Chapter 5: Preparation For Trial

Preparation for Trial:

Assembling Your Case And Trial Material


“As a general rule the most successful man in life is the man who has the best information.” 

— Benjamin Disraeli 

“The person who goes farthest is generally the one who is willing to do and dare. The sure-thing boat never gets far from shore.” 

— Dale Carnegie 

He who works his land will have abundant food,
but he who chases fantasies lacks judgment.” 

— Proverbs 12:11 

This chapter will equip you to:


  •   Determine what you want the Court to do for you and how you want the Court to do it
  •   Learn how to determine what’s important and what’s not and then gather the important information
  •   Begin preparing your case in a step-by-step way following Court rules and procedures
  •   Understand the basics of the Rules of Evidence


As a  litigant you will likely walk into court with a number of disadvantages, any one of which can seriously undermine your claim and wind up costing you time, money and hours of frustration. Self-represented litigants are rookies without the benefit of trial experience or a law school education. They don’t have colleagues in the field to consult with or the ready resources of law firms. Where paid-attorneys can bill fifty or sixty hours a week preparing their cases for trial, more often than not you have a full-time job to tend to and your dalliances in the law are likely to be, at best an after-hours pursuit.

Additionally, you have the added prejudices of nearly the entire professional legal community to wrestle with – everyone from filing clerks and court reporters all the way up to his honor the judge – all of whom have probably endured disorganized, unprofessional self-represented claimants many times in their careers. Is it any wonder that they’ve learned to groan and roll their eyes? No doubt about it. As a pro se litigant you are out there walking the point alone.

All of which makes your pre-trial preparation all the more important. With all these things stacked against you, preparing your case thoroughly in advance – working through the points of law, assembling your evidence and preparing your witnesses – is the single most important step you can take to nudge your case over the finish line. In fact, it is better not to go to court at all than to go with a case that is ill prepared. If you have any doubts that you will have either the time or skills to prepare you would be better served delaying the action or handing matters off to a qualified attorney.

But on the backside, your advance investment in preparation will payoff in spades when you take your case to or sit across from your opponent at settlement talks and know that you are negotiating from a position of strength.

Identify Exactly What You Want The Court To Do

In most cases, you as the plaintiff will file a complaint seeking monetary compensation for whatever losses you feel you have suffered, but there are situations when you might ask the court to order a defendant to do something, such as having a dead tree removed that is threatening your property, or getting rid of a nuisance pet that barks incessantly at night.

This is your “prayer for relief,” in which you spell out the remedy that you want the court to grant. You need to take care to lay this and the rest of your complaint out in proper legal terms lest your case be discredited.

Your complaint will in most cases include a caption, the allegations and the prayer for relief. The caption is the heading of the complaint and it appears on all the pages. It details the name of the court of venue, the case number. It includes the names of all plaintiffs and defendants in the case and may include the judge’s name. The allegations section lays out in clear language what the defendant did or didn’t do that caused harm and details the extent of the harm caused.

“Your complaint must outline a set of facts that, taken together, constitute something that is actionable,” [1] Schachner writes. “Your complaint must contain enough facts and legal theory to clearly establish your legal right to redress.”

Prepare your complaint carefully. Verify all of the facts and statements in your complaint. Remember that it is a legal document and can be used against you if your allegations or supporting facts fail to prove true. Here is a list of frequently encountered errors that can become pitfalls if not corrected before the complaint is filed:

  •   Omitting or improperly listing all parties
  •   Failure to include the exact name of all parties
  •   Failing to name the right court in filings
  •   Filing claims using improper forms / format
  •   Mistaken jurisdiction, venue
  •   Exaggerated or otherwise unsupported damage claims
  •   Failing to include appropriate allegations and background facts
  •   Improperly filed “prayer for relief”
  •   Expired statute of limitations
  •   Omitting required court attachments

Judge Or Jury?

Very early on in this process you will probably have to choose whether you want a jury trial or a judge to decide your case. Many states take away the option for cases involving child custody and child support, traffic violations and cases in which you’re not seeking monetary damages, requiring that these disputes be decided by bench trials.

But all things being equal, which one should you choose, is there an advantage one has over the other?

