On March 7, 2019, I had two oral arguments at the Tennessee Court of Appeals. When these were first scheduled, I was really excited to tell everybody what an important litigator I am, having two monumentally important legal issues on appellate review on the same day.
Then, on or about March 1, I realized I was in for an absolutely awful week. (It was.)
Nevertheless, I got through it, was proud of the presentations, and was also very glad to be done with them. Now, I’m just waiting on the opinions, which will be issued any day now.
Part of this process is watching the appellate opinions that are issued daily by the Tennessee Court of Appeals on the Tennessee State Courts website, by clicking the “Opinions” tab.
I check every morning when I get to the office, and I check for opinions every afternoon before I leave. I’m still waiting.
By doing this, I’m also reading many of the latest opinions. Because of my practice area, I’m definitely reading any big case on commercial litigation, foreclosures, and similar creditor’s topics. And, if it’s a slow day, I’ll read the divorce opinions too.
I do this, mainly, because the facts are so interesting. And, before you accuse me of schadenfreude, I’ll say this: divorce cases have some really useful analysis of the laws of evidence.
Take the Pearson v. Pearson opinion from yesterday (W2018-01188-COA-R3-CV, Tenn. Ct. App. June 6, 2019), where the Court of Appeals does a deep dive on hearsay and the business records exception. It’s a great refresher. Here are some citable quotes:
What is the relevant definition of “hearsay”?
“Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801; Toms v. Toms, 98 S.W.3d 140, 144 (Tenn. 2003). To be admissible, evidence must conform to the Tennessee Rules of Evidence. However, if a hearsay statement fits under one of the exceptions, the trial court may not use the hearsay rule to suppress the statement. Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015). The trial court has wide discretion in admitting or excluding evidence and will be reversed on appeal only upon on showing of abuse of discretion. See Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn.1992).
What is the Business Records exception to “hearsay”?
Although generally inadmissible, hearsay is admissible as provided by the Tennessee Rules of Evidence or otherwise by law. Tenn. R. Evid. 802; see also Holder v. Westgate Resorts Ltd., 356 S.W.3d 373, 378 (Tenn. 2011). Tennessee Rule of Evidence 803(6) is the “exception” to the hearsay rule commonly known as the business records exception.
There are five criteria to establish this exception (citing Alexander v. Inman, 903 S.W. 2d 686, 700 (Tenn. Ct. App. 1995)):
- The document must be made at or near the time of the event recorded;
- The person providing the information in the document must have firsthand knowledge of the recorded events or facts;
- The person providing the information in the document must be under a business duty to record or transmit the information;
- The business involved must have a regular practice of making such documents; and
- The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.
This analysis was provided in the context of a husband trying to prove that his pay was going to be cut (and, thus, his future alimony obligation should be lower), but it’s equally relevant to introducing testimony about payment histories in a bank lawsuit.
And, yes, many of these opinions are not going to be published and may not be cited in your future briefs. But, on the other hand, these are very up-to-date citations that the judicial law clerks and appellate judges are relying on as “The Law.”
So, even when my very important and monumental cases are decided, I’ll keep the Tennessee Courts website bookmarked.
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