What Is Evidence?


A trial is where the person making the claim (the "plaintiff") must prove their case to a judge or jury. The person who filed the lawsuit has the "burden of proof," which means they have to prove the facts of the case that support their claim. In civil cases, they have to prove the facts by a "preponderance of the evidence," which means they only have to prove the facts are more probably true than not. If you consider a scale, it only needs to tip a little in favor of one party. They prove the case by presenting evidence. 

Below is information that may be helpful if a creditor files a lawsuit against you, but it is not a substitute for legal advice. There are other rules and laws that may apply to your situation, but these are common rules and laws that apply in civil cases.

 
 
1  FOUNDATION
  • There are different types of evidence. But most evidence must be presented through a witness. This means that someone cannot just hand the court a picture or a document and say it is their evidence.
  • Unless it is an official document, someone has to testify as to what the picture or document is, how it was prepared, and what it means. 
  • It also means the person who introduces the picture or document must also be the person who created it, or the custodian of the record. A custodian of the record is someone whose job it is to request, produce, and keep these documents for their employer. This is what we call foundation.
  WARNING: Just because the document or picture was attached to the complaint or the response does not mean it automatically becomes evidence. 

 
 
2  WITNESSES
  • Any person with knowledge in a case can be a witness. A witness may be someone who saw, heard or somehow perceived an event. The parties in a case can also be witnesses. A witness cannot give an opinion.
  • Usually, a witness cannot testify about what someone else told them. This is called hearsay and is only allowed in certain situations.
  EXAMPLE: If you want the judge to know that the mechanic did not fix your car correctly, you cannot testify as to what another mechanic told you was wrong.

 
 
3  CROSS-EXAMINATION
  • The party who calls a witness to testify will ask the witness questions. Then the other party has a right to cross-examine, which means they can ask their own questions. Then the first party gets to follow up based on cross-examination.
  • A witness must appear to testify in a trial. You cannot present a letter with a witness' statement, even if it is notarized. The witness must be available for cross-examination.
  NOTE: If you think the witness will not come voluntarily, you can ask the court to issue a subpoena, which is a court order to have them come to the trial.

  4  EXPERT WITNESSES
  • Witnesses can only testify as to things they know and cannot give an opinion. Only expert witnesses can give an opinion. 
  • An expert witness is someone who has special knowledge on a topic because they either have studied it or they have worked in the particular field.
  EXAMPLE: If you think a contractor did a bad job, you might need another contractor to be an expert witness to tell the judge why the job was done wrong.

  5  PHOTOGRAPHS AND DOCUMENTS
  • If you want to show a photo in the trial or hearing, you should be able to testify about who took the picture, when and what the picture shows. You must also explain the same about any document you present.

  • BEWARE: If you are trying to present a document prepared by someone else, you might need them to testify. If not, it could be considered hearsay.
  EXAMPLE: You cannot present a letter from your child's school as proof of address. 

  6  SUBPOENAS
  • If you need to obtain a document for the court, you can ask the court to sign a subpoena for the person or company to produce the document.
  EXAMPLE: You could ask the bank to give you a document showing if a check or money order was cashed.

  7  DAY OF TRIAL
  • The trial will probably not be continued to give you more time to obtain evidence if you forgot to bring it. 
  • The judge or the court cannot look up anything for you.
  WARNING: Remember you must present the evidence for your case on the day of trial.