This one may fall into the “too obvious to mention” category, but sometimes people mention “hearsay” and call it “objectionable.” I want to make sure people know what “evidence” is. And to clarify when “evidence” matters. It’s pretty basic and might be obvious to some, but sometimes the most obvious things are the hardest to figure out because everyone assumes you already know them.
What is the evidence?
“Evidence” is something you use to try to prove a fact that makes a difference in your dispute. Your evidence should increase the likelihood of what you’re saying, you don’t have to cold-test it. Just make it a little more likely. And it must be “material”, meaning that the fact you are trying to prove must affair To the Case For example, the fact that a Florida beach is nice year-round probably won’t make a difference in a debt collection case, even if it’s good to know.
When do you need evidence?
You primarily need evidence in two situations: trial, and this includes trial in front of a judge, jury, arbitrator, or even mediator. I call it “the showdown”. It is where a decision maker will rule, or (in the case of mediation) a mediator will lean on you to voluntarily give something up. And you may need evidence for a “motion”. (A motion is a request to the court to do something and is also a kind of confrontation.)
Referees act as judges, although they tend to have less formal rules. Selections help you decide
to resolve. They guide the parties to some kind of compromise. However, evidence is very important in both cases, because what you can prove determines how willing you are to reveal something.
Motions can also be clashes
The main type of motion that uses evidence is called a “motion for summary judgment.” That is a motion that asks the court to take decisive action and enter a judgment that proves some or all of the facts before a jury. This article is not about summary judgments (a topic for another day), but in any event, while many motions are simply based on the pleadings (the petition they filed and their response), you need evidence for a motion for summary judgment.
Evidence on motions
And the rules of evidence for motions for summary judgment are the same as for court, for the most part. Evidence that would be hearsay at trial would be hearsay on motion and would not be allowed unless there is some kind of exception. Although I should mention that evidence of a motion is usually not live, it is documentary in some way. Or film a lot these days. While the evidence at trial will often be mostly living people testifying in person. Still, most of the rules are the same, and when you talk about rumours, that doesn’t mean just in court, at trial. It also means for any confrontational situation that requires evidence.
When does evidence count? And when should you object?
For evidence to be considered by a decision maker, it must be “admissible.” An “objection” means you don’t think it’s admissible. If the court decides that you are correct and the evidence is not admissible, it will “sustain” your objection. If the judge decides against you, he or she will “override” your objection.
At trial you will object by voice, preferably before the evidence is shown to the jury. In a motion, on the other hand, you also object, but of course the judge can see the evidence anyway. He or she is simply not supposed to consider it if it is not admissible. And if the judge finds it even though it’s not admissible, that could be a basis for appealing the sentence.