210 - The Four Kinds of Evidence That Will Help You Win Your Trial

• Lay Witness Testimony
• Expert Witness Testimony
• Documentary Evidence
• Photographic evidence and other forms of physical evidence

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 & 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, atlantadivorceteam.com. Well, Todd, welcome back.

Todd Orston: Thank you. Thank you. It was a nice week away. I'm more relaxed, a little bit sunburned, but I'm glad to be back.

Leh Meriwether: Well, you missed probably the best show ever.

Todd Orston: Well, that's why it was the best show ever, right?

Leh Meriwether: Just kidding.

Todd Orston: I knew that was going to be coming, so yeah, Todd, you need to take more vacations.

Leh Meriwether: No, it was a good show. We missed you.

Todd Orston: Yeah. You had Bill on.

Leh Meriwether: I had Bill on. Yep. And bought his new book.

Todd Orston: Yep.

Leh Meriwether: And so as most of... As people have listened to this show for a while now, they know that we do things. We give you information to really help you work through your divorce and hopefully resolve it rather than litigate it. And what we mean by that is, we give you tools that help you develop a settlement agreement, that at least everyone is equally unhappy about, but something that protects you for the future and preserves your relationship with your spouse, or now ex-spouse, for the sake of your children. But there are situations where you don't have a choice. You have to go to court and sometimes, or actually a lot of times, if you read Bill Eddy's books, it's because there's a high conflict personality on the other side.

And his last book was, which was a breath of fresh air, so it's how to mediate cases with high conflict personalities. Because I don't know about you Todd, but those are really hard to settle and they kind of fall apart, but he put together a book that was, I thought, excellent and gave excellent resources in order to actually settle cases with high conflict personalities. If you missed this show, you definitely want to go back and listen to it again. But Todd, before we get started, one of the things I love is praise.

Todd Orston: All right, finally. You're a great person. You're a special flower and... I wish we could have done this offline, but I mean, should I keep going?

Leh Meriwether: That's not the kind of praise I was talking about. No, I don't. That's the wrong word actually. That's what happens when you do this on the fly. No, what I meant was, I love to hear people are getting good... They're able to use the information we share. So we recently got a great review from [Ms. Melly 00:03:06] and she wrote a five-star review. Thank you so much. And here's what she said, "If you're going through a divorce, hit the subscribe button now. I've listened to a numerable hours of podcasts, but this is the first time I've ever written a review." Thank you. Wow. We're her first. Awesome. "As someone in the midst of a very messy divorce, the Divorce Team Radio podcast is one of the most, my most valuable and utilized resources. I've spent more time with these guys than I have with my very own very good, but very expensive attorney." Thank you.

Todd Orston: Wow. Like you said before, I mean, it's not about the praise because that's not what we're doing this for, but just hearing from people, we've said this before, when we've said, "Hey, please send these reviews." We want to get better. We're doing this because, for no reason other than we want to push this information out there, people should have access to this information. And when we hear from people like Ms. Melly, then it tells us we're on the right track. It tells us that people are getting some benefit from the information that we're pushing out there.

Leh Meriwether: Yep. All right. Well, let's time for more information. Are you ready?

Todd Orston: Or, we can do more praise if you want. I mean it.

Leh Meriwether: Let's save more because we actually got a few reviews. Let's save them for future shows.

Todd Orston: Oh, I was talking about me praising you. I mean, if-

Leh Meriwether: Oh, okay. Keep going. That's all right.

Todd Orston: All right. Yeah. Okay. This is going to be a three-hour show and [crosstalk 00:04:39] hours of praising Leh. All right. Let's jump in.

Leh Meriwether: So today we wanted to talk about the flip side. So let's say you haven't been able to settle your case despite your best efforts, or maybe there's an issue... I've actually seen two good parties who didn't hate each other, but were diametrically opposed on a specific issue. And they put it up to the judge. And they both abided by whatever the judge ruled. So I have seen those before and they had a great relationship afterwards. That's more of the exception, but today we're going to talk about the four kinds of evidence that will help you win your trial, that you can submit into court and to what's called the record and the judge and Georgia, the jury, can actually use in order to make a ruling in your case.

Todd Orston: Yeah. And let me tell you why, if you are thinking about going or starting this process rather, or you're in the middle of it, why this is so important because you only have one bite at the apple. So in other words, if you find yourself in a situation where you have to have a hearing or a trial, you can't go in, hope for the best, not be as prepared as you need to be, and if things don't go well, you can't then say, "Judge, do over."

Leh Meriwether: [Mulligan 00:06:08].

Todd Orston: Yeah, Mulligan. Right. There is no do over. And I can't tell you how many times people come to us and they're like, "Hey, I think I need to hire you." "Oh, okay. Talk to me, tell me what's going on." "Well, I had trial yesterday, and the judge really hates me and this is how things played out." And we have to look at them, jokes aside, and say, "There's very little that we can do." We can talk about motion for reconsideration, other things, but once you've gone down that path and you've had the hearing and the trial, everything... You're in a very weak position. So you need to understand the process. If you don't understand the process...

I've heard again and again and again, where judges shut people down because they're not following rules. They're not in terms of rules of evidence and other rules. And literally people will come and they'll be like, "Todd, I wasn't heard, I didn't get to tell my story. I didn't get to..." And oftentimes it's because they don't understand the rules of evidence and how to present their case.

Leh Meriwether: Mm-hmm (affirmative). So we're going to help you with that. We're going to have future shows where we dive deeper into evidence, but this show is more along the lines of describing the kinds of evidence that can be submitted. So the four primary kinds of evidence that could be submitted in a courtroom are lay witness, and we're going to define each one of these and explain them throughout the show, lay witness testimony, expert witness testimony, documentary evidence, and photographic evidence, and other forms of physical evidence, so including video. So those are the four primary kinds of evidence that can be submitted at trial. And we break them out separately because each one has its own set of rules, and in so far as how the evidence gets submitted to the court.

Todd Orston: Yeah. And it all plays together, right? If you're doing it correctly, then there might be a case where you only need latest testimony. You may have a neighbor, a relative, a nanny, a teacher, someone, but rather... I don't want to say often, but in a lot of cases, you're going to have some lay testimony. You're going to have some expert testimony, you're going to... Again, if you don't know the rules, it's not coming in, meaning the evidence is not going to come in. An objection will prevent it from coming in. Or if you don't understand basic issues like relevance or hearsay, then you can be prevented from giving probably what is incredibly important evidence to the court. But guess what? The court's not going to hear it. Because you didn't know the rule, you didn't present it properly. It was, the term is, it was excluded. That evidence is not going to be accepted. And guess what? You're not going to be able to tell your story.

Leh Meriwether: So let's start diving. We'll start with lay witness testimony. We have a little bit of time left and then we'll save the rest for the next segment. But lay witness testimony is basically non-expert testimony. So if you're one of the parties in the case and you're testifying, you are testifying as a lay witness. That's just the term. And as you said, Todd, a teacher or a neighbor, they would be lay witnesses. And what's important is we'll save hearsay, well, describing hearsay. We're going to save that for another show because hearsay gets very complex. There's multiple layers to it and there's no way we can touch on it in just a few minutes. So we're going to save a whole show for hearsay.

But what's important here is that the lay witness gives specific and firsthand knowledge. That's the most important thing. And that essentially means it needs to be relevant, relevant to the action. And the person has to have actual knowledge of what they're talking about. They can't say, "Well, I think he cheated because a friend of mine told me he did." That's not... First off, there's hearsay, but-

Todd Orston: Objection. Hearsay.

Leh Meriwether: Yeah, but they don't have specific firsthand knowledge. So they can't testify to it. When we come back, we'll continue to break down the four kinds of evidence that will help you win a trial.

I just want to let you know that if you ever want 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 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 soft.

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 & Tharp. If you want to hear more about us, you can always check us out online, atlantadivorceteam.com. And if you want to read the 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 four kinds of evidence that will help you win a trial. And if you don't get these pieces of... You may have the best case on the planet, but if you don't get this evidence into court, you probably will lose your case.