In my nearly thirty-years on the bench, I have seen only a handful of cases in which I thought a pro se would’ve been better served by a jury, but I realize that as a former Maryland Circuit Court judge, some may regard my opinion as less than entirely objective on the issue., so let me explain myself.

It is generally more difficult to get the courtroom protocol right in a jury trial, which makes it harder for the pro se to present the case. The judge does not feel he can be as relaxed with the rules in a jury trial out of fear that the pro se would gain some advantage in the jury’s eye. Whereas, in a bench trial the judge can be more free to loosen the rules a little, because he knows he himself won’t be prejudiced.

Additionally, there are some solid practical reasons to opt for a bench trial. As the Web-based legal resource Nolo writes, the pro se, “is almost always better off trying [his or her] case before a judge than a jury. By not going before a jury [the pro se] does not have to worry about … depositing jury fees with the court or, preparing jury instruction.” [2]

I would add that the process of jury selection and simply timing your request for a jury within the proper court approved window are two additional pitfalls the pro se can avoid by opting for a bench trial.

If you do select a jury – or have one thrust upon you at the request of your opponent, entirely within his rights – keep in mind that jurors are usually not as adept as a judge would be at ignoring improperly obtained or otherwise inadmissible evidence. And remember the law of scarcity, jurors have a tougher time disregarding testimony under objection and discerning the merits of different types of evidence.

Conventional legal thinking has it that bench trials are better for cases based on technical legal issues where jury trials might be better for more emotionally compelling cases. Whether judge or jury is selected, a good rule to keep in mind is that in a jury trial the jurors decide the merits of the facts, while the judge decides the law. In a bench trial the judge decides both the merit of the facts and the applicable law.

Maintaining Momentum

Shortsightedness is a mistake common to pro se litigants. It is easy to become lost in the back and forth of trial preparations and discovery, depositions and interrogatories. Even experienced lawyers manage to run afoul of court deadlines and cough up the momentum, trying to play catch up late in the game as the day of trial approaches. For the pro se, it’s almost expected.

And make no mistake about your opponent. He or she will certainly angle and maneuver –especially if your opponent has a lawyer – to delay, discourage and otherwise sidetrack your efforts. Why not? It makes good tactical sense to dictate these terms to the opposition. At the very least he can force you to operate on his terms at his pace and if you are unable to properly prepare your case for trial, the better for him, right? And at best, there’s always the chance you’ll just give up, become discouraged with the expense and delay and walk away, or meet his terms for settlement.

Watch out for delaying tactics and drive around or through them quickly. Be aggressive. Expect that your opponent will check every attachment, enclosure, and inclusion for accuracy and that he or she will challenge everything from whether the statute of limitations has expired to whether your process server delivered the complaint and attachments correctly. There will likely be motions to deal with and possible counterclaims; don’t let them sidetrack you.

Don’t sidetrack yourself either. Use the discovery phase to mine every promising vein for information to advance your cause, but keep your questions sharp and specific. Sharp, well-formed inquiries require thought and preparation, but will yield more substantive answers and won’t cause you to bog down as easily.

Think about it…

How do you defend against a countercharge by your opponent that your case is frivolous, malicious and intended to harass or otherwise “abuse the process?” Here’s how. File a statement of “evidentiary support” drawing on the knowledge and expertise of a professional to basically acknowledge your injuries and its approximate causes and agreeing that in his or her professional opinion, you damages were caused by your opponent.

One method to help manage the pace of your case and dictate the initiative to your opponent is to start with a case outline and timeline that becomes part of your trial notebook.

  1. Type of case:
  2. Contact and background information:  

Opposing parties and lawyers




  1. Case Objectives: 

Rationale – why pursue the case?

How will I know if I have won?

              What are the damages, judgments, I am seeking?

              Is there room for settlement, arbitration?

What are the main themes of the case?

What is my overall strategy?

What information do I need and how do I get it?

  1. Legal issues: 

What factual allegations are necessary to properly state my case?

What evidence is needed to support those allegations?

              Who are the witnesses that can establish these facts?

              What are the records and other evidence I need.

  1. Time frame issues: 

What are the statute of limitations issues pertaining to my case?

              When did the clock start ticking?

What deadlines or time constraints relate to key witnesses or evidence?

