October 12, 2015 § 3 Comments
MRE 803(6) is an important exception to the hearsay rule. It allows you to admit into evidence certain documents even though they are in essence hearsay. The rule reads this way:
Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or self-authenticated pursuant to Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
The document is admissible (1) if the information recorded was by a person with knowledge, and (2) the document was kept in the course of regular business activity, and (3) keeping such information in that form was the regular practice of the entity.
It is not necessary for every person who participated in compiling the data to come to court to testify about it to make it admissible. It can be authenticated by a “custodian or other qualified witness,” or it can be self-authenticated, as we will discuss below.
The court will determine whether the source and method of preparation are trustworthy enough to support admissibility.
Self-authentication is covered in MRE 902. To put it in simple terms, self-authentication means either that
- The document itself bears insignia or signs of authenticity so that a custodian or other person is not necessary to identify it and establish its authenticity. Some examples are set out in the rule, and you can expand on those to come up with other categories of documents to authenticate in this fashion.
- The document is accompanied by a certificate of authenticity as provided in MRE 902(11). This category is a little more ticklish to accomplish, so we will look at it in greater detail.
MRE 902(11) provides as follows:
(A) The records of a regularly conducted activity, within the scope of Rule 803(6), about which a certificate of the custodian or other qualified witness shows (i) the first hand knowledge of that person about the making, maintenance and storage of the records; (ii) evidence that the records are authentic as required by Rule 901(a) and comply with Article X; and (iii) that the records were (a) made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; (b) kept in the course of the regularly conducted activity; and (c) made by the regularly conducted activity as a regular practice. Such records are not self-authenticating if the sources of
information or the method or circumstances of preparation indicate lack of trustworthiness.
(B) As used in this subsection, “certificate” means, (i) with respect to a domestic record, a written declaration under oath or attestation subject to the penalty of perjury; and, (ii) with respect to records maintained or located in a foreign country, a written declaration signed in a foreign country which, if falsely made, would subject the maker to criminal penalty under the laws of that country. A certificate relating to a foreign record must be accompanied by a final certification as to the genuineness of the signature and the position in the regularly conducted activity of the executing individual as is required for certification of Foreign Public Documents by subsection (3) of this rule.
So to comply with this part of MRE 902(11) you must file an affidavit under criminal penalty of perjury that the affiant swears that all of the requirements of MRE 803(6) are satisfied, and that the affiant is a person who could establish authenticity if he or she were to testify. You should track the language in both paragraphs in drafting your affidavit. Note that if the affidavit is by a person in a foreign country you must comply with MRE 902(3).
Now that you have done all that, there is more that you need to do to make the document(s) admissible at trial. MRE 902(11)(C) is critical:
(C) (i) Records so certified will be self-authenticating only if the proponent gives notice to adverse parties of the intent to offer the records as self-authenticating under this rule and provides a copy of the records and of the authenticating certificate. Such notice must be given sufficiently in advance of the trial or hearing at which they will be offered to provide the adverse party a fair opportunity to consider the offer and state any objections. (ii) Objections will be waived unless, within fifteen days after receiving the notice, the objector serves written specific objections or obtains agreement of the proponent or moves the court to enlarge the time. (iii) The proponent will be responsible for scheduling a hearing on any objections and the court should hear and decide such objections before the trial or hearing at which they will be offered. If the court cannot rule on the objections before the trial or hearing, the records will not be self-authenticating. (iv) If in a civil case, on motion by the proponent after the trial
or hearing, the court determines that the objections raised no genuine questions and were made without arguable good cause, the expenses incurred by the proponent in presenting the evidence necessary to secure admission of the records shall be assessed against the objecting party and attorney.
You must give timely notice to your opponent of your intent to offer the records under this rule, and if the opponent objects, you must set a hearing for the court to resolve the issue. Note the language of the rule: “Records so certified will be self-authenticating only if the proponent gives notice …” No notice = no self-authentication.
Sometimes lawyers agree on a handshake to let the document(s) in. That’s okay when it works, but every lawyer has a tale of woe about an opponent who said one thing in the halls of the courthouse two weeks ago, and then does not quite remember it the same way on the floor of the courtroom at trial. Better practice is to file that notice with a certificate of service. At a minimum, you should document the notice via email or regular mail. Any documentation is better than none, but some forms are better than others.
