the declarant perceived it. And understand the rationale. The rationale is, and this goes with a lot of the rules that we're going to talk about. There is some believability, some truth, meaning we're going to give more weight to a statement if it's made right around the time that the incident or whatever happened.

If there was a car accident, somebody screams out, or something where it's like, "Oh my God, I just saw duh, duh, duh, duh, duh." The thought is that they don't have time to concoct a story, that whatever was said at that moment is probably accurate. And that's why there is this carve out and this exception in hearsay.

Leh Meriwether: And a good example would be like where maybe someone's trying to claim, "Well this really wasn't a big deal." But the witnesses at the time were like, "Oh my gosh. I can't believe so and so did that. That was horrible." And so those statements, those are present sense impressions of some event that happened. And they could be admissible, and you can use them to perhaps lay out the scene and how bad it was, how badly someone acted. And maybe to counter what that same person is saying. "It wasn't that big a deal. Nobody was bothered by it." But you can get up and testify, "Well actually, these four people said these things when they witnessed it." So that's that present sense impression. Now, if they said it three days later, that is not present sense impression. It's too far. From the event.

Todd Orston: That's nonsense.

Leh Meriwether: Yeah. It's nonsense. It's late sense.

Todd Orston: That's late sense.

Leh Meriwether: You're not allowed to have a late sense impression, just a present, meaning present, at that moment, or immediately afterwards. And when we use the word declarant, that's the person who made the statement.

Todd Orston: That's right, the person who declared, made that declaration. So going on to the second one, that's more like the example that I was using with let's say a car accident. So what's number two?

Leh Meriwether: Well number two is excited utterance, a statement relating to a startling event or condition made while the declarant was under the ... So actually that example where, "Oh my gosh," that was more the excited utterance.

Todd Orston: Right.

Leh Meriwether: Sometimes these things can overlap. I was actually looking ahead when I gave my example. But it's, again, the proximate, the thought is the reaction was sincere and the speaker did not have the opportunity to fabricate.

Todd Orston: Right. So if you're in a car accident, or someone is attacked, or someone, whatever the case is, a statement made at that moment, there is a level of believability because again, you said it in the heat of the moment, which means there's a belief that you didn't really have time to concoct a story, to just come up with something and say something that maybe could benefit you in the future. It was natural. It was instinctive. It was you just reacted, which means you didn't have time to think about it beforehand. So excited utterance, that's another exception.

Leh Meriwether: Right. So present sense, like impression of something you saw, and then something you may blurt out, or someone may blurt out. So I mean, you could argue under either of those exceptions. And like you said, Georgia has similar rules to this. And they may explain them slightly different. So here's an example was, "That car just ran a red light." So that's like a present sense impression, they just saw it. All right, next is-

Todd Orston: Number three.

Leh Meriwether: Sorry.

Todd Orston: No, it's all good. It's all good. How about then existing mental, emotional, or physical condition. This we're going to have to bring into the next segment. But in general, it is a statement of the declarant's then existing state of mind, such as motive, intent, or plan, or emotional, sensory, or physical condition, such as your mental feelings, pain, bodily health, but not including a statement of memory or belief to prove the fact remembered or believed, unless it relates to ... I'm even going to sleep.

This is one of those rules, excited utterance, those. It's more simple. But existing mental, emotional, physical condition, okay, this is where the water gets a lot more muddy. It gets a lot more complex in terms of, "Huh. Does it fall into this category? And is this a statement that is going to show a declarant's existing state of mind?" That's really hard motive, intent land.

Leh Meriwether: So an example might be, "I'm going to make you pay for this." Something like that. And they have to say it like that to me ... No, just kidding. No, but something like, "I'm going to make you pay for this." That could be an example of your then existing mental, emotional, physical condition. And that could come into play often with criminal cases too.

Todd Orston: Right. And we're going to get into this when we come back.

Hey, everyone. You're listening 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.

Leh Meriwether: If you're enjoying the show, we would love it if you could go rate us in iTunes, or wherever you may be listening to it. Give us a five-star rating and tell us why you like the show.

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, you can find it at DivorceTeamRadio.com.

All right, today we're talking about the rules of evidence. We had a whole show, the last show we did was about why these are so important, how they developed. And I think it's really important to go back and listen to that show to make sure you get a really good sort of general overview of the rules of evidence, because I think that helps you to understand what we're going through today.

All right, so we're talking about these. And they can get quite complicated. We're doing our best to keep them simple. We don't want you to get overwhelmed by them, because you can quickly get overwhelmed by them. Lawyers, I see lawyers make mistakes on this all the time. And they've been doing this for years. So I've seen judges make mistakes on this. And that's why we have appellate courts, and judges get overturned. And most of the time, judges get it right. But my point being, I don't want you to over ... What is it? What's the word? Obsess about this, and panic because you're listening to it. I just want you to get a good, general idea of these rules so that you make sure you get the right pieces of evidence so you can truly tell your side of the story when you get to court.

