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9 Steps to Getting Business Records into Evidence

steps_78288477You know you can get business records into evidence under an exception to the hearsay rule, but you’re not exactly sure how to do it. It’s simply a mechanical process—just get your witness on the stand and follow these nine steps.

1. Use questioning to set up the exhibit. For example, “What actions, if any, did you take to contact Mr. Jones on your concerns with the timing of the shipment that he was sending to you?

2. Hand opposing counsel and the judge copies of the exhibit.

3. Briefly describe the exhibit on the record. When an exhibit is first handled, you should state, for example, “Your Honor, I would ask that this document be marked as Plaintiff’s Exhibit 1 for purposes of identification. It’s an October 7, 2015 email from the plaintiff to Mr. Jones.

4. Provide the court clerk with the document and keep a copy of it for your own use. The clerk will return the marked exhibit to you.

5. Request permission from the court to approach the witness with the exhibit.

6. Show the exhibit to the witness and give him or her an opportunity to review it.

7. Question the witness about the exhibit. For example,

  • Have you ever seen this document before?
  • Please describe to the Court what this document is?
  • Why did you prepare this email to Mr. Jones?
  • Who is responsible at your company for preparing emails to suppliers?
  • Did you have this responsibility at the time you prepared this email to Mr. Jones?
  • Is there a procedure that you follow in preparing communications such as Exhibit 1?
  • Please describe for the Court what that procedure is.
  • Did you follow that procedure with respect to the preparation of this email to Mr. Jones?
  • After you prepared this email to Mr. Jones, what did you do with it?
  • Has this email been altered or modified in any way since the day that you prepared it and sent it to Mr. Jones?

8. Request that the exhibit be admitted into evidence. For example, “Your Honor, I would request that Plaintiff’s Exhibit 1 be admitted into evidence.”

9. Disclose the substance of the exhibit to the jury. For example, use an enlargement of the exhibit or projecting it on a screen.

For guidance on every aspects of admitting business records, including electronic information and images, turn to CEB’s Effective Introduction of Evidence in California, chap 13. And check out CEB’s program Evidence: The Procedure of Introducing Exhibits at Trial, available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

7 replies on “9 Steps to Getting Business Records into Evidence”

I give CLE talks about the business records exception. The mechanics of introducing the exhibit are fine but key to admissability is laying a proper foundation through your witness as to each of the four elements of Evidence Code 1271. That is,

(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act,
condition, or event;
(c) The custodian or other qualified witness testifies to its
identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation
were such as to indicate its trustworthiness.

You can do this through a single witness as long as they can show the court that they have the experience and knowledge of this business and/or industry that they would know what this document is and how it was created.

Where so many practitioners run into trouble is that they bring in a witness who admits under cross-examination that he/she doesn’t really know how the document was created. For example, if you’re a debt collector trying to introduce records of a bank that assigned the debt to your collection firm, it’s fatal if your witness says “well, I know how my own firm’s records were created, but I don’t know exactly how the original bank created this record”. On the other hand, you can have a debt collector witness lay a foundation for the bank’s record by saying something like “I have worked in the banking industry for 10 years. I know how banks like this create and maintain these records [and then provide some detail].

You want to wargame out potential cross-examination points and have your witness ready for them. CEB’s California Trial Objections has a great section with updated caselaw that will give you multiple examples of what is and is not a proper foundation.

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