Latest / Family Law Talk / Hearsay in divorce and family law litigation

Transcript

Hearsay in divorce and family law litigation · Family Law Talk

• 0:01
  Speaker 1: Welcome to Family Law Talk. Familylaw Talk presented by Kirk
• 0:06
  Stangy of Stangy Law Firm DC. Stangy Law Firm is
• 0:10
  a multi state family law firm. Now here's your host,
• 0:15
  Kirk Stangy.
• 0:18
  Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
• 0:22
  The topic is hearsay in divorce and family law litigation.
• 0:26
  In this episode today is based on an article on
• 0:29
  our blog Famlawheadquarters dot com dated September fourteenth, twenty twenty four,
• 0:35
  and the title of the article is what is hearsay
• 0:38
  in Divorce and Family Law Matters? So, as a follow
• 0:41
  up to the episode today, go on over to FAMI
• 0:43
  Lawheadquarters dot com and read the article that'll give you
• 0:46
  more information on this topic today. But let's go ahead
• 0:49
  and jump on in. In the legal world, there is
• 0:52
  this legal concept known as hearsay. Lawyers learn about this
• 0:56
  in law school, and even lawyers attending law school and
• 1:01
  taking an evidence class can be very confused by the
• 1:05
  concept of hearsay. It's very confusing, it's riddled with all
• 1:09
  kinds of exceptions, and so truly, this is complicated for
• 1:13
  family lawyers to navigate in certain respects, and so for
• 1:17
  individuals going through a divorce or FAMI law matter. This
• 1:20
  whole concept can be sort of overwhelming, can be confusing,
• 1:24
  and a lot of litigants truly have no idea how
• 1:27
  it works and how this might apply to their case.
• 1:29
  I'll try to cover it as simply as I can today,
• 1:32
  and again, I think this is convoluted in the weeds
• 1:35
  for many, but it's an important concept that individuals should
• 1:38
  be aware of if they're trying to plan out their case,
• 1:41
  particularly if it's a case it's going to go to
• 1:42
  a trial or an EVIDENTI or a hearing. Okay. So
• 1:45
  hearsay is in the Federal Rules of Evidence in rule
• 1:50
  eight oh one, okay, And what the rule says in
• 1:54
  essence is that hearsay is an out of court statement
• 1:58
  offered for the truth of the matter asserted. Okay. So
• 2:01
  what we're talking about is this is a statement by
• 2:05
  an individual, typically who's not a party, and the individuals
• 2:09
  not brought into court, right so they don't come into court,
• 2:12
  they're not sworn, they're not testifying in the courtroom, and
• 2:16
  so the statement that they made out of court is
• 2:19
  attempted to be brought into court to prove whatever it
• 2:23
  is the truth of the matter asserted is so whatever
• 2:25
  it is that they said, it's offered for that truth, okay,
• 2:30
  and so that concept is hearsay. And so then trying
• 2:34
  to break it down and lay person terms, because again
• 2:37
  I know this can be very confusing, but think about
• 2:41
  various individuals who might have relevant information in a divorce
• 2:44
  or fami lawn matter. And it could really be anybody. Okay.
• 2:47
  It could be a police officer, could be a school teacher,
• 2:50
  could be a psychologist, It could be a psychiatrist. It
• 2:54
  could pete, third party witnesses like friends in relatives and
• 2:58
  neighbors and maybe coaches of kids athletic teams. It could
• 3:04
  be just about anybody, anybody who has information that could
• 3:07
  be relevant to the proceedings. Okay. So if these individuals
• 3:12
  know things, if they've heard things, and litigant thinks that
• 3:16
  what these individuals know or heard, or maybe they have
• 3:21
  an opinion in the case of an expert witness and
• 3:23
  they want to bring that into court. I mean generally speaking,
• 3:26
  those witnesses need to come into court and they need
• 3:29
  to testify, and they need to testify in terms of
• 3:33
  what they heard, what they saw, what their opinion is,
• 3:39
  and it needs to come out of their own mouths
• 3:41
  in the courtroom, and then the other attorney would have
• 3:45
  an opportunity to cross examine them on whatever their testimony is. Okay,
• 3:49
  So if individuals have information, those individuals for there to
• 3:55
  be a chance of it coming in have to come
• 3:58
  into the courtroom. Can't happen is that these individuals don't
• 4:03
  come into the courtroom, but then somebody else testifies about
• 4:06
  what they said, about what these individuals' opinions are, what
• 4:10
  these individuals heard, so on and so forth. I mean,
• 4:13
  that's hearsay. That's somebody testifying about what somebody else said
• 4:16
  outside of court and they're trying to bring it into
• 4:19
  court for the truth of the matter asserted. And in
• 4:22
  a general sense, if an attorney of jacks in the
• 4:26
  courtroom and says objection, hearsay, I mean generally this stuff
• 4:30
  wouldn't come in if these witnesses aren't brought into the courtroom. Now, look,
• 4:34
  there can be exceptions, and these exceptions again can be
• 4:39
  a whole semester course and evidence in law school and
• 4:42
  can be very confusing and very much in the weeds.