All right, so the next one. We just talked about three of them. The next one is a statement made for medical diagnosis or treatment. And that is a statement made for, and is reasonably pertinent to, medical diagnosis or treatment, and describes medical history, past or present symptoms or sensations, their inception, and their general cause. Now, where this often comes in, I've seen it come in when it comes to divorce cases, or family law cases. There's two scenarios.

One is the scenario regarding children. Maybe they've got issues, medical issues, and another parent's denying those medical issues. So you submit the medical records to show that maybe this child is suffering, maybe has autism or something like that, or a developmental delay. So that's when that statement is made for a medical diagnosis and treatment. And so it's admissible.

The other times we see it come in is family violence cases. So maybe someone has ... The other person say, "I didn't hit her." And she said, "Well no, he hit me, but he broke my cheekbone, and here's the medical bill. Here's the medical records where I went to the hospital that night and they wrote that I had suffered a broken cheekbone." So that becomes admissible. That statement, there's no reason to fabricate that story by a medical professional.

Todd Orston: Right. And understand it's not being offered to prove the truth of the matter asserted. So in other words, if you're trying to establish that an injury occurred at the hands of someone, then the medical record, that just is going towards an injury. Here is a medical record by a professional, kept in the ordinary course of that business, that basically shows I suffered an injury. Here's the medical record that shows the nature of the injury, and the extent of the injury. But it's not going to who caused that injury.

So you might have a record where you said something to the doctor. And it's like, "My husband punched me." All right, well that's not going to come in. But the record just about the nature of the injury itself will, because that's a medical record. And all it's doing is saying, "Look, Judge, remember I told you that I had a broken nose, or a whatever. Here it is. Here's the record that shows that I actually did suffer that medical injury."

Leh Meriwether: Although, the statement, if they put that in the record that my husband punched me, that actually is an exception because it was made for ... The information was made for, and reasonably pertinent to the diagnosis and treatment. So they got to know what caused the injury.

Todd Orston: No, I get that. But I also believe that there might be ... Let's put it this way. There's an argument that the record itself, that's one thing. But especially hours after an injury occurred, I think an argument can be made that wait, hold on one second, if you're offering this and the statement comes in that explains, which it's hard to redact, but the bottom line is that that has a whole description of an incident. Usually, in that situation, that person is a party opponent. So someone's going to be there to testify.

But anyway, this is, like I said, and just the fact that we're talking about this shows there's so many nuances here, and arguments that an attorney can make to try and limit what comes in. Sometimes it's not just a black or white issue, it's in or it's out. You might have something where part of it is going to be admissible, but part of it the court says, "No, I don't want to see that part. That's inappropriate and it violates the rule, and therefore it's not going to come in." So anyway, that's, again, where maybe talking to somebody before you walk into court is really going to help you. But let's move on to the next one.

This is one that is used by attorneys, tell me if I'm wrong, Leh, quite a bit. I mean, it's just a commonly used method of dealing with a witness where it's called recorded recollection. And it's a record that is on a matter the witness once knew about, but can't recall well enough to testify fully and accurately. It was being made or adopted by the witness when the matter was fresh in the witness's memory, and C, accurately reflects the witness's knowledge. So when I say it's commonly used, it is not uncommon for a witness to take the stand and during questioning, they will say, "You know what? I can't recall."

And we as attorneys are trained to then look at that witness and go, "Well, would it help ... Do you remember making a statement? Do you remember duh, duh, duh, duh, duh? Would it help if I show you that document? Would it help if i show you that statement? Would that help with you recollecting what that statement was and what the facts are?" And if the court approves of it, then you can show them that. They can review it. And then they can continue with their testimony, hopefully with a better recollection of what happened or what was said.

Leh Meriwether: Right. And the document itself doesn't actually get into evidence.

Todd Orston: That's right.

Leh Meriwether: But they can read from that document and they can talk about it. And usually what happens is people read it, and they go, "Oh yeah, now I remember." So sometimes people, a journal can be used to refresh someone's recollection. So those are ... And if you recorded it ... The point is that you're not ... The point of this is, "Well, I want to get this document in." No, no. This is just merely being used to refresh the witness's memory. Because things maybe ... Well, let's pull back. Sometimes, cases can take years before you get to a final hearing, and a lot can happen in three years or two years. So a lot of times, people's memories aren't perfect, by any stretch of the imagination. So a recorded recollection can help make sure they give a more accurate description of what may have happened three, four years ago.

Todd Orston: That's right.

