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By: Jamie Collins
Greetings, Paralegal Nation! We hope you’re bright eyed and brimming with enthusiasm on this fine Monday. Perhaps you saw this article published in National Paralegal Reporter a few months back, but we’re reposting it today with purpose. Here’s the thing, the federal rules may be bo-ring (they truly are), but they are fundamentally important for us, as smart and savvy paralegals! Whether this is your first pass through this article or your second, take a deep breath, take a big drink of that fabulous beverage sitting desk-side (from the fountain of sanity), read this article, remember it, print it, and save it somewhere in your paralegal binder for that next, big, pivotal moment when you can further impress your esquire with your incredibly vast knowledge of those bo-ring, but uber important rules! You sure won’t be sighing then…
Reprinted by permission from The National Federation of Paralegal Associations, Inc., www.paralegals.org.
Let me tell you about a scenario no paralegal wants to watch unfold. Your firm is in the midst of a big jury trial. You find yourself seated at counsel’s table, so you can readily assist throughout the trial. Your attorney is admitting a key exhibit which consists of documents to support your client’s claim…and then it happens. Opposing counsel raises a lofty objection regarding the authenticity or admissibility of those documents; the essential ones that you spent weeks of your life compiling. Unfortunately, you failed to properly navigate the authenticity minefield when compiling those exhibits, and as a result of your less than stellar preparation, your attorney is caught completely off guard, as he fumbles and attempts to verbally extricate himself from a rather awkward and unpleasant situation. As this “shock and awe” ambush transpires in the courtroom the judge, jury, opposing attorney, and folks seated in the peanut gallery watch as your attorney turns his body to face your general direction and issues the laser beam, soul penetrating death stare at y-o-u. In that moment, you wish you could slink down underneath the table to disappear into a secret trap door beneath the courthouse to a land far, far away. If this trial scenario sounds like a paralegal’s worst nightmare to you — that makes two of us.
With the above scenario being a possibility for any paralegal — why aren’t we 100% prepared? Perhaps it’s because research periodicals and trial rule books can be dull, dry, drab and boring…very boring. While these are essential resources, to sit down and actually read them induces an immediate onset of boredom deficit disorder for most of us. While the Federal Rules of Evidence may be boring (and trust me — they are), they are fundamentally important for us, as paralegals. There are steps you can take when gathering records to insure that you never need that secret trap door. Let’s jump right in!
The first rule you should familiarize yourself with is Rule 803, which deal with “hearsay exceptions.” Categories listed under Rule 803 are not excluded by the hearsay rule. Typically, a witness must authenticate each exhibit introduced at trial. However, if you have a document that complies with Rule 803, you may not need to call a witness to authenticate it. Let’s delve into Rule 803 a bit deeper.
Rule 803(6): Records of regularly conducted activity. This includes documents such as “a memorandum, report, record or data compilation in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course a regularly conducted business activity…” Therefore, if you ever request records and/or documents that fall under this category, you need to insure that they are properly certified. To obtain a certified copy typically costs a little extra money (around $25.00 in my experience), but it is money well spent if there is any possibility the case may proceed to trial. If you fail to obtain certified records and/or documents and your attorney is ambushed at trial, a records custodian will need to be called as a witness to authenticate those records. Likewise, if your attorney cannot get the opposing attorney to stipulate as to the authenticity of the exhibits you intend to introduce, you will need to call a records custodian or jump hoops to obtain certified copies quickly. My advice? Request certified records/documents each and every time and pay the nominal fee, especially if your firm frequently ends up in trial.
Rule 803(7): Absence of entry in records kept in accordance with the provisions of paragraph (6). If you wanted to introduce evidence that a matter is not included in the record, you could use Rule 803(6), to prove the nonoccurrence or nonexistence on a matter, so long as it was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. For example, if your attorney wanted to indicate that a particular chart entry or memo did not exist, he could utilize this rule to avoid calling a witness to authenticate the fact that a particular memo, record, etc., was missing from an exhibit that falls under this subsection.
Rule 803(8): Public records and reports. This subsection includes “records, reports, statements or data compilations in any form, of public offices or agencies, which sets forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report…” This excludes matters observed by police officers and other law enforcement personnel in criminal cases or in civil cases against the government.
I once had an attorney tell me that he needed to get a CDL manual admitted into evidence at an upcoming trial, but he didn’t know how to get it in. I was planning to write an article on this particular topic, so I went to my office, quickly reviewed the federal rules, walked straight back into his office and told him that we could admit the CDL manual pursuant to Federal Rule of Evidence 803(8). Was I correct? Absolutely! It felt fantastic to offer substantive advice to my supervising attorney regarding the Federal Rules of Evidence. It was one a prime example of paralegal knowledge meeting opportunity.
Rule 803(9): Records of vital statistics. If you need to get a birth, marriage or death certificate into trial – look at this rule.
