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.

A THOUSAND WORDS’ WORTH

November 29, 2010 § 1 Comment

Rule 1006 of the Mississippi Rules of Evidence allows you to offer charts, summaries or calculations where the evidence is so voluminous that it would be inconvenient to develop it in the course of testimony.  The procedure is simple:  The originals are produced at a reasonable time and place for inspection and copying, and the court may order that they be produced in court, although introduction of the originals is not required, according to the official comment to the rule.

The advantages of this rule can be pretty significant.  It can improve your effectiveness in presenting complex proof, and give you an edge over an opponent who is too lazy to avail himself of it.

Here are a few examples:

  • There is a claim of wasteful dissipation of assets based on abuse of a credit card over a three-year period.  There are literally hundreds of transactions.  Instead of dumping the statements into evidence, prepare a chart showing yearly and monthly totals.  Another chart could highlight spending trends, such as dates and amounts of casino cash advances, jewelry purchases and so on.  Witnesses can then be questioned about particular aspects of the matter without laborious testimony to establish the underlying transactions.
  • Six years of tax returns are relevant.  Chart the income and taxes paid, or the depreciation and deductions claimed, rather than tediously poring over them.
  • The other party has fluctuating income.  Use charts and graphs to illustrate.

A variation on this theme is to present your client’s position in a concise written form, as, for instance, where your client is requesting particular provisions for visitation.  Have the proposed visitation arrangement reduced to writing and have your client testify about the key articles.  Introduce the proposed arrangements through your client.

As always, put yourself in the judge’s shoes.  If all you do is put 76 credit card statements in evidence with some testimony of a witness or two, are you sure that the judge will draw all the conclusions that you want her to?  If all you do is put tax returns into evidence with some testimony, will the judge in his deliberations focus in on exactly what you need to win?  Which evidence is more likely to get a detailed, thorough going over:  raw documents with some notes taken by the judge; or a chart that focuses the judge’s attention like a laser on the details you need?

Rule 1006 is a super tool.  It lets you reduce literally thousands of words (and, consequently judge’s notes) into a picture.  And we all know how many words a picture is worth.

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