Documentary evidence can be divided into two general categories, much like opinion testimony can. There are “lay opinions,” which are opinions which are based on observation and which anyone can make without special training, and there are “expert opinions,” which are opinions that can only be made by individuals with special training (“experts”).
In much the same way there are documents and other evidence which are presented to prove facts and which do not require interpretation (e.g., a bank statement which is offered to prove how much money was in an account on the Date of Separation), and there are documents which an expert relies upon to support his or her expert opinion.
With either type of physical evidence, in order to prepare your case for trial (or a convincing settlement letter), you have three broad tasks:
- Determine what physical evidence you need, and once you know
- get the evidence, and
- make sure its admissible, i.e., that the court will consider it as evidence.
Figuring out what you need: general facts. First compile evidence that goes to prove general facts that you need to establish and for which you don’t need an expert (e.g., a Date of Separation bank statement).
What an expert needs.
If you need to use an expert, then it is vital to establish as early as possible
- exactly what the expert is going to testify to; and then
- exactly what she needs to support that testimony.
If you can’t procure it yourself, then you will have to rely on “Discovery,” which are a series of legal tools which require your spouse or a third party to produce answers to questions, documents, etc.
Discovery is a subject we will address in other blog posts. For this discussion, all you need to know is you can try to gather documents from
- Your spouse’s Declaration of Disclosure – Each spouse is required to serve on the other a document laying out their positions on what is community and separate property, and their positions on values of assets and debts.
- Documents your spouse produces voluntarily.
- Documents produced by discovery demands you serve on your spouse and on third parties.
Will the court consider it?
Generally, the court will consider evidence if it is relevant (it tends to prove or disprove something), if its authentic, and, regarding written evidence or other statements made out of court, it is the kind of written evidence where the original speaker or writer doesn’t have to show up and testify (i.e., there is an exception to what is known at the “hearsay rule”).
Relevancy won’t be an issue if either: the evidence proves something on its face or your expert says she needed it to render an opinion.
Check out the continuation of this blog in the following post, Divorce Trial Evidence: Authenticity and Hearsay. At Divorce Helpline, we have 25 years of experience coaching clients in navigating the tricky waters of trial preparation.