Todd Orston: Yup. And listen, Lee, before we move on, I know you said hearsay, we're going to touch on that in a future show. And we could probably do five shows on hearsay alone, but very quickly, because I think it's going to keep coming up in the context of getting evidence in, that basically a hearsay statement is an out-of-court statement that is being presented to the court to prove that the truth of the matter that's being asserted. All right. That's some of the legal terminology, but basically, you can't have someone, to your point before, come into court and say, "Mary told me that..." Okay? If Mary told someone, then Mary needs to be the one that's in court, otherwise, it's hearsay. And you can have double hearsay, "Mary told John and John told me..." Stop. That's not going to come in.

So basically, when you're thinking of the evidence that needs to be presented, you have to go right to the horse's mouth. And I'm not calling Mary a horse. I'm saying... I like Mary, she's wonderful lady, but you need to get it from Mary. Mary needs to be the one that presents that information. And we're going to go in a little bit, we're going to very quickly touch on family laws, a weird kind of situation where some hearsay is sometimes admissible in the context of a written statement that's presented in the context of a temporary hearing. That written statement is still hearsay, but there is an exception in family law, temporary hearings. And like I said, we'll go into that in a minute.

Leh Meriwether: Right. Hearsay is a very simple rule. It's the exceptions to hearsay that can get very complicated. And that's why you have to spend a whole show on it.

Todd Orston: That's a great point.

Leh Meriwether: So let's talk about something that's fairly straightforward and it may not be as black and white as hearsay, but it's relevancy. Some case is very straightforward. So relevance means that if you're there to talk about a divorce, then the person testifying shouldn't be going on and on about something that may have happened 20 years ago, when it's only a 15-year marriage, because odds are, that's not relevant to the current situation. There's very few exceptions to that, but for the most part, that's not relevant. Talking about what someone may have said 12 years ago, again, is it relevant to what's going on today? Probably not. And so it's got to be relevant to one of the four areas of the divorce, either, equitable division, it's got to be relevant to if there's children involved, child support, alimony, child custody, and those things.

So the four core areas of family law, it needs to be relevant to that. And if it's not, the court is going to just say, "Look, we don't have time for this. This is not relevant." And you're going to have to move on. Going back to what I said earlier was, the testimony needs to be specific and firsthand. If it's not firsthand, odds are, it's going to be hearsay. So you want to give a couple of examples, Todd?

Todd Orston: Of?

Leh Meriwether: What we mean by specific and firsthand.

Todd Orston: Yeah. Well, I mean, specific and firsthand, obviously any testimony that comes in... Well, are we talking now about the hearsay angle?

Leh Meriwether: No, we're just talking about like... Well, here's an example. So a teacher comes in and testifies concerning a parent's involvement in the education and extracurricular activities of the child. So they can come in and they can say, "I saw Jim come into the meetings, the parent teacher conferences, but I never saw Mary." We're just picking on Mary today. Or vice versa. But I mean, "I never saw Mary come into any of the parent teacher conferences, and Jim was, especially the kids, because I was the coach for the team, for the soccer team, and Jim was there on the sidelines, always cheering on Alison playing the game and [inaudible 00:16:24]. All she did was just yell at Alison, saying she wasn't doing a good job. She wasn't encouraging." Well, she saw those things, they're specific and they're firsthand. She saw what happened with her own eyes, heard it with her own ears.

Todd Orston: Right. No, because if she says or if that witness says, "And Mary was always yelling, or at least that's what Carl told me." Now you're once again getting into the hearsay. So it does have to be firsthand knowledge. Now relevance is also interesting, and in family law, it's going to... So courts are going to give you some freedom to present because it's not just directly, sometimes it's directly relevant or it could be information that could lead to relevant testimony. So it could be, the courts going to give you a little bit of runway, but sometimes they're going to give an attorney a little bit more than somebody who was pro se because we can explain to the court, "Hey, we're painting a picture here." So just give us a little bit of runway and the court will say, "A little bit." All right.

20 years ago, when it's a 15-year marriage, I agree with you. For the most part, the court's not going to want to know anything about what happened before the parties got married. Now, could there be exceptions? Possibly. If somebody has a drinking problem and their first DUI was 20 years ago and their second was 15 years ago and their third was 10 years ago. Well, there's a pattern there, so you might be able to present the court and go, "Look, this is a problem right now and it's been a problem for 20 years." Okay. But that's a limited situation. Other than that, I agree with you. If it's that old, it's not relevant. If-

Leh Meriwether: And-

Todd Orston: Yeah. Go ahead.