  1. Other issues: 

What will my opponents claim in the course of their defense?

              Will they counterclaim?

Are there any third parties who have liabilities?

What are the anticipated expenses I will face?

              Court costs

              Filing fees

              Service fees


After working through these items you are ready to begin constructing your plan of action and trial book. This outline can safely be called the beginning of your preparations for trial and will assist you as you proceed through the rest of the necessary pre-trial phases.


As you prepare your complaint and supporting material remember why you are taking your case to court in the first place. It’s not about winning some complicated legal argument. No one cares about your moral victory in court. Beyond winning and losing the points of law, beyond preparing a persuasive case with witness testimony and hosts of evidence, your case is first and foremost about your desire to have a wrong’s losses compensated and made right.

Short of a custodial case or an affirmative order from the judge against your opponent – requiring him or her to take some action or cease taking actions – the court will most likely attempt to right a wrong suffered with some form of a monetary judgment.

The legal term for this judgment is damages and a good definition of damages is “recompense, reparation or satisfaction in money, given in order to make good for a loss or injury sustained.”

Damages can only be caused where recognized rights to property and personal freedoms, and those enumerated in a contract – have been injured. The law is less concerned with an individual’s personal sense of violation than it is with the actual or potential material damages when such a trespass occurs. So, in a libel case for example, you can collect damages based on the financial value of injuries to your good name and reputation, but the court will not give you money for your hurt feelings.

Schachner puts is this way: “The law of damages is a matter of rights. These rights are enforceable against particular persons when a contract exists, and against all the world when the matter concerns property or personal rights (in the case of negligent actions where someone’s rights are invaded).” [3]

Contrary to the expectations of many pro se litigants, damage awards are very well defined and not the pie-in-the-sky windfalls that media headlines love to sensationalize. The law provides that damages be commensurate with the injury suffered. In the event that injuries cause no appreciable loss the court will assign no damages. Still, most courts will generally assume that damages have occurred and accompany a right violated or an injury suffered.

Damages are generally broken into three categories: compensatory, punitive and nominal damages.

Compensatory damages: As the name implies, these damages are awarded to compensate the plaintiff for losses sustained due to the defendant’s actions as outlined in the complaint. Medical bills, costs of repairs, lost wages and income and increased living expenses resulting from injuries – sometimes called pecuniary damages – are easily calculated components of compensatory damages. Non-pecuniary damages are less easily calculated and may incorporate pain and suffering, mental anguish or other debilitating impairment not easily measured in monetary terms.

Contracts frequently stipulate the extent of allowable damage claims. For instance, home sales contracts often limit damage claims to the amount of funds held in escrow in situations when sales fall though. And frequently, statutes also govern or modify the allowable extent of damages for injuries covered by that particular law. Trademark and copyright law, banking law, employment fairness regulations – all of these areas are governed by statutes that stipulate allowable damage claim.

Additionally, before the actual amount of a compensatory damage award is calculated, the court may consider the following to determine fair and commensurate relief for an injury:

Actual losses incurred

Interest lost

Expected gains prevented

The value of the use of the thing

Difference between actual and contract value

Difference between the thing as it is and the thing under a valid warranty

Punitive damages: Also known as exemplary damages, punitive damages are awards to the plaintiff intended to punish the defendant, often for particularly outrageous behavior. Punitive damages also serve to warn others against similar actions. They are typically awarded in cases where the defendant has acted in a malicious, wanton, reckless or otherwise callously indifferent manner.

Punitive damage awards – particularly high-profile jury decisions – are rare and unpredictable and often the headline grabbing cases that insurance companies hate the most. They are like judicial black holes, limitless and crushing in their deterring influence. They also exert their own gravitational pull across the legal marketplace, driving plaintiffs to settle cases they might otherwise win, but can’t afford to risk litigating. Business decision makers are notoriously risk-averse and often focus on minimizing exposure to worst-case scenarios.

