For all attorneys, a word of caution is warranted. Experience has shown that far too much evidence is unopposed. Before conceding that the opposition is using admissible evidence, you should first consult the applicable Opposition Checklist. This checklist will help you oppose business records as admissible evidence.
Opposition Checklist– Reasons it is not Admissible Evidence:
1. The record was not contemporaneous.
2. The record was not kept in the ordinary course of the company’s business.
3. It was not the regular practice of the business to keep or maintain the record.
4. It was not demonstrated that the person who made the record possessed sufficient knowledge.
(Someone should be prepared to testify that he or she made the entries or knows them to be correct.)
5. The qualifying witness was not a true custodian or was otherwise unqualified.
6. The circumstances surrounding the document generally lack trustworthiness.
7. The document was prepared in anticipation of litigation, or for use during litigation.
8. The document is not original.
9. The document has erasures, deletions, or alterations that cannot adequately be explained.
10. The document’s entries are vague, illegible, or otherwise cannot be read.
11. Even if the document itself were to qualify as a business record, the material entries are either irrelevant or they consist of inadmissible hearsay.
12. The information contained in the document came from scattered sources, or the writing otherwise consisted of multiple, non-excepted, hearsay.
According to Ashley Lipson, author of Is It Admissible?, “The best feature of the business records exception is the manner in which it permits a mere custodian to act as the sole foundation witness; the person who actually prepared or authored the documents need not be present. But that feature can also be a pitfall. A mere custodian would be easy to attack with respect to several of the items on the above hit list, depending upon the custodian’s actual knowledge or lack thereof.”
For more information on what is admissible evidence and what is not, check out Is It Admissible? by Ashley Lipson. The first of its kind to cover all types of admissible evidence, such as testimonial, documentary, real, and demonstrative evidence.