Leh Meriwether: And I was going to say, even the example I gave with the teacher testifying concerning a parent's involvement in education. Well, you may be having a trial and the other side has already conceded. So like in the hypothetical I gave, Mary said, "Look, Jim gets..." And I know Mary wouldn't do this, but this is just a hypothetical I'm going with. So Mary conceded in a settlement agreement before the trial began that Jim has primary physical custody and that he gets to make decisions about education and extracurricular activities. So the lawyer for Mary may stand up and say, "Judge, this testimony of this witness is not relevant. Mary's already conceded all these points to Jim. She's not fighting over these things."

And then at that point, most likely the court's going to say, "Yeah, I don't need to hear from this teacher because this is not an issue in the case. You've already entered a settlement agreement regarding custody, and there's no reason to hear testimony that surrounds custody." So that's an example of how something that might normally be relevant, suddenly becomes irrelevant because there was a previous settlement agreement.

Another example, like sometimes you'll have neighbors come testify and say, "Yeah, I was at the party and I saw Jim slap Mary right across the face for no good reason. I was like two feet from them. And she said something, he just got mad and slapped her." So that would be testimony in a family violence case. But that specific, firsthand, he was there or she was there, she saw it, she heard that conversation ahead of time. That's very relevant for the issue at hand and specific, and they witnessed it. So you don't want to bring in, if your witness doesn't have that specific firsthand knowledge, don't bring them into court.

Todd Orston: Yeah. And to your point, even if there's no agreement, if you have a case where there's only, let's say division of property, I mean, if you're just figuring out how are you going to divide the house? That's literally the only issue you're presenting, then that evidence of the old DUI has no relevance. So just because you want to tell the story, this is a problem that a lot of people, non-attorneys have, because it's their lives, right? They have a story to tell and in their minds, it's like, everything is connected, abusive behavior, alcohol, whatever it might be. It's all part and parcel, and I want to tell my story in court. But what they don't understand is, all of those pieces of information, all of those parts or sub-parts of the story may not be, again, relevant.

So you need to understand, and this goes to, you need to figure out where am I going? What am I trying to accomplish? What do I need to accomplish in this hearing or trial? Once you understand that, you can work backwards. And that's where the evidence becomes important, figuring out what evidence do I need to accomplish the tasks I need to accomplish in court.

Leh Meriwether: So lastly, children, the children that are involved in the case in Georgia at least, can come to court and testify. It's often not advisable. I don't want to spend a whole lot of time on that because that could take up a whole show itself, but we're talking about kinds of evidence and yes, children can come to court and testify in certain limited circumstances. And the court can decide whether or not they testify, whether they want to hear from them or not as well. When we come back, we're going to talk about expert witness testimony.

I just wanted to let you know that if you ever want 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 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 soft.

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 & Tharp. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. And if you want to read the transcript of this show or go back and listen to it again, you can find it at divorceteamradio.com.

Today, we're talking about the four kinds of evidence that will help you win a trial. And we're not doing a deep dive on every element of it because we're going to save those for later shows. But we're touching on the four kinds of evidence that really can be used at trial. We just finished wrapping up lay witness testimony, which is just basically not expert witness testimony. But now we're going to talk about, again, we're not going to go a deep dive because we already had a whole show about all the different kinds of experts that you can have in court, or you might see in a divorce trial. So if that interests you, definitely go back and listen to that episode. I'm blanking on which number it was, but it wasn't that long ago, where we did a whole show on just the kinds of experts you may see at a divorce trial. All right, let's talk about what is an expert witness, Todd?

Todd Orston: All right. So what it really comes down to is it's the weight of the evidence presented by that witness. Okay. What weight will be given to that testimony by the court? And so where a layperson is going to be talking really more about observations and things of that nature, when you bring an expert in, an expert, you're basically saying to the court, and there are steps that must be taken to have the court recognize the witness as an expert, but you're asking the court to give greater weight to the testimony because you're saying, "Look, here's a technical issue, and I am bringing this expert in, who has specific training, education, knowledge about this one issue. And I'm asking that the court accept this testimony and give it a lot of weight to really give some strong consideration to what this witness is about to say."