But in recent rulings the Supreme Court is signaling a willingness to reverse some of the most egregious awards. In April 2003, the high court struck down a $145 million punitive judgment against a large insurance company saying in its ruling that the original judgment, awarded by a jury and reinstated by the Utah Supreme Court after being struck by the trial court, was “neither reasonable, nor proportionate to the wrong committed, and … was an irrational and arbitrary deprivation of property of the [corporate] defendant. … To the extent an award is grossly excessive, it serves no legitimate purpose and constitutes an arbitrary deprivation of property.” [4]

Nominal damages: A small sum awarded to the plaintiff, perhaps to signal that the court recognizes the wrongful actions or inactions by the defendant, when no actual injuries occurred or are unproven. In cases where the plaintiff is unable to demonstrate losses, but where the court finds that the defendant clearly breached his obligation or invaded the plaintiff’s rights, the court will award nominal damages.

Nominal damages are frequently awarded in pro se cases because inept litigants are unable to establish their losses and entitlement to relief.

Calculated damages are included in the complaint and prayer for relief. It is best to work through your request starting with pecuniary damages and moving to pain and suffering and other non-pecuniary injuries after. The court generally decides the type and amount of damages a pro se may recover as well as determining what if any extenuating factor should factor into its decision-making. The judge or jury may consider for example, whether the plaintiff could have avoided or otherwise mitigated the injuries caused by the defendant.

Establishing Your Legal Claim And Component Elements

Your complaint gets you a trial, but for your case to succeed you will need to present facts and witnesses to clearly establish the elements that entitle you to your claim.

Bergman and Berman-Barrett in their book “Represent Yourself In Court”  [5] (Nolo Press, 1998) use a handy device to illustrate this concept. They describe the legal claim as something akin to a beam of light passing through a prism. The light entering the prism is joined in a solid wave, but as it emerges, it is bent spectrally into its component hues and so it is with a legal claim. “What looks like a unitary legal claim based on negligence, breach of contract, breach of warranty or almost any other type of claim in fact consists of separate legal elements. To win a claim, you must prove each and every one of its elements at trial.”

In an automobile negligence claim for example, you might have four or more key elements to prove to clearly establish your claim. First, you will probably have to prove that the defendant had a duty to protect you from the danger his vehicle presents, then, that he violated that duty by operating his car at an unsafe speed. Then, you might have to establish that the defendant’s speeding is what caused him to fail to apply the brake in time to stop before his vehicle rear-ended yours’ at the traffic light. Finally, you will likely have to make it clear that his negligence directly resulted in costs to repair your car, medical bills lost time from work as well as other various fees and charges for you.

What if in the course of your recuperation, you became aware that the physician treating your fractured elbow improperly set the break and the resulting loss of circulation has brought about a condition known as Volkmann’s Contracture, in which the muscle mass of the forearm has decayed to an extent that you are left claw-handed.

In your medical malpractice claim against the doctor who mistreated you, the elements of your complaint would begin by establishing that the physician had a standard of care to meet, setting your broken elbow to allow for proper circulation. Then, you would clearly prove that he did not properly set your fracture according to established medical norms.

Next, you would want to prove causation – a legal term that simply means “that which produces the effect.” – using evidence and expert witness testimony to prove that the physician’s mistake directly caused your condition. Lastly, you would prove the damages you suffered because of your condition with medical bills and physical therapy estimates, estimates of pain and suffering damages, and any other costs past, present and future for your injuries.

Many smaller lawsuits involve breach of contract claims or negligence, but there are literally hundreds of other potential tort claims and the prospective litigant should also be aware that every state has its own rules on the specific elements required to prove your case. A few of the more commonplace types of claims – otherwise known as cause of action – include:



Breach of bond, contract, warranty

Conversion, theft of property

Defamation (libel and slander)

Divorce, dissolution of a marriage

Eviction, ejection from property

Fraud, misrepresentation

Mortgage foreclosure


Nuisance, public, private

Trespass, violating property or privacy rights

Usury, predatory lending

What do you assert as the cause of action for your complaint? You can write, in clear language, a sentence or two that establishes exactly what happened. Just bear in mind that a complaint charging a dog owner with “negligence” sounds better and more professional than a complaint that charges “the Smith mutt got loose and tore through our flower bed before attacking and killing our prize winning Rock roosters worth $1,500, each.” More importantly, it also serves to shield the cause of action against an early motion for summary judgment or motion to dismiss and other possible actions designed to capitalize on the lack of specificity in your complaint.