Leh Meriwether: All right, so I mean, I see, for one example. Now, this is a police report. Police officers use their police report to refresh their recollections all the time because all they do all day is deal with people, and then they write a police report. And they will use that police report to refresh their recollection.

Todd Orston: Now, as a former prosecutor, I will tell you oftentime, our hope is that a police officer has reviewed their records prior to walking into court. But that is a great example. There are writing reports daily, and so to remember a traffic stop that happened six months earlier might be impossible.

Leh Meriwether: Or a family violence event.

Todd Orston: Or a family violence event. But basically, this gives an opportunity to say, "Hey, do you remember writing a report? Yes, you do. And did you put all the facts that you had learned into that report. Yes, and it accurately told the story of what you're here to testify. Yes. Well you don't ... Okay, would it help if I show you that report? Will that help you to remember? Yes." If the court allows it, they get to look at it, and then basically you take it back, and they don't read from it.And then they can say ... Usually what happens is they're like, "Yes, I remember. This is what I did. This is what was said. This is what I wrote."

Leh Meriwether: Right. Now, if they start to ... Again, we're going to the federal rules. If that same police officer says, "Well, here's what happened." But the document that they're referring to, they're saying something contrary to the document that they wrote down, the opposing side can then request to admit that document to say, "Judge, they used it to refresh their recollection, but they said something different than what's written down here. And that's what they wrote down at the time of the event, or within hours of the event." So again, we're maybe getting to complicated.

Todd Orston: No, but it's a good point that very quickly, before we go into the next break, I will say be careful because the minute you ... If there's a document, and it has one good thing and five bad things, it's not like you just get to bring in that one good thing. Once you open the door, the door is open. And you can't then, as they start bringing up those things that hurt your case, you can't object and say, "No, no, no. Hold on one second. I don't want that to come in." Court's going to say, "That door is open, all right? You should have thought about whether you-

Leh Meriwether: You opened.

Todd Orston: Yeah.

Leh Meriwether: You opened that door. It all comes in.

Todd Orston: That's right, that's right.

Leh Meriwether: All right, when we come back, we're going to continue to break down exceptions to the hearsay rule.

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 on WSB. So you can always check us out there as well.

Todd Orston: Better than like 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 go back and listen to it again, you can find it at DivorceTeamRadio.com.

Well today, we're talking about the rules of evidence, in particular, the exceptions to the hearsay rule. And I think we're actually failing, Todd. But we're trying to keep it simple, but I think we're failing. But hey, we're trying our best to keep this simple. It can get complicated. Lawyers and judges disagree about many of these things many times. Although, I will say a good divorce trial is one where the lawyers prepare to make sure everything's right. And you go three days and only have three objections, that's a well-prepared trial.

Which I had one time, and it was a pleasure to try that case. Not that we wanted to try. Both lawyers tried hard not to try. But we wanted to get it done quickly and get everything into evidence and make it ... Minimize the contentiousness, and that's what we did, and had a very favorable outcome.

All right, where are we? Okay, so we are going through the different exceptions to the hearsay rule. Again, please do not panic when you hear this. Just work through it. Listen. If you're in a different jurisdiction, go check, see what we say. Like the Georgia rules almost mirror the federal rules right now. They used to not. But check in your jurisdiction. Look things up. We're trying to give you ... The general rules are very similar, but some states may have some slight exceptions, like the one we gave earlier about temporary hearings.

Okay, next one, records of a regularly conducted activity. Now, this is traditionally called the business records exception. Often people wanted to bring in business records. An example might be someone's employment history at a certain job if there's issue about whether bonuses have or have not been paid out, or that sort of thing, if there's a fight over alimony, child support. You can't just bring in the records from some business. That's not going to be acceptable. You have to make sure certain things have been done, and you have to have what's called the records custodian come to court and testify that all these things are done.

So let's go through what needs to be done. It's an record of an act, event, condition, opinion, or diagnosis if the record was made at or near the time by or from information transmitted by someone with knowledge, the record was kept in the course of regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit, so that doesn't matter, whether it's for profit or not, it could be a non-profit. Making the record was a regular practice of that activity, and all these conditions are shown by the testimony of the custodian or other qualified witness, or by the certification that complies with certain rules.

Now, Georgia's a little bit different. When you come to court, either you need to get both sides to agree that the records custodian's acceptable. The other side can object and require the records custodian to actually get on the stand and testify to the records that they have ... What they're introducing was kept in the ordinary course of business, et cetera, et cetera, and then it gets admitted. But most of the time, lawyers will have them do what's called a records custodian affidavit where they swear under oath to all these things, and then to the affidavit they attach the documents that were kept in the ordinary course of business.