But you can't just bring someone in and say, "Here's my neighbor, it's an expert on why my husband is a jerk." That's not what we're talking about. Everyone can't be an expert. So typical experts are going to be in the family law context, the most common I would say would be, is what's called the guardian ad litem. I'm not going to go into a lot of detail. Somebody appointed by the court to do an investigation as to a custody issue or custody issues and what would be in the best interest of the child.

They give their opinion then after a full investigation to the court, other people, business evaluators, child psychologists, if psychological evaluations need to be done, then we're talking about counselors and/or psychiatrists, so property experts, these types of people can come into court. And when they come into court, you don't just put Adam the appraiser up on the stand, you need to first get that person, get Adam accepted by the court as an expert. And if you do it successfully, then they can talk about the analysis and investigation that they did and what their results were.

Leh Meriwether: And what's important here too is, an expert will give their opinion of what should be potentially the outcome on the specific issue. So an example about piece of property. So let's say you've got the house, and the appraiser does an appraisal of it. And then they come into court, you qualify them as an expert. And they say, "Judge, in my expert opinion after being an appraiser for the last 15 years, and I did the following analysis of the house and it's current condition, the condition of this market surrounding it, what similar homes have sold for in the area and the neighborhood, in my expert opinion, this house is worth $500,000."

Now, in the meantime, if Jim and Mary both came into court and said, "In my lay opinion, I think the house is worth $400,000 or $700,000." Again, the court's going to give a greater weight to the expert's testimony than either of the laypersons' testimonies. And years ago, they changed the rules of evidence here in Georgia, a while back. But as a layperson, you couldn't even give opinion testimony, or it could be objectionable. And now they changed those rules a while back where a layperson can present what they call lay opinion testimony about a situation.

But an expert's testimony will always be given... Well, I say always. Will most of the time be given greater weight. There are exceptions to that. Both Todd and I have seen experts that are sort of in the community are considered, and I'm putting this in air quotes, "hired guns." And they come in and they will... I don't know if I would call it an impartial analysis, but they will definitely be leaning more one way than another. Meaning, when I say leaning, leaning in the way, the direction of the person who hired them. And so they're considered hired guns, and I've seen judges sort of discredit those opinions.

And we know some experts that have a lot of very high opinion. I mean, I've hired some of them, particularly for a business evaluation, and they came back with a number way lower than I was expecting. But that their job was to give their expert opinion. It wasn't to present an opinion favorable to my client. I was really hiring them for their true expertise. And so I quickly had to get over what my disappointment and the bottom line number, because I was hiring them for their honesty, their honest inspection analysis as to what this business was worth.

Todd Orston: Yeah. And a couple of points. Do you need expert witnesses? Not necessarily. Sometimes yes. Sometimes it's the only way to get reliable information in front of the court on an issue. But a couple of points. And the reason why you really need to educate yourself and make sure that you're comfortable being able to get this information in front of the court and get an expert basically accepted by the court. Number one, you don't want to be the person or the party that walks in without the expert. If the other side has an expert, you need to be thinking in terms of, should I have an expert? And your answer probably should be yes. So in other words, if you walk in and you're like, "I think..." And this goes to your example, "I think my house is worth about 500,000." And they bring an appraiser in who says, "The house is worth something different." Higher, lower, whatever, it doesn't benefit you.

Well, guess what? The court's probably going to give more weight to that expert testimony. So now I'm sort of hitting it from the angle of, okay, you understand expert testimony. Now you need to be thinking again, backing into what am I trying to establish? What am I trying to prove? What am I trying to accomplish? And if let's say valuation of a house is important, you should have an appraiser. You should be doing these things. Don't think of it like, "Well, I don't want to spend the money." That's very short-sighted. And if you really want to accomplish what you want to accomplish in court, get that expert and have an understanding of how to make sure the court will hear that evidence and accept that expert. Otherwise, the other side is going to get what they want. And once again, there's no second bite of the apple.

Leh Meriwether: And the other reason expert witnesses are often brought in is because there's information that the court needs to make its ruling, but can't get access to it on its own. So a judge, normally, he doesn't leave the courtroom and go interview people. That's not permitted. It's got to be in the court process. So here's a good example. There was a case where one party was claiming the other party was not properly homeschooling the children. And that the children were falling behind as a result, falling behind in school at their grade level. Well, they went to court and there was all this... And I know this because I know the person who was called as the expert. But the judge is like, "I'm trying to give equal weight here, and I don't really have any evidence one way or another."