How do you exactly determine the elements for your complaint? This may actually be a more involved question than it seems at first. You can start by checking your state’s manual of standard jury instructions. These will help you understand the points of law that the judge will convey to the jurors before they retire to consider the case. The judge will go over the elements of the claim, as well as the burden of proof standard and may remind jurors as well of standards for considering evidence. Many states prepare model language for the judge to share with the jury, which essentially spells out the elements of various claims and causes of action.

Think about it…

Its is always a good idea to familiarize yourself with the sets of standard or model jury instructions for two reasons: 1) The standards remain whether the case is a jury trial or not and the judge will decide the claim based on whether the elements have been proven whether there is a jury to tell or not. 2) Erroneous jury instructions are some of the absolute best facts to have at hand on appeal to have a judgment overturned.

Another source to discover the component elements of your cause of action can be found in legal outlines, exhaustive exercises researched and written by law school students, many of them are readily available on the Web.

The key thing to keep forefront in your mind as you work through your trial preparations and your presentation before the judge or jury is that these your claim breaks down into elements, each of which must be proven in order for you to win the case. It is not sufficient to simply state the claim as an allegation against your opponent or even to be aware of the elements of law that must be proven to support that claim. You have to present facts and testimony evidence to prove the elements that will eventually validate your claim. Understand?

This becomes tricky because these burdens have no real mathematical formulae or easy set of instructions to work through abstract and often subjective concepts. What are the legal limits of concepts like “Standard of Care,” “Reciprocal duties” and “Causation?”

Managing your facts and component elements before and during trial will help guide much of the rest of your thinking through the discovery phase, allowing you to know better whom to talk to and what to ask and what facts to find; and through possible settlement talks, as you negotiate from a position of strength, well-versed in the relative merits and weaknesses of your case. It will guide you at trial through your presentations and will certainly give you milestones to shoot for at closing as you draw attention to the elements making up your cause of action and remind the judge or jury of the facts supporting each of those elements.

Getting Your Facts Straight

Some of the facts you will need to prove the elements of your claim will become self-evident early on in your preparations. Others will have to be hunted down. A fact can be defined as something that occurred or exists and is incontrovertible. While a fact can never be untrue, in the legal system the word can represent something that is disagreed upon by two parties and at trial the judge or jury will ultimately decide whether a thing asserted is a true fact or not.

The most commonly used and helpful method of working through the facts and elements of your cause of action is to write them out in outline form. Again, this process should be undertaken early on, maybe even before your complaint is filed with the court, or shortly thereafter, because these materials will help drive your process of discovery.

Now back to our example. Suppose you are continuing to process the medical malpractice case we touched upon earlier, the doctor who incorrectly set your broken elbow and left you with a painful, disfiguring condition called Volkman’s Contracture. As you are researching the case, you’ve correctly assessed that your filing will be well inside the statute of limitations window and you feel you’ve determined for the most part what the damages should be and your almost ready to submit your complaint.

Then you discover as you’re looking over your notes one last time that the state of Massachusetts (where you’re filing your claim) has a statutory hurdle you had not noticed before. It seems the legislature approved the formation of a medical malpractice tribunal to screen cases and discourage frivolous claims. The tribunal, comprised of a doctor, a lawyer and a Superior Court judge, examine all incoming medical malpractice claims before a trial date is scheduled and have the power to decide if each case is strong enough on its evidence to proceed. Litigants can proceed anyway even if the tribunal finds against them, but that would require a $6,000 bond – which would be forfeited to your opponent if you should lose the case – and since you are proceeding pro se, it makes sense to get your facts and elements and cause of action together before you file. After researching your claim and its elements, you are ready to start outlining.

Medical Malpractice Claim Against Dr. Hezknot Realgood

Complaint:  (cause of action) The Defendant failed to repair my injuries and caused additional damage to me resulting in substantial disfigurement, pain and suffering, medical expenses and lost income.

Element 1.       I was owed a duty by the defendant, Dr. Realgood, a professional physician, to render medical care for my injuries.

              Fact:  I was directed to Dr. Realgood, licensed orthopedic physician, to repair elbow injuries I sustained in a traffic accident.