And then it gets in. But if you don't go through those steps, those records of someone's, perhaps maybe they have some big bonuses coming to them, or perhaps they had stock options they're trying to deny and those stock options are written out in their employee file, and they were awarded, but they don't come, they won't get them until after the divorce trial or something like that, and you're trying to go, "Hey, I should be entitled to 50% of those stock options. They're just not getting paid out till two months after the trial, but they've already been earned."

Well, you've got to follow these ... It's not complicated. If you follow these simple steps, a lot of businesses have record custodian affidavits. You can find them online. Make sure you follow these steps once you get this information from the business, and then you're going to get it admitted into trial. Did I miss anything?

Todd Orston: No, other than the fact that I'm an attorney and my head is spinning.

Leh Meriwether: So you're saying failed again, I didn't keep it simple?

Todd Orston: No. It's not a failure. I mean, obviously it's like a C-minus effort, but whatever. It's not a ... No, I'm kidding. I'm kidding. Look, if you take anything away from this show other than maybe you're never going to listen again, if you take anything away from the show, it's complex. And so what we're trying to accomplish here, whether we're doing a good job or not, what we're trying to accomplish is everyone has a story to tell. The problem is there are too many people who walk into court ready to tell a story, but to tell that story, they need evidence.

And if they don't know how to get that evidence in, it doesn't come in. I have seen people walk out of court so frustrated, where I'm sitting there and I'm watching, waiting for my case to be called, and people get shut down on the stand, and they walk out and they're like, "I didn't even get to tell my story." And they get angry. And I've heard people call us, and they're, "Well, the judge didn't let me tell my story."

No. I mean, yes. But no. It's not that the court just unfairly didn't let you tell your story. It's that you didn't know how to tell the story, and therefore you tried to do it in a way that violated evidentiary rules. So the purpose, again, of this show is we're trying to educate and let people know this is very complex. You can spend time and learn about it. But if you don't, don't be surprised, don't be angry, don't whatever if you don't get to tell your story. And that can absolutely impact the success of your case.

Leh Meriwether: All right, next one.

Todd Orston: All right, well, I mean the next one actually is the absence of a record of a regularly conducted activity. So the first one was records of regularly conducted activity, but seven is ... I'm going to go through this quickly because we could do three more shows just on six and seven, on records. But evidence that a matter is not included in a record described in the previous rule. So the evidence is admitted to prove that the matter did not occur or exist.

It's the proving of a negative, or using a negative to make a point. So depending on how you sort of look at it. So where being able to bring someone in to show that, "Hey, here's a record that shows how this business was conducted." Well, using it to prove the negative, to show, "Hey, here's records to show it didn't happen. They're claiming something happened. It clearly didn't happen because there's no record of it." So again, this is, it doesn't come up. I'm not going to lie. I haven't seen it come up very often in family law context.

Leh Meriwether: I've never seen it come up.

Todd Orston: Yeah, yeah.

Leh Meriwether: Because I was looking through this rule and I've read the rule and I'm like, "Man, I've never cited to that rule."

Todd Orston: Yeah, yeah. Because I don't think it comes up very often in the family law context, because we're just dealing with different issues. We're not dealing with like complex corporate, like in other words like contract issues or whatever between whatever with companies and whatever it might be. But it doesn't come up very often in family law, when you're dealing with who gets the house and who gets the bank account. These issues don't come up. So let's go to the next one then.

Leh Meriwether: Just before people get too ... If someone claims something existed but a business regularly kept evidence of those kind of events, or those matters, and the business has no record of that event that they're claiming happened, that's what we're talking about.

Todd Orston: Got it. That's right.

Leh Meriwether: All right, next one.

Todd Orston: All right, so the next one, public records. A record or statement of a public office if A, it sets out the office's activities, and then number two, a matter observed while under a legal duty to report, including but not limited to in a criminal case, a matter observed by law enforcement personnel, or in a civil case against the government in a criminal case, factual findings from a legally authorized investigation, and ... Again, it gets so complex. And the opponent does not show that the source of information or other circumstance indicate a lack of trustworthiness. So these are, again, public records, records that basically have a level of trustworthiness simply because they're kept ... I'm mixing terms here, but in that ordinary course of public work, of [crosstalk 00:44:10]

Leh Meriwether: A good example is a police report.

Todd Orston: That's right. That's right.

Leh Meriwether: So that's a good example.

Todd Orston: So I know we're just about out of time, but I believe we're going to have a second show on this. We're going to finish up these rules. And again, if you are heading into court, don't let your head spin, because I'm telling right now, you can tell your story if you just have some level of basic understanding. This will help you, but talking to an attorney, at least for a consult before your hearing, that's going to be immensely powerful for you.

Leh Meriwether: Yep. Hey, everyone. Thanks so much for listening.