He was basically saying, the judge was, "You all are kind of tie here and I don't have enough information to make. I feel like I can't make a decision that's in the best interest of the children. So what I'm going to do is I'm going to appoint an expert who will do an evaluation of these children and come back to court and testify to the court, to the parties, to me, as to what they think the children's grade level is based on their expertise." And that's exactly what happened. The person, it was someone I know, that's how I know about the story. And he was hired to do an evaluation of the kids and he did that and then came back to court and said, "Yeah, this child's two grades below grade level." And now the evaluation he couldn't do was what these kids... And that wasn't what he was asked to do is, was it because of a disability or a learning issue or was it because of the teacher, the mom, in this case?

The court didn't know, but the court said, "There's definitely an issue. I'm going to give weight to this expert." And then ordered the kids to go into public school and no longer homeschool. And then, and basically told mom like, "Hey, if nothing changes in a year, you can come back to court, and maybe the issue is some learning disability, but I don't have any evidence it is." So that's why the court does it. There was information the court needed, couldn't get without the expert. When we come back, we're going to talk about documentary evidence and photographic evidence.

I just wanted to let you know that if you ever want 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 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 soft.

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 & Tharp. If you want to read more about us, you can always check us out online, atlantadivorceteam.com. And if you want to read a transcript of this show or the other ones we have done, you can always find it at divorceteamradio.com.

All right, today, we're talking about the four kinds of evidence that will help you win your trial. And we talked about lay witness testimony, expert witness testimony. Probably the most common form of testimony is lay witness testimony, even in an uncontested divorce. One person at least has to come testify to the court, that there was a settlement agreement and it resolved all the issues and that their marriage is irretrievably broken without any chance of reconciliation. So that's the most common form of evidence is lay witness testimony.

The second one is, I think most common, is documentary evidence, but before we get to that, I want to hit the other form of evidence. They're both similar, but photographic and video evidence, which have really come on the rise since the invention of the smartphone. Photographic and physical evidence have become [inaudible 00:35:08] video taping has become very, very popular because it's so easy to whip out your phone and record a situation, especially in family violence situations.

Todd Orston: Yeah. I mean, it's very common, especially in family law, right? I mean, this person, I caught them doing X. I caught them doing Y. I have a video that I took and they were yelling. They were whatever. It's used in temporary protective order cases. They're presented in divorce cases, custody matters. So it is very common. But if you just walk in and say, "I got some pictures," that's not going to do it. Now, it also depends on the judge. Sometimes judges, when they're handling a case where there are no attorneys involved, where the pro se litigants, they're handling the matters themselves. Some judges will give a little bit of assistance. And they will go ahead and ask the necessary questions to make sure that the evidence can come in, but there are judges who, if you don't know what you're doing, they're not there to help you. And they will not help. And that means if you do it wrong, the judge will just refuse to see, to review that and consider that evidence.

So with photographs and videos, if you have something where you think it is relevant and you want to present it, you're going to need to be ready to present to the court and testify that the photograph or the videotape accurately represents what was being shown at the time that you took that photograph or video. And also that it hasn't been altered. So in other words, if you take the stand or are on the stand, you're handling this on your own, you have a videotape. You're going to need to say, "I took it," that, "I haven't altered it in any way, and what I'm about to show the court, it accurately represents what I observed at the time that I took the recording." And if you present it in that way, then it should, as long as it meets other requirements, like the relevance requirement, then it should be admitted. But if you don't do that, once again, you won't be able to tell your complete story because that evidence won't come in.

Leh Meriwether: And the other form of evidence in this arena is also voice recordings, which is also very popular. All I add in there is that some states allow what's called two party, require two-party permission. Some states like Georgia only requires a one-party permission. So if you give yourself permission to record the conversation, it's admissible. If you're in one that requires two party, and you try to admit it, you may be... By trying to admit a video, an audio tape that you recorded illegally, you could be in... I mean, I don't know how often they prosecute that stuff, but you could potentially be in criminal trouble, but it's definitely not coming into evidence. So just wanted to throw that out there.

