September 2, 2019 § Leave a comment

State Holiday

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Travelogue

August 30, 2019 § 5 Comments

The Tetons

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Reprise: The Best Evidence Rule

August 23, 2019 § Leave a comment

Reprise replays posts from the past that you may find useful today.

UNDERSTANDING THE BEST EVIDENCE RULE

January 12, 2011 § 7 Comments

I would nominate MRE 1002 for second-most misunderstood rule of evidence (the all-time front-runner, without peer, would be the hearsay rule).

It’s fairly common to hear an exchange like this in court:

Atty 1:     How much did you pay for the house?

Atty 2:     Objection. The best evidence of what was paid would be the closing statement.

That objection and every one like it should be overruled.

MRE 1002 states:

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required except as otherwise provided in these rules or by law.  [Emphasis added]

The rule only applies and requires the original when a party is seeking to prove the content of the original.  Farris v. State, 906 So.2d 113, 115 (Miss. App. 2004).  It does not apply simply because there exists a writing, recording or photograph that may be considered the “best” evidence of the matter.

The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a party is trying to prove a matter by using a writing, recording or photograph as evidence of it.  The rule applies only when one seeks to prove the contents of the writing, photograph or recording so that they may be construed, and does not apply when one is seeking only to prove the existence of a writing, recording or photograph.  Kinard v. Morgan, 679 So.2d 623, 625 (Miss. 1996).

An example of (a) would be where the party is trying to testify to the terms of a written contract.  The contract itself would be the best evidence, and the original would need to be produced.

An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of purchase and prices.  The original invoice would itself establish the claim and would be the best evidence of the transaction.

The rule would not apply to the following situations:

A witness with personal knowledge can testify about how much he earned in a pay period without producing the original pay records.  Simply because written documents pertaining to a matter exist does not mean that a witness may not testify on personal knowledge about the matter.  On the contrary, though, if the witness does not have personal knowledge and relies on documents for her information, she would be required to produce the original documents.

A witness may testify that a document exists without producing the original, but any testimony about the document’s content will require production of the original.

A person who heard another make a statement that was recorded may testify about what she heard without having to produce the recording.

The rule does not apply to physical evidence that is not writings, photographs or recordings.  Riley v. State, 1 So.3d 877, 882 (Miss. App. 2008).  In Riley, the appellant argued unsuccessfully that the State had violated the best evidence rule by not offering the original firearm involved in the crime into evidence.

The evidence qualifies as a “duplicate,” as defined in MRE 1001(4).

So here is the bottom line:  A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing, and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its content.

An important caveat:  Just because you have satisfied MRE 1002 by producing the original does not in and of itself make that original admissible.  The document or recording must still meet authentication and hearsay objections, and a foundation must be laid for admission of the photograph.

MRE 1004 provides some exceptions to the requirement for the original, such as loss or destruction of the original, original not obtainable, or original in possession of an opponent.  Production of the original may also be dispensed with if the document, recording or photograph pertains only to collateral matters.

Travelogue

July 26, 2019 § 2 Comments

Yellowstone

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Dispatches from the Farthest Outposts of Civilization

July 19, 2019 § Leave a comment

July 8, 2019 § Leave a comment

State Bar Annual Meeting and Summer School

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July 4, 2019 § Leave a comment

State Holiday

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Reprise: Some Suggested PSA Provisions

June 28, 2019 § Leave a comment

Reprise replays posts from the past that you may find useful today.

SOME SUGGESTED PROVISIONS FOR PSA’S

January 18, 2012 § 2 Comments

Every lawyer has his or her own idea about what needs to be included or not included in a property settlement agreement (PSA) for an irreconcilable differences (ID) divorce. Here are some provisions I have seen in PSA’s through the years that you might find helpful in specific instances.

Protection from debts incurred by the other party:

Debts. If either party has made any debt in the name of or against the credit of the other, the party making such debt shall be solely responsible to pay it promptly and in due course, and to indemnify the other. There are no other joint debts of the parties. Each party shall be solely responsible to pay the debts incurred by him or her in their own name. From and after the date of this agreement, neither will incur any debt in the name of or against the credit of the other, and neither will do any act or thing to impair the credit of the other. Each will indemnify and hold the other harmless for his or her obligation to pay any debt provided for in this Agreement.

Attorney’s fees:

Attorney’s Fees and Costs. Husband and Wife each agree to pay his or her own separate attorney’s fees incurred in obtaining a divorce on the sole ground of irreconcilable differences.

Where other documents will be necessary to finalize the entire settlement:

Execution of Documents. Husband and Wife each agree to execute and deliver promptly any and all documents, papers, agreements, assignments, titles, bills of sale, contracts, deeds, Qualified Domestic Relations Orders (QDRO’s), and other papers of every kind and nature whatsoever deemed necessary by the other to effect the spirit and intent of this Agreement.