              Fact:  After X-Rays determined my elbow was broken, Dr. Realgood manually set the break for healing.

              Fact:  The defendant immobilized my elbow in a cast for a period of six (6) weeks.

Element 2.       The defendant breached his duty by not rendering his services with the degree of care and skill possessed by the average qualified professional practicing in his or her field.

              Fact:  After incorrectly “setting” my broken elbow, the defendant did not reexamine or re-X-ray the injuries.

Fact:  The defendant did not advise me of medically known early-warning signs of Volkman’s Contracture.

Element 3.  I suffered injuries and damages directly as the result of the defendant’s malpractice.

              Fact:  Two orthopedic physicians – expert witnesses – advised me that my condition could’ve been prevented.

              Fact:  These doctors also tell me my injuries are likely to be permanent.

              Fact:  With my elbow concealed and immobilized there was no way I could know or foresee the condition.

Element 4.       The damages that I have suffered lead me to petition the court in the amount of $114 million.

              Fact:  This circumstance has cost me $110,000 in direct medical expenses and fees.

              Fact:  My career as a major league pitcher is over. Over the course of 16-years, I would’ve earned some $38 million.

              Fact:  I am addicted to anti-depressants and painkillers. My annual pain and suffering costs come to $40,000.

              Fact:  Since Dr. Realgood has three other Volkman’s patients, he clearly has a history of flagrant disregard for his professional obligations. I petition for punitive damages of three times economic damages.

One thing this outline reveals is the potential for a third party injury claim. Do you see it? “I was directed to Dr. Realgood …” Who did the directing? Was it an HMO and did they perhaps have financial reasons beyond your best interests for sending your to Dr. Realgood? It is likely that the HMO has some significant level of exposure in this scenario and further information is needed to determine whether or not they can be named on the complaint too.

Once the facts are outlined you can proceed to the next step, detailing what evidence you will introduce to prove your facts.

The Basics Of Evidence

It is no satisfaction for a witness to say that he thinketh, or that he perswadeth himself about a matter…”

 —  Sir Edward Coke 


Evidence is the raw material of legal claims. With your evidence, arranged and presented correctly, you will assemble your facts, which will flesh out the elements of your cause of action and win the case for you. Simply stated, evidence is composed of witness testimony, exhibits rightly introduced and material previously stipulated to by the opponents. Remarks and statements by the advocates are not evidence, nor are their questions or objections.

Properly admissible evidence can be difficult to come by and will require painstaking care to assemble in all but the most basic of court cases. Probably the easiest kinds of facts you will come by as you prepare your case for trial are stipulations, which are essentially agreements between you and your opponent negotiated before trial that clarify some fact as true without the need to establish it formally with witnesses and so forth. They are time and cost savers and, helping to quickly establish uncontested facts early on.

There are four main types of evidence, which most jurisdictions recognize and treat similarly. Some rules of evidence apply to all four types while others only apply to one or two.

Real evidence:  This type of evidence is something relating directly to the case, such as the broken dog collar in the case of the dog that ate your roosters, or the actual pages of a contract or agreement in a breach of contract claim. Not only would such pages serve as the core element of the action itself but the pages themselves may offer further insights into the states of mind of the signatories or even glimpses at the nature of the dispute if there are areas that are scratched out or redacted.

Real evidence must be authenticated before it can be admitted. The easiest was to do this is with a witness who can categorically identify an intended real evidence exhibit as what it is. Another way to authenticate an exhibit for presentation at trial is to have the witness who will establish the item’s relevance to the case mark or scribe the item and allow him to distinguish the item from all others.

Demonstrative evidence:  These are, as the title suggests, exhibits that demonstrate, replicate or portray the testimony of a witness. They can also be visual aides that will help the witness explain issues relevant to the trial but which will not themselves be entered into evidence. Typical examples of demonstrative evidence include maps, photographs, animations, models, diagrams and similar representations.

Demonstrative evidence must be authenticated before it can be admitted as an exhibit for the jury to see. Witnesses authenticating exhibits should be able to testify that the prospective exhibit is exactly similar and substantially the same as the object or area it represents.

Obviously, demonstrative exhibits must be accurate and reasonable reproductions of the original. Your opponent can and certainly should – given how effective and convincing demonstrative exhibits can be – attack the accuracy or authenticity of the representation.

