EVIDENTIARY PROCEDURE
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BUSINESS RECORDS
2. Laying Foundation:
 The record was made and kept in the course of regularly conducted
business activity.
 The record is one that is routinely made and kept in the course of
business, in the business’s usual practice.
 The record was made at or near the time of the event that it records;
and
 The record was made by a person with knowledge, or from
information transmitted by a person with knowledge, and who reported
such knowledge in the regular course of business.
LAYING THE FOUNDATION FOR A BUSINESS RECORD | The Better
Chancery Practice Blog
3. Evidence Code Application:
 Third Party Records (e.g., Third Party Invoices): The elements of
Section 1271 suggest that third party documents should never be
admitted without a witness testifying about the timing and mode of the
their preparation. See Cal. Evid. Code § 1271(d). But what about third
party invoices? Suppose, for example, a plaintiff wishes to have third
party invoices admitted to prove the cost of repairs made necessary by
a defendant's wrongdoing? Suppose as well that the plaintiff received
and paid these invoices. Are the invoices admissible as business
records? Or must the plaintiff call that third party to fulfill the
elements of Section 1271?
 The California Supreme Court in Pacific Gas & Electric Co. v. G.W.
Thomas Drayage & Rigging Co., 69 Cal. 2d 33 (1968) addressed these
questions. G.W. Thomas was a property damage case where the
defendant was hired to remove and replace a steam turbine's cover. In
the course of the defendant's work, the cover fell and damaged the
turbine. Id. at 36. To prove its damages, the plaintiff introduced
invoices received from a third party. The plaintiff testified that it
received and paid the invoices. Id. at 42. The plaintiff also called an
expert witness (a mechanical engineer) who relied on the invoices to
opine that (1) the repairs were actually made, and (2) the charges were
reasonable. See id. at 43. The defendant appealed, and argued that the
trial court erred in admitting the invoices into evidence.
4.
Preliminary v. Adjudicative Facts:
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

An adjudicative fact is, like its name suggests, a fact to which the law
is applied in the process of adjudication. “They are the facts that
normally go to the jury in a jury case.” Fed. R. Evid. 201 Adv. Comm.
Notes. A preliminary fact is “a fact upon the existence or nonexistence
of which depends the admissibility or inadmissibility of evidence.”
Cal. Evid. Code § 400. Examples of preliminary facts include the
qualification of a witness, the existence of a privilege, and the
admission of evidence. Id.; Fed. R. Evid. 104(a).
For example, an adjudicative fact could be whether a defendant driver
ran a red light when entering an intersection. The plaintiff wishes to
call a witness who will testify that the light was indeed red.
The preliminary fact is whether the witness is qualified to testify. In
other words, did the witness personally see the light? See e.g., Cal.
Evid. Code § 702 (“[T]he testimony of a witness concerning a
particular matter is inadmissible unless he has personal knowledge of
the matter….”). For the judge to allow the jury to hear the witness’
testimony to decide the adjudicative fact, the judge must first
determine the preliminary fact question of whether the witness saw the
light.
5. Relevance, Authentication and Foundation (of Evidence):
Documentary evidence must be properly authenticated and a foundation laid
before it can be admitted at trial. While there are classes of documents with
special requirements, laying a foundation generally requires the following
steps described in detail below: • identification and authentication, • relevance
and no undue prejudice, • hearsay exception, and • the best evidence rule. It
should be noted that, at trial, you should make every effort to confer with
opposing counsel in advance to work out any foundation issues and agree
whether copies may be used at trial. At the final pretrial conference, counsel
customarily agree on whether exhibits can be marked as full exhibits or for
identification only. The latter are then taken up via motions in limine before
evidence begins or during trial.
Microsoft Word - Chapter 09 Final.doc (shipmangoodwin.com)
6. Opinion Testimony Rules:
If a witness is not testifying as an expert, testimony in the form of an opinion
is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining
a fact in issue; and
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(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 702.
Rule 701. Opinion Testimony by Lay Witnesses | Federal Rules of Evidence |
US Law | LII / Legal Information Institute (cornell.edu)
7. Admissibility of Writings:
Microsoft Word - ARTICLE_9__RULES.docx (nycourts.gov)
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