This one might fall into the “too obvious to mention” category, but sometimes people bring up “rumor” 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 may 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 evidence?
“Evidence” is something you use to try to prove a fact that makes a difference in your dispute. Your evidence should increase the possibility of what you are saying, you don’t have to cold prove it. Just make it a little more likely. And it must be “material,” which means that the fact you are trying to prove must affair to the case For example, the fact that a Florida beach is pleasant 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.)
The umpires act as judges, although they usually 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 showdowns
The main type of motion that uses evidence is called a “request 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 judgment (a topic for another day), but in any case, 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 the court, for the most part. Evidence that would be hearsay at trial would be hearsay in a motion and would not be allowed unless there is some type of exception. Although I should mention that the evidence for 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 hearsay, that doesn’t just mean in court, at trial. It also means for any adversarial situation that requires evidence.
When does the evidence count? And when should you object?
For evidence to be considered by a decision maker, it must be “admissible.” An “objection” means that you do not think it is admissible. If the court decides that you are right and the evidence is not admissible, it will “uphold” your objection. If the judge decides against you, he or she will “overturn” 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 considers it even though it’s not admissible, that could be grounds for appealing the sentence.