Documentary evidence:  Documentary evidence can and often is another kind of real evidence – an example would be the contract in the breach case we discussed earlier – which has been set down in writing or other recording media. The record can be imprinted on paper, film, disk, microfiche, magnetic tape, stone, wood, hay straw, whatever. Anything that can bear a record can be an admissible document once it is authenticated.

Documentary exhibits have to pass legal muster through authentication and because human beings using human language created them, they have some additional hurdles to overcome. They can’t be irrelevant with the intention of varying from an agreed upon contract (parol evidence rule). Documentary exhibits have to be the original of a thing and a rendition or copy where the original is readily available (best evidence) and they have to clear the hearsay rule hurdle (discussed below).

Testimonial evidence:  This is the primary, foundational form of evidence because it does not require some other form of authentication in order to be admitted to evidence. This relevant information comes from witnesses who have either been deposed prior to trial or who have come to court to report directly the events they’re attesting to.

The witness has to clear four tests to be considered authentic. 1) He or she has to swear to and understand the oath or a substitute. 2) He or she has to have personal, on-site knowledge of the events being examined. 3) He or she has to be competent and must remember what he or she perceived at the time and place in question. 4) He or she has to be able to communicate what was perceived at the time and place in question.

Witnesses are called to testify as to what they experienced personally about the time and place in question and may not generally offer opinions or draw conclusions. Since the lines between fact and opinion often become blurred as a witness recollects events and sometimes it is impossible for certain witnesses to offer only fact without language that smacks of judgments and opinion, an exception to the rule is allowed.

The lay person opinion rule allows people who are not testifying as experts for the purposes of authenticating or disputing evidence to offer their opinions in testimony if the opinion is both rational and rather necessary and helpful to understand his testimony.

Rules of Admissibility: If evidence is shown to be relevant, material and competent it will generally be admitted by the court. Generally judges do not like to keep evidence out of a trial unless it is highly prejudicial.

Evidence is considered relevant if it has a tendency to directly reinforce or undercut a disputed fact. To be relevant, an element of evidence doesn’t have to prove a thing completely or really even a little. It just has to have some tendency toward either proving or disproving the fact in dispute.

Evidence is material when it directly effects the events or facts under dispute. Evidence can easily be relevant, but it must also be material to be of admissibility caliber.

Evidence must also be considered competent in terms of its reliability to be considered admissible. This rule protects the judge and jury from inherently unreliable information.

Think about it…

An old trial proverb maintains that if the judge is ruling against you on the evidence, you are probably going to win. If the judge is ruling in your favor look out, because you are probably going to lose. This is because there cannot be an appeal by the loser when all the rulings went their way.

Hearsay:  Evidence of a statement that was made other than by the witness while testifying at the hearing in question and offered to prove the truth of the matter stated. Because second-hand information is often suspect and because hearsay is not sworn under oath nor accountable under sanction of perjury, courts have taken a dim view to the point of excluding hearsay historically.

Exceptions do exist and some critics believe that more hearsay is actually admitted into evidence than excluded, under rules that consider some forms as more reliable. The federal rules contain at least 27 exceptions to allow for the admissibility of statements or documents determined to be hearsay.

These include present statements by a witness that are at odds with prior testimony, statements uttered in spontaneous or excited exuberance, statements revealing the speaker’s then existing mental, physical or emotional state as well as some two dozen other such exceptions.

The federal hearsay rules also include one great “catch-all” exception allowing statements to be rendered admissible as evidence if “the general purpose of these rules and the interests of justice will be best served by admission of the statement.”

[1] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.

[2]   Judge Or Jury Trial: Which Is Better, Nolo, 2003.

[3] How and When To Be Your Own Lawyer, Robert Schachner, Marvin Quittner, Avery Publishing Group, Inc., 1993.

[4] State Farm Mutual Automobile Insurance Co. v. Campbell, No. 01-1289, as summarized by the Center for Individual Freedom, April 10, 2003.

[5] “Represent Yourself In Court: How to Prepare and Try A Winning Case, Paul Bergman, Sarah Berman-Barrett,” Nolo Press, 1998