GETTING THAT SUMMARY INTO EVIDENCE

March 9, 2011 § Leave a comment

I’ve talked here before about the beauty of MRE 1006, which allows you to summarize voluminous records and admit the summary into evidence.  The charm of the rule is that (1) it eliminates the need for tedious searching through documents to locate the nuggets you need and eliminates as well the tedious testimony it takes to do that, and (2) it makes the judge’s job easier, which makes the judge happier, and a happier judge is better for your case than a grumpy one.

So you’ve gone and condensed those ten years of credit card statements into a summary showing the expenditures for jewelry for the opposing party’s girlfriend, their trips to Gulf Shores, the vacation spending on the family, and the payments on the credit card showing that he never ran a balance until the separation, when the balance began to balloon.  All great stuff, and it’s going to help your alimony claim big time.

You proudly offer the summary and your wily opponent objects.  Sustained.  Every attempt you make to get the summary in meets with an objection.  Sustained.  You close your eyes and silently curse the judge who gave you the idea to go to all the trouble to do the summary in the first place.  Where did you go wrong?

Well, you have to lay a foundation first.

To get a Rule 1006 summary into evidence, you have to establish 5 things:

  1. That the original writings, recordings or photographs are, in fact, voluminous;
  2. That the originals can not be conveniently examined in court;
  3. That the originals, or duplicates, have been made available for examination or copying, or both, by the other party at a reasonable time and place;
  4. That the originals would be admissible in evidence; and
  5. That the chart, summary or calculation offered in lieu of the voluminous originals is fair and accurate.

Now, let’s rewind the above scenario and do it right (assuming you’ve already laid a foundation for entry of the credit card statements):

You:  Mrs. Smith, did you have an opportunity to examine all 120 of the MasterCard statements?

Witness:  Yes, I did.

You:  How many pages of statements were there?

Witness:  More than 600.

You:  After you examined them, what did you do?

Witness:  I extracted certain information, collated it into categories, and organized it into a summary.  I also highlighted the various charges on the original duplicates in colors corresponding with the categories.

You:  Does your summary fairly and accurately duplicate and summarize the information in the credit card statements?

Witness:  Yes.

You:  Your honor, I would ask that the record reflect that I did make the original credit card statements available to counsel opposite for examination and copying in discovery more than three months ago.

Counsel Opp:  That is correct, Judge.

You:  I offer the summary into evidence.

Counsel Opp:  Objection.  Best evidence rule, hearsay, self serving, redundant and cloud of witnesses.

Judge:  Overruled.  Let the document be marked as the next numbered exhibit and admitted into evidence.

That’s really all there is to it.  When the judge is poring over his notes and the exhibits to adjudicate the case, he will be extremely grateful that he has that nice summary to use instead of having to dig through 600 pages of credit card statements with thousands of transactions.  Not only that, he will be less likely to overlook something you considered critical.  The extra money your client has to spend for you to prepare the summary will be worth every dollar.

Wells v. State, 604 So.2d 271, 274-5 (Miss. 1992) is a case that illustrates the use and authentication of a summary in a jury trial.

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