MRE 902 is a marvelous road map for how to get documents into evidence without a sponsoring witness, but you’d better follow it in every detail if you wish to succeed.
March 30, 2015 § 2 Comments
Have you ever stopped to ask yourself what the phrase “in evidence” means? We toss it around all the time. “Is that in evidence?” “Your honor, I object because that document is not in evidence.”
The phrase simply means that the judge or the jury can look at the document or hear the testimony, and can consider it in reaching a decision.
The meaning is simple, but the ramifications can be profound.
- If something is not in evidence, it is not part of the record. If it is not part of the record, the judge can not consider it.
- If you offered something into evidence and were denied, you must make the proffered evidence part of the record. If it was oral testimony, you must make an offer of proof (MRE 103(a)(2)). You can do this by requesting to make an “offer of proof,” or a “proffer.” The judge will then allow you to state on the record what the testimony would have been, or will allow you to do it in question-and-answer form (MRE 103(b)). If the ruling was one denying entry of a document in evidence, then you must ask that the document be marked for identification only, which request will always be granted. Remember that neither a proffer nor a document marked solely for identification may be considered by the judge in ruling on the merits; however, they are part of the record on appeal.
- Pleadings are not evidence. Just because you pled something does not mean it is proven.
- Never fail to put on proof based on your assumption that the judge will connect the dots and draw the conclusion favorable to your client. The judge might not. Or the judge might, but there will be inadequate evidence in the record to support the judge’s conclusions, which is the formula for reversal on appeal.
Make sure that every element or factor that you need to prove is supported by proof in evidence. A graphic illustrating this vital concept is here.
August 19, 2014 § 2 Comments
This is for the young lawyers out there.
Imagine yourself perched at the pinnacle of what appears to you to be a mountain in the middle of the ocean. You examine your environs as closely as you can, and gather that you are on a peak of ice, surrounded by miles of water. The mountain is relatively featureless, save for a few large stones here and there. The slopes descend into the sea and nothing beneath the surface of the water is visible. Everything you know about your location is what you can see. You conclude that you are on an iceberg, and you guess that there is much more to it that is hidden from you below the waterline, but you have no actual knowledge of the size or dimensions of what lies below.
That view from the tip of the iceberg is what the judge has at the conclusion of a trial in chancery.
The judge knows that there is so much more that is not in the record, but all the judge may go on is what has been revealed. The scope of the judge’s knowledge of the case is limited by the rules of evidence, the MRCP, the pleadings, the discovery, the skill of the lawyers, and the ability of the witnesses to articulate. All of those things are filters through which the facts are passed and reduced to the concentrated mass that the judge must consider in making a ruling. And the judge must make his or her ruling based only on the competent proof in the record.
Remember that you and opposing counsel know ten times or more about your case than the judge will ever know. And never forget that your client and the party opposite know ten times more about the case than they will ever share with the attorneys.
If you don’t put something into the record, the judge not only will not know about it, she can not even consider it. And I am talking about the record as in via evidence. Pleadings are not evidence. Just because you alleged a fact in a pleading does not mean that it is proven so that the judge can consider it.
As you plan out your case for trial, take a minute and imagine that view from the iceberg. Ask yourself what it is you see if you identify all of the competent evidence that you get into the record. Is it enough? Does it include all the judge needs to know? Is there enough evidence to support every factor you need to prove in order to prevail? Have you made a thorough enough record to support your argument on appeal?
February 27, 2014 § 3 Comments
The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.
To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.
It doesn’t have to be so complicated, however.
Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.
Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.
Here are the proper steps:
- Establish that the witness is unable to recall a particular thing.
- Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
- If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
- Now the lawyer asks again if the witness now remembers after looking at the writing.
- If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
- If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.
MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.
The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).
The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.
In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.
An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.