But let's get into documentary evidence because it is the second most used form of evidence. So what do I mean by documentary? Well, the ones you see the most often are like paycheck stubs, tax records, bank account records, retirement account records. Especially when you're trying to determine the value of items in the marital estate, or you're trying to determine how much money do the parties make to determine how much child support needs to be paid, should alimony be paid. And if so, how much? But even considering custody cases. You've got school records. You have, one thing that's commonly used is the records from the pediatrician, which parent took the children to the pediatrician most often? And so the records from the pediatrician usually know which parent brought the children to the appointment. And so that can be used in a child custody battle. And I think the number one documentary evidence, I think I've seen in the last 15 years, is emails.

Todd Orston: Oh God. Yeah.

Leh Meriwether: And text messages.

Todd Orston: And text messages. And text messages, there are additional rules because I have seen some judges not want... Where somebody will go, "Whoa, texts were sent." And they literally turn on their phone and they're trying to show the judge the phone. But like I said, we could do a whole show on how to actually present, but you have to be very careful. There are some programs out there that allow you to go into a phone and accurately, basically, download all of the texts into a form or a format that you can then present the document to the court and say, "This is an accurate depiction of the texts that were sent." But the point is you're right. Those texts, the emails, they're used, as you can imagine, constantly to show good behavior, but also to show bad behavior, to show that even sometimes no behavior, right? I sent the opposing party an email asking about this visitation period. I sent it again the next day and the next week, and... never got a response.

Leh Meriwether: In a contempt case, I asked for reimbursement for this healthcare expense and this extracurricular activity expense. And I never heard back from them. So I resent it. I resent it and they never paid me.

Todd Orston: Yeah. Because I've seen people, especially to build on that, in contempts where they're like, "They didn't pay this." And the other side is like, "I never got a request. You never asked for it. I didn't even know that the debt was due and owing and so..." And then the court looks at the other side and goes, "Well, did you ever ask?" "Yes, I did." "Well, show me, where's your proof. Where's the evidence that you emailed, texted something to put them on notice they owed this money?" And if you can't do it, if you can't show it and if you don't present it properly and it doesn't come in, then guess what? You haven't proven your case, which means you're going to lose that hearing, the other side's not going to be held in contempt.

Leh Meriwether: Right. And so there's two funny things I've heard over the years about emails. One was a family law judge. She retired as a judge, but she used to say that emails are windows to the soul. [inaudible 00:42:02] she loved saying. And she loved reading them because she would say that, "I often get the person's true sort of thought process and opinion on things through the emails, not through their testimony in court." Because often they would say things in court that contradicted what was in the emails, especially as to tone and aggressiveness. So she used to say, "Emails are windows to the soul."

I'll never forget being in a deposition one time. And so I was using emails to the deponent, the person I was asking questions, he would say X, and then I would pull out an email and it was where he said the exact opposite, and he's, "Oh, well, maybe I said something different." And I think after the fifth time I did that, he just started telling the truth. On a break when he stepped outside, the court reporter asked, "What did you all do before emails? Because boy, you were able to really catch him on things." And the opposing attorney said, "Try cases in a day instead of four."

So documentary evidence can be very effective helping you win your case, if you submit it properly and get in the evidence. It can also result in you losing your case, but it often results in the case being much, much longer, because you need to present all those pieces of evidence.

One day, we need to have, I think Todd, we need to do a show where we talk about how do you parse down perhaps 500 emails to get the most important things into evidence, so you don't overwhelm the judge with emails that perhaps aren't as good for your case [crosstalk 00:43:51] aren't as good as they don't... They're not really persuasive?

Todd Orston: Yeah. It's a great point. And I actually think that we should do that because not only do you run the risk that the court won't listen or review all 500 emails, if you have one piece of great information stuck in the middle of 500 other pages, then the court's going to probably just miss it. The court's not going to consider what's really important. So you're watering down your own evidence. You're making it less important. And the last thing I'll say very quickly is, this is complex. So even if you don't have the ability to hire an attorney, do a consultation, get some help before you walk into court.

Leh Meriwether: Yep. Hey everyone, hope this was helpful to you. And thanks so much for listening.