To confirm and ensure that there are no unwritten or side agreements:

Entire Agreement. This Agreement constitutes the entire agreement between the parties, and each acknowledges that there are no other or further agreements not expressly included herein. This Agreement is contractual, and not merely a recital. The parties agree that no part of the consideration for this Agreement is any promise, inducement, representation, or agreement to obtain or maintain any divorce action in any Court. Each party acknowledges that this Agreement is entered into freely and voluntarily, without force, duress or influence by any person.

Release of all claims:

Final Settlement and Release of all Claims. Husband and Wife acknowledge that they have read this Agreement and carefully considered the same, and do further acknowledge that this Agreement permanently and finally resolves all marital and personal disputes between them, including, but not limited to, any and all claims for alimony, personal injury, defamation, invasion of privacy, torts of every kind and nature, and division of property rights between the parties hereto, and they do hereby mutually release each other from all claims that each has against the other, other than as specifically set forth in this Agreement, .

Where the parties want the agreement to be enforceable whether or not approved by the court*:

Approval by Court. The parties agree and stipulate that their Agreement shall be made a part of, and shall be incorporated into the Court’s Judgment of Divorce on the ground of irreconcilable differences. The parties understand and acknowledge that, although this Agreement is subject to approval by a court of competent jurisdiction in order for it to be incorporated into and made a part of any Judgment of Divorce between them, it shall nonetheless be a binding and lawful contract between them, and that its enforceability shall not be affected in any way by its approval or non-approval by any court in connection with any divorce action between them. If either party files any contest to a divorce between them, this Agreement shall nonetheless be enforced in all of its terms.

A useful provision to ensure that there are no open-ended obligations:

Date of the Agreement and Time to Perform. The date of this agreement shall be the date when it has been executed by both parties. If no specific time limit is stated for taking any action prescribed in this agreement, then the parties agree that all such actions will be accomplished in a reasonable time, but not later than thirty (30) days from the date of entry of any judgment of divorce between the parties on the sole ground of irreconcilable differences.

Where one party is not represented:

Representation. Husband is represented by [attorney]. Wife is not represented by an attorney, and she is representing herself, in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife is fully competent to do so, and she is under no legal or other disability. Wife understands that the law firm of [attorney] represents Husband alone, and Wife further acknowledges that she has relied on her own best judgment in connection with the execution of this agreement and in connection with any divorce proceeding between the parties, and that she has neither received, nor expects to receive, any counsel or advice from Husband’s attorney. Wife understands that she is and has been free to consult with any attorney at any time in connection with the execution of this agreement and in connection with any divorce proceeding between the parties. Wife understands that she should not sign this Agreement unless and until she understands all of its provisions in full.

Clarification that tax advice has not been rendered:

Tax Advice. The parties acknowledge and understand that there may be certain tax consequences pertaining to this Agreement, and that each of them should obtain independent tax advice from qualified tax accountants or tax counsel prior to signing. Husband acknowledges that he has not received tax advice from his attorney in connection with this Agreement and a divorce.

Closing the door on a party claiming later that the property should have been appraised:

Fair Division. The parties agree that this Agreement is a fair division of their assets and a fair allocation of debt between them. They acknowledge that the most accurate method of determining values of assets would be to have them appraised, but they agree to save time and money as to values by relying on their own best judgment.

If a former name is to be restored, it is a good idea to include that agreement in the PSA:

Name Change. Wife may, at her sole election, have her name changed to a name of her choosing in any final Judgment of Divorce between the parties.

There is no guarantee that any of these provisions will be effective in any given court. I am offering them as a suggestion for points you might want to cover in your own PSA’s. There are certainly better or other ways to state the same points.

_______________

* “Today we hold that a property settlement agreement executed in contemplation of a divorce based upon irreconcilable differences is unenforceable when one party withdraws from the irreconcilable differences proceeding and seeks a divorce on grounds other than irreconcilable differences. Much confusion may be avoided by inserting appropriate language within the property settlement agreement which specifically addresses this contingency … the contract should specify, with particularity, within its four corners, whether it is to be limited to an irreconcilable differences divorce or whether it is intended to be binding in a divorce granted on any other grounds.” Grier v. Grier, 616 So.2d 337, 341 (Miss. 1993) [Emphasis added]. The unmodifiable (i.e. property settlement) provisions of the PSA  may be enforced by the court sans a divorce, but the modifiable (i.e. child support and custody and periodic alimony) issues may not.

Reminder About the Chancery Judges’ Benchbook

June 26, 2019 § 1 Comment

Last month I posted that the Mississippi Judicial College is unlocking the Benchbook for Mississippi Chancery Judges so that it will be accessible to all.

So I am reminding you that you will be able to access this great resource beginning July 1 at this link.

June 12, 2019 § Leave a comment

Globetrotting for the next little while.

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