October 16, 2013 § 4 Comments
MRCP 32 (a)(3)(E) allows for the use of a deposition at trial of a medical doctor “for any purpose.” R32(a) says that the deposition may be used ” … so far as admissible under rules of evidence applied as though the witness were then present and testifying… ”
In practice, that language has been applied to excuse medical doctors from personal appearance at trial, allowing their testimony to be presented by video deposition, or by reading into the record in jury trials, or by introduction of the transcribed deposition in bench trials. The deposition of a medical doctor, then, per this rule, has been deemed admissible in evidence as though the doctor were present and testifying, simply because the witness is a medical doctor.
When this amendment to rule 32 was adopted. It was seen as a friendly gesture to the medical profession, a way to encourage testimony of doctors without unduly interfering with their schedules. All doctor testimony henceforth would be via deposition. It was a no-cost win-win.
But, as Lee Corso would say, not so fast my friend.
The deposition of the medical doctor is unquestionably a hearsay statement, so how does MRCP 32(a) mesh with MRE 804(a), which creates the hearsay exception for persons deemed unavailable to testify? If you will read MRE 804(a), it is clear that the mere status of medical-doctorhood does not automatically fit one into any of the six definitions of unavailability set out in subsection (a). Nor does that status automatically fit into any of the hearsay exceptions in subsection (b). It may be that the doctor’s statement could be qualified as an exception under subsection (b)(5), but that would require a finding by the court, after prior notice by the offering party to counsel opposite.
The answer is that the MRE controls. That’s what MRE 1003 states: “All evidentiary rules, whether provided by statute, court decision or court rule, which are inconsistent with the Mississippi Rules of Evidence are hereby repealed.”
This gap between the two rules caught a party unprepared in the case of Parmenter v. J & B Enterprises, Inc., 99 So.3d 207, 219 (Miss. App. 2012), in which the trial judge disallowed the expert testimony via deposition per MRCP 32(a) where there was no proof of unavaiability as defined in MRE 804. The appellant unsuccessfully argued that MRCP 32(a) allowed the introduction. The COA held, to the contrary, that the MRE provision controlled.
Don’t assume that, just because you have gotten that doctor’s deposition, it will automatically be admissible in lieu of the doctor’s personal testimony. To do that, you will still have to prove the doctor’s unavailability as defined in MRE 804. That may be something you can achieve via requests for admission, or by stipulation, or by making a record.
Oh, and don’t overlook (1) that you have to plant somewhere in the record enough proof to satisfy the judge of the doctor’s qualifications to testify as an expert in the first place, and (2) that MRCP 32(a) applies only to medical doctors, not to PhD clinical psychologists. Those were two stumbling blocks for the plaintiff in Parmenter.
August 22, 2013 § 2 Comments
Yesterday I visited the COA’s decision in Pelton v. Pelton, which the COA reversed because the chancellor did not make findings on the Ferguson and Armstrong factors.
All most of us know about Pelton is what we read in the opinion.
But before you dismiss this as the fault of the chancellor, consider the possibility that the record may not have included what the judge needed to adjudicate this case. I’m not saying that’s what happened here. I’m merely pointing out that sometimes the judge has to make do with what he or she has in the record. And sometimes what is in the record is not enough to cover all of the factors.
For example: in an equitable distribution case, the judge must first determine which assets are marital, and then go through the Ferguson factors to determine whether and how they should be divided. I have heard cases where there is next to no evidence as to when or how the assets were acquired. I have heard cases with scant evidence upon which to make Ferguson findings.
In a child custody case, the judge can not make Albright findings on evidence that is not in the record. So if you want the judge to consider your client as the parent with continuity of care, then you will have to put on proof to that effect. Another chancellor related his experience in a case a couple of years ago where the custodial parent defending a custody modification put on no proof as to Albright factors at all. What exactly is the chancellor to do in that situation?
MRE 614 does allow the judge to call witnesses and intrrogate them, which would seem to be a viable option where the best interest of a child is involved. But that should be a last resort in a contested case, and, in my experience, is rare in chancery court.
The bottom line is that you have to make your record. The chancellor can not rule on evidence not in the record. The appellate courts can not find that the trial judge’s ruling is supported by substantial evidence in the record when it is not there.
