Robbins: The best evidence
Rules.
If one can say anything about the practice of law in this country, it’s all about the rules.
In 1971, the Five Man Electrical Band came out with the song “Signs.”
The refrain went like this:
Sign, sign, everywhere a sign
Blockin’ out the scenery, breakin’ my mind
Do this, don’t do that, can’t you see the signs?
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It made Kayne seem like Puccini.
Substitute the word “rule” for “sign” and “evidence” for “scenery,” and you’ve pretty much mastered the concept. In law, rules are about as ubiquitous as bees on honey. There are rules of civil procedure, rules of criminal procedure, professional ethics, appellate rules, and, of course, rules of evidence. And, as the saying goes, with that, we’ve just scratched the surface. Besides the formal rules, there are informal rules as well, such as those for proper etiquette before the court, how one addresses a judge, and how one interacts with “learned” counsel.
As I have noted before in these columns, law is a very stylized affair; there are rules for this and rules for that and rules for other things you never even thought of.
In essence, what guides the law are three polestars: the law (both statutory and “common” in nature), the facts, and the rules. The foregoing takes a little ‘splainin’. The law may be considered in two ways, each of which may be further subdivided twice. First, there is the common law, developed over time by the customs, mores, and values of society. The common law is embodied in the case law, which stretches back over time and developed by the means of prior judicial determination. Second — but none the lesser — there is statutory law, which is enacted by the legislature. Both common law and statutory law have equal footing. Before the court, one may rely on one, the other, and often both, to prove one’s case.
The further subdivision may be thought of as the law of law and the law of equity. In the first case, it is what is written or the precedent which has been previously set by prior cases which have come before the courts. In the latter case, it may be thought of as what is “fair.”
The “law of law” is that law which is laid down, ordained, or established. It is the sum of the rules established by controlling authority, or precedent, and having binding legal effect.
The “law of equity” is what’s fair. It is law administered according to what is “equitable” under the circumstances, as contrasted with the strictly formulated rules of common law. Equity is based on a system of rules and principles that moderate the oft-times harsh rules of the common law. Equity is based upon what is fair in a particular situation instead of what would otherwise be subject to rigidly applied principles. Historically, one sought relief under this system in courts of equity rather than in courts of law.
In modern legal application, equity is a system of jurisprudence collateral to, and in some respects, independent of the “law”, the objective of which is to render the administration of justice more complete. As but one example, if one has performed work for another, but lacks a written contract, the law of equity may still save the day by finding that, absent compensation to the party who performed the work, the other party would be unjustly benefitted (or, more properly in the lexicon of law, unjustly enriched), and, therefore save the day and yield a fair result.
So what about our subject, the best evidence?
The best evidence rule applies when a party wishes to admit the contents of a writing, recording, or photograph at a trial, but the original is not available. Speaking broadly and historically, if the original is unavailable, the party must provide a valid reason why. If the original document is not available, and the court finds the reason provided acceptable, then the party is allowed to use secondary evidence to prove the contents of the document and have it admissible as evidence.
The best evidence rule only applies when the party offering evidence is trying to prove the content of the writing, recording, or photographic evidence, but does not apply when a party is only seeking to prove an event. For example, a witness may testify that she provided payment without entering a receipt for the payment into evidence. In such a case, the witness is not trying to prove what the receipt says, but simply testifying that she made a payment. Although the payment could also be proven by having the receipt as evidence, the best evidence rule does not require the receipt to be entered.
Colorado Rule of Evidence 1002 tweaks this concept slightly, providing only that, “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute of the State of Colorado or of the United States.” In other words, more rules.
So there you have it; the law in motion, the law as an evolving, breathing being. The best evidence — the original — unless statutes or even more rules otherwise provide.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.