There are many other subparts contained under Rule 803. We have just covered the basics. I implore you to take a look at all of the subparts set forth under Rule 803, so you will be prepared to tackle any evidentiary issues that come your way.
Rule 901(a)(b): Requirements of Authentication and Identification. Next, we’ll take a look at Rule 901. This rule deals with “Requirement of Authentication and Identification.” You thought we were done with authentication, didn’t you? We’re just getting started.
Basically, under Rule 901(a)(b), a witness with knowledge may state that a document is what it comports to be. Thisrule also sets forth the authentication of distinctive characteristics, handwriting, voice identification, telephone conversations, public records or reports, ancient documents (20+ years old) or data compilations, processes, systems and methods approved by statute or rule. If you have a tape recording, handwriting or an ancient document, you’ll sure wish you knew this rule!
Rule 902: Self-authentication. This federal rule states that certain categories of documents do not require “extrinsic evidence of authenticity as a condition precedent to admissibility.” The following categories of documents are included:
(1) Domestic public documents under seal;
(2) Domestic public documents not under seal;
(3) Foreign public documents;
(4) Certified copies of public records;
(5) Official publications;
(6) Newspapers and periodicals;
(7) Trade inscriptions and the like;
(8) Acknowledged documents;
(9) Commercial paper and related documents;
(10) Presumptions under Acts of Congress;
(11) Certified domestic records of regularly conducted activity; and
(12) Certified foreign records of regularly conducted activity.
Whether a public, business or foreign record you need to obtain an appropriate affidavit from the custodian of the record (or other qualified individual) verifying the following information under oath:
- The duplicate of the record is a true, accurate and complete copy of the original;
- The record is prepared as part of a regularly conducted activity of the business or governmental entity in a manner complying with legal authority granted to them by state, federal or foreign law,
- They must certify that the record :
(A) was 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) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
You must also provide written notice of your intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge or otherwise object to the records admission without a witness. Make sure you review your own state’s requirements, as these provisions can differ from jurisdiction to jurisdiction.
Remember, authentication proves that a document is what you say it is and that it hasn’t been altered or tampered with. That is the value of the certification. If you fail to obtain proper certification, you will have to bring in a witness to do precisely what the certification would have avoided.
Be sure to preserve the integrity of any certified records or documents you obtain. You should never take apart or deface certified records. If the number count is off or they are out of order, you will have destroyed their authenticity. Therefore, do not write on, highlight or disassemble certified records. If you need to reorganize or highlight them, make a working copy. Next, we’ll talk about the 1,000 Rules.
The 1,000 Rules. The Rules numbered in the 1,000’s deal primarily with originals, duplicates, public records and summaries. Considering we typically make duplicates and summaries for trial purposes, these are pretty important rules for us to know. We’ll take a look at each category individually.
Rule 1001: Definitions. This Rule deals primarily with copies of documents and summaries, including writings, recordings, photographs, originals and duplicates. This rule clearly defines each of these categories.
Rule 1002: Requirement of Original. “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 Act of Congress.” In other words, if you are going to produce a “copy” of something, you may need to also provide proof as to the original of that item.
Rule 1003: Admissibility of Duplicates. In essence, this rule states that duplicates are admissible to the same extent as the original unless “(1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”
Rule 1005: Public Records. Under this rule, you may introduce copies of an official record or a recorded or filed document or data compilation via a copy, “certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original.” This means that you, as a paralegal, may be called as a witness to authenticate the copy of a document, if you saw the original of that document.
Rule 1006: Summaries. If your attorney plans to introduce a summary from a voluminous writing, recording or photograph which “cannot conveniently be examined in court,” you may present a summary of that information via a chart, summary or calculation. You will need to insure that the originals or duplicates from which the chart, summary or calculation is made are available for examination or copying by the other party. The court may also request that you produce them in trial, so be sure to maintain the original.
While it is your job to collect key documents for trial, collection alone is not enough. You must also concern yourself with authenticity for trial purposes at the time of collection. Authenticity is essential for purposes of admissibility at trial. You should always request certified copies to the extent they are available. Certified = Authenticated.
If you familiarize yourself with the Federal Rules of Evidence, you will possess the knowledge needed to steer clear of any potential pitfalls regarding authentication. The rules may be dull, drab, dry and boring, but face it; they are essential. Plus, as an added bonus, they could launch you into paralegal stardom in the eyes of your attorney! So, grab a can of Red Bull or a cup of coffee, along with a copy of the infamous Federal Rules of Evidence and dive right in, my fellow paralegals. Glory awaits…
(I think that image above is either of me writing this one or you reading it! ha ha.)
Note: We still have a few more Honorable Mentions to run from our writing contest, but didn’t want your brain to turn to mush from reading solely about mentorship on our previously “major” Mondays, so we decided to up the game! We’ll be mixing our last few honorable mentions in with our regular posts here and there, so be sure to watch for ’em.
Till next time, keep it real, paralegals, and don’t forget to clean your desk…and slay the dragon! See you soon!