June 25, 2013 § 1 Comment
The COA decision in Ivy v. Ivy, decided December 11, 2012, is a tour de force analysis of the hearsay rule and the parentage presumption. It’s far beyond the scope of this humble blog to break the 30-page majority and 10-page dissenting opinions down in detail, but the case bears mentioning for a few points:
- If you intend to offer a document into evidence that pertains to a material fact and is circumstantially trustworthy but not within any of the specific hearsay exceptions, it may not be admitted unless you first comply with MRE 803(24), which requires you to give the other side notice of it and an opportunity to “prepare to meet it.”
- Even self-authenticated documents under MRE 902 require prior notice to opposing counsel before they may be admitted at trial.
- The majority opinion’s analysis of the confusing welter of statutes for acknowledgment of paternity may be helpful to you, particularly in a wrongful-death setting as was the case here.
In Ivy, the battle was to determine who were the heirs at law and wrongful-death beneficiaries. There was a lot at stake, because the decedent had been killed in a car-train collision in Kemper County, which had the potential to produce a lucrative verdict or settlement.
The chancellor admitted into evidence an affidavit and DNA test that supported the conclusion that the decedent’s mother and siblings were the only heirs and wrongful-death beneficiaries. The COA ruled, after detailed analysis, that the chancellor should not have admitted the affidavit and DNA report into evidence. The case was remanded for “further proceedings consistent with this opinion.” To me, this means that the parties are headed for a do-over, with the COA majority opinion as a road map to a proper conclusion.
October 23, 2012 § 3 Comments
There is more to proving your case for an increase in child support than simply proving that the payer’s income has increased.
In the case of Adams v. Adams, 467 So. 2d 211, 215 (Miss. 1985), the MSSC laid out 10 factors that the trial court must consider in determining whether an increase is warranted. You have to put proof into the record to support as many factors as apply in your case. The factors are:
- Increased needs caused by advanced age and maturity of the children;
- Increase in expenses;
- Inflation factor;
- The relative financial condition and earning capacity of the parties;
- The physical and psychological health and special medical needs of the child;
- The health and special medical needs of the parents, both physical and psychological;
- The necessary living expenses of the paying party;
- The estimated amount of income taxes that the respective parties must pay on their incomes;
- The free use of residence, furnishings, and automobiles; and
- Any other factors and circumstances that bear on the support as shown by the evidence. (citing Brabham v. Brabham, 226 Miss. 165, 176, 84 So. 2d 147, 153 (1955).
Expenses of private school are a legitimate factor to consider in modification proceedings, although the expenses are inadequate standing alone. Southerland v. Southerland, 816 So. 2d 1004, 1007 (¶13) (Miss. 2002).
Educational expenses may be properly considered with the increased needs of older children and their increased extracurricular activities in order to justify an increase in child support. Havens v. Brooks, 728 So. 2d 580, 583 (¶9) (Miss. Ct. App. 1998).
Remember that the keystone consideration for modification is a change in expenses of the child. You must put on proof that establishes what the expenses were at the time of the judgment you are seeking to modify, as well as proof of the expenses at the time of trial. Most importantly: It is not adequate to prove only that the income of the paying parent has increased.
So here are a few tactics that may help:
- Alter your 8.05 to add a column on both the income page and on the expenses pages for the date of the divorce or judgment you are seeking to modify. For example, if you are seeking to modify a judgment entered May 5, 2001, add a column headed “MAY 5, 2001.” Then get your client to itemize her income from back then, as well as the expenses. The expenses should show an increase; if they don’t, you have a probably fatal flaw in your case. It is not necessary that your client have documentation to support her figures, although that would help bolster her credibility. Your client can base her figures on her recollection, or, if she has an 8.05 from 2001, use that document. By juxtaposing the figures for the earlier date with current figures, you are making it easy for the judge to view how the expenses have increased. Also, you are providing proof in specifics, and not generally.
- See if you can get the other side to admit the consumer price indexes for the relevant periods. You can use RFA’s or get the attorney on the other side to stipulate, thus establishing “the inflation factor” of Adams.
- If you can’t prove the inflation factor any other way, ask your client based on her experience whether prices in general for goods and services for the children have gone up or down during the relevant period. At least you will give the judge something to sink her teeth into on the inflation point.
- Do enough discovery to obtain copies of tax returns for the payer both at the time of the prior judgment and currently.
- Be sure to discount expenses your client agreed to share. For instance, if your client agreed to pay one-half of the private school tuition, include only her one-half in the children’s expenses.
- Expenses have to be reasonable. Don’t expect the judge to find a substantial increase in expenses based on activities that are out of proportion to the parties’ accustomed standard of living or are not necessary. A middle-income case in which the child has taken up a hobby of raising show ponies that cost thousand of dollars and involve expensive travel to shows around the country and abroad will likely receive negative attention, while a case in which the child has struggled in school and needs the added expense of tutoring and ADD medication would likely receive positive attention.
September 24, 2012 § Leave a comment
The 12 Armstrong factors have long been the decisive authority to be applied by the court in making its determination as to the type, amount, and reasonability of alimony. In the recent COA case of Pecanty v. Pecanty, decided September 18, 2012, however, Judge Fair’s opinion cited (at ¶25) to the 2002 Davis v. Davis case, 832 So.2d 492, 497, where the MSSC laid out 17 factors. Here’s the pertinent language from Davis:
In determining whether to make an award of periodic alimony, the following factors must be considered: (1) the health of the husband and his earning capacity; (2) the health of the wife and her earning capacity; (3) the entire sources of income and expenses of both parties; (4) the reasonable needs of the wife; (5) the reasonable needs of the child; (6) the necessary living expenses of the husband; (7) the estimated amount of income taxes the respective parties must pay on their incomes; (8) the fact that the wife has the free use of the home, furnishings and automobile; (9) the length of the marriage; (10) the presence or absence of minor children in the home; (11) the standard of living of the parties, both during the marriage and at the time of the support determination; (12) fault or misconduct; (13) wasteful dissipation of assets; (14) the obligations and assets of each party; (15) the age of the parties; (16) the tax consequences of the spousal support order; and (17) such other facts and circumstances bearing on the subject that might be shown by the evidence. Hemsley v. Hemsley, 639 So.2d 909, 912 (Miss.1994); Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993); Hammonds v. Hammonds, 597 So.2d 653, 655 (Miss.1992); Brabham v. Brabham, 226 Miss. 165, 84 So.2d 147, 153 (1955). In determining the amount of support payable to the wife, a chancellor must consider “not only reasonable needs of wife but also right of husband to lead as normal a life as reasonably possible with a decent standard of living.” Massey v. Massey, 475 So.2d 802, 803 (Miss.1985); Hopton v. Hopton, 342 So.2d 1298, 1300 (Miss.1977) (quoting Nichols v. Nichols, 254 So.2d 726, 727 (Miss.1971)).
The Davis factors expand on the Armstrong factors in several significant ways:
- In addition to “the reasonable needs of the parties,” the court is to consider the reasonable needs of the child. This is significant because it opens the door to evidence about the impact that a child has not only on the expense and availability of child care, as set out in Armstrong, but also to the other needs of the child above and beyond child support, and how those needs impact the alimony recipient’s living expenses.
- In addition to the Armstrong “tax consequences of the spousal support order,” Davis directs the court to consider the amount of income taxes the respective parties must pay on their incomes. Under Davis, the trial court must address not only the tax consequences, such as deductability, but also the availability of refunds, deductions, exemptions and other factors that influence income taxes upward or downward.
- The fact that “the wife” (read “payee”) has free use of the home, furnishings and automobile is included as a factor. Granted, it has long been the law in Mississippi that those items are considered as part of the spousal support package, but the inclusion as a factor to be considered promotes it to a higher level of consideration.
It can be argued that Davis does not really add anything new to Armstrong. That may be so, and most attorneys, in presenting their Armstrong proof cover the same bases (except for income tax proof, which lawyers rarely touch on) for the most part. Still, I think it’s worth adding these to your portfolio of useful checklists. After all, in affirming the chancellor in Pecanty, Judge Fair noted with favor that she ” … addressed the seventeen factors set out in Davis … ” If he (and the rest of the COA) considered them noteworthy, we would be wise to do the same.