• 4:46
  But there can be exceptions to these rules. So this
• 4:50
  hearsay rule isn't absolute, okay, So there's some sort of
• 4:54
  unusual exceptions. If you will, like somebody who made a present,
• 4:59
  say it's impression or an excited utterance. So comments made
• 5:04
  in the moment of excitement. There could be what's called
• 5:08
  dying declaration. Somebody says something and they're on their deathbed
• 5:13
  existing emotional physical conditions could be an exception. Okay. There
• 5:17
  can be other exceptions as well, like admission of a
• 5:20
  party opponent for example. Again, numerous exceptions, but in a
• 5:26
  general sense, if the witnesses aren't brought into court, then
• 5:29
  others can't come in and say why talk to Bob
• 5:32
  ors who or Sally outside of court and here's what
• 5:35
  they said to me. I mean, typically a good attorney
• 5:37
  is going to object and say objection hearsay. In the
• 5:41
  context of a divorce, for example, you know, husband can
• 5:46
  come into court theoretically, or wife can come into court,
• 5:48
  but if they start testifying what other people told them
• 5:53
  about X, Y or z, I mean, you really name
• 5:55
  the issue. I mean generally, if an attorney Objackson says hearsay,
• 6:00
  that would be a sustained objection and the individual wouldn't
• 6:04
  be able to testify to that unless that actual person
• 6:09
  was brought into the courtroom to testify themselves. Okay, So
• 6:13
  better practice is to bring witnesses into court to testify
• 6:19
  versus having somebody else trying to testify in court what
• 6:23
  this person said, whether they or not even in the courtroom. Again,
• 6:26
  that is hearsay. It's almost never going to come in
• 6:30
  if an attorney's on their toes and objecting based on hearsay. Okay,
• 6:36
  But you know, even saying that, even if a witness
• 6:38
  comes into court to testify, there's got to be a
• 6:41
  proper foundation for what it is they're going to testify about.
• 6:45
  It's got to be relevant to the to the proceedings,
• 6:49
  to the divorce or FAMI law matter in some way.
• 6:52
  If it's an expert, then they've got to lay the
• 6:56
  foundation that they're an expert in order to give an opinion.
• 6:59
  You know. So there's still other objections that can be
• 7:01
  raised even if these individuals come into court. I mean,
• 7:05
  maybe the testimony, you know, was barred by emotion and elimonae,
• 7:09
  like a court order in advance that that indicated that
• 7:13
  this testimony is not to come in, it's not relevant,
• 7:15
  or it's barred for whatever reason. But Again, the general
• 7:21
  rule is if a witness has information, that witness needs
• 7:24
  to come into court. I mean, that's the best practice,
• 7:27
  you know. If that's not possible, you know, another option
• 7:30
  would be to try to take these witnesses deposition and
• 7:33
  then try to use the deposition in court, like try
• 7:35
  to admit it somehow. Sometimes that can work. Depositions can
• 7:41
  be through a transcript, through a court report, or takes
• 7:43
  a transcript of it. Some depositions highly uncommon in divorce
• 7:48
  and famine law litigation, more common and personal injury litigation.
• 7:53
  But sometimes depositions can be done by video as well,
• 7:57
  So there's a you know, a video deposition and if
• 8:00
  you will, and then that deposition and a personal injury
• 8:03
  case could be played to the jury. Family law again
• 8:07
  highly uncommon, but I guess not impossible. And then some
• 8:11
  other information on this topic is the concept of records
• 8:15
  in hearsay. Right, So oftentimes in divorce or family law litigation,
• 8:19
  individuals want to submit records, okay, And these records could
• 8:24
  be all kinds of records. It could be school records,
• 8:26
  it could be medical records, could be business records, banking,
• 8:30
  credit card, mortgage or other written records. Okay, Oftentimes what
• 8:37
  is contained in these records is hearsay, right. It could
• 8:40
  be information and statements made by other individuals who are
• 8:44
  not in court to testify. So be careful. If the
• 8:49
  idea is that I'm going to just bring in these
• 8:51
  records into court and they're going to come into court
• 8:53
  and they're going to be admitted, those can be subject
• 8:57
  to hearsay objection as well. Now, the way around it.
• 9:01
  In a lot of litigations, you get what's called a
• 9:03
  business records aff at David from the custodian of records
• 9:07
  of whatever the business is. And then if the records
• 9:10
  are provided to all the attorneys of record in advance
• 9:14
  within a particular number of days, and that's going to
• 9:16
  vary based on state, then oftentimes these records then can
• 9:20
  come in. Although that said, savvy lawyers sometimes still object
• 9:25
  to certain portions of business records. I mean they might
• 9:28
  concede like okay, this paste up is correct, or okay,
• 9:31
  this mortgage statement is correct. But when you get into
• 9:34
  things like police reports or medical records, if there's like
• 9:38
  opinion based stuff in these records, and a savvy lawyer
• 9:42
  may still object that those statements, those opinions, you know,
• 9:46
  those things recorded, and the records weren't necessarily the normal
• 9:50
  course of business, but that they're hearsay, and so it's
• 9:54
  still possible for a lawyer to be able to exclude
• 9:57
  certain portions of business records that are really odd the
• 10:01
  scope of being in the ordinary course of business, and
• 10:05
  so that can be very thorny as well. All Right,
• 10:07
  So here's say a very important topic again, very confusing
• 10:11
  in the weeds for a lot of individuals. You know,
• 10:14
  lots of individuals think they can come into court and
• 10:16
  testify about what other people said and it's not a problem,
• 10:19
  and then they hear the hearsay objection and they get
• 10:21
  totally tripped up on it. And so I think it's
• 10:24
  this is an important topic and one individuals need to
• 10:27
  know about, and it allows, you know, a lawyer to
• 10:30
  better gain plan in terms of how to present the
• 10:32
  case and in terms of who to bring into court
• 10:35
  and whatnot. To make sure that you know, an individuals
• 10:42
  not in the middle of a trial and I think
• 10:43
  they're going to be able to present something or testify
• 10:46
  to something in court. And I think it's very important.
• 10:48
  And now lo and behold, the hearsay objection is sustained.
• 10:50
  And they can't get it in right, So it's better
• 10:53
  to think long and hard about hearsay in advance and
• 10:56
  and go through it with a lawyer who's licensing competent
• 11:00
  to practice law on your jurisdiction and again hopefully a
• 11:02
  lawyer you've hired and retained for your case, and to
• 11:05
  go through hearsay in potential evidence and make sure that
• 11:09
  there's a good game plan in terms of how to
• 11:11
  get stuff in at trial. All right, So again that's
• 11:14
  the topic today. The topic is about Here's Saying divorce
• 11:17
  and FAMI law litigation. As a follow up to the
• 11:19
  episode today, go on over to Familowheadquarters dot com read
• 11:23
  the article titled what is here Saying Divorce and Family
• 11:26
  law Matters. That'll give you more information on this topic.
• 11:29
  But thanks for tuning in today and stay tuned to
• 11:31
  our next episode of famal Law Talk coming up. Thank
• 11:33
  you very much.
• 11:35
  Speaker 1: Thank you for listening to Family Law Talk with Kirk Stangy.
• 11:39
  Is it Stangy Lawfirm dot com for more about today's
• 11:42
  topic or to put Stangy Lawfirm to work for your
• 11:45
  family today. The choice of a lawyer is an important
• 11:48
  decision and should not be based solely on advertisements either
• 11:51
  the Supreme Court of Missouri or Illinois reviews, or approved
• 11:54
  certifying organizations or specialist designations. The information you obtained in
• 11:58
  this podcast is not, nor is it intended to be,
• 12:01
  legal advice. You should consult an attorney for advice regarding
• 12:04
  your individual situation. We invite you to contact us and
• 12:07
  welcome your calls, letters, and electronic mail. Contacting us does
• 12:11
  not create an attorney client relationship. Please do not send
• 12:14
  any confidential information to us until such time as an
• 12:17
  attorney client relationship has been established. As the results afford
• 12:21
  no guarantee of future results. In every case is different
• 12:23
  and must be judged on its own merits. Kirkstangy is
• 12:26
  responsible for the content Headquarters Office one twenty South Central Avenue,
• 12:30
  Sweet four fifty, Clayton, Missouri, sixty three one oh five.
• 12:33
  Kirk Stangy is licensed in Missouri, Illinois, and Kansas