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Deposing a Business Records Keeper

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Objections 101

Objections – what they are and how they work

The way you protect yourself in trial from evidence that could hurt you is to object. This video discusses how that all works.

When lawsuits are tried, they are normally decided by the evidence much more than any argument. That means that you want to control what gets seen and considered by the judge or jury. At the same time, the “flow” of the action can make a difference, and so there are times a party might not want to slow things down or stop them even if what is getting said isn’t necessarily within the rules. Therefore, the courts let you waive your objections.

To put that a little differently, if you do not make an objection, a judge will normally treat your silence as a decision not to object, as a “waiver” of the right to object. An objection is the way you let the court know you want it to follow the rules of evidence.

In debt law, there is almost never any reason to waive an objection. Your case will probably be determined on the basis of a few documents, and whether those documents come into evidence will almost always depend on whether you object to them. Therefore, learn the two most important rules of evidence for debt law: the rule against hearsay evidence, and the business records exception to the rule against hearsay. Learn how to object, and be ready to shoot down their attempt to use the business records exception.

You Must Object

You Must Object

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Rule against Hearsay Evidence

The Rule against Hearsay is as close to a silver bullet as you get in debt litigation. I’ve often said that debt collectors don’t have and can’t get (cost effectively) what they need to beat you. The rule against hearsay is the rule that lets you keep the records they do have out of evidence.

A Critical Definition

Hearsay is an out of court statement offered for the truth of whatever was said. That is, a statement that was made (or written, usually in debt cases) somewhere other than a courtroom, under oath.

For example, if you testified that “Mr. Smith said the dog was white,” this would be hearsay if you wanted the jury to believe the dog was white. That’s because in order to believe that, the jury would have to believe Mr. Smith – and he hasn’t testified under oath in the presence of the jury.

If you testified that “Mr. Smith said the dog was white” would not be hearsay if you wanted to prove that Mr. Smith could talk, though, because in that case the jury could evaluate your statement that he did talk and would not need to form a belief as to whether the statement was correct.

In debt collection cases, the debt collectors often seek to use affidavits or business records that say the debt was a certain amount, that certain procedures were followed, etc. But these are only helpful if you believe the records – and thus the records are hearsay. To keep the judge from allowing the records to count, you must object to their admission. And you will probably have to be prepared to argue they aren’t subject to the “business records exception.”