Income & Expense script

The wrong way.

Attorney #1: Mr. Smith, showing you Respondent’s 2 for identification, what is that?

Respondent: My pay stub from last month.

Attorney #1: Does it accurately reflect your income for last month?

Respondent: It does.

Attorney #1: Your honor, I ask that Respondent’s 2 for identification purposes be received into evidence.

Attorney #2: Objection, hearsay.

Attorney #1: But it’s a business record, your honor.

Judge: It is a business record, but your client is not the document custodian who can testify to the foundation required by evidence code section 1271.

Attorney #1: Then I offer Respondent’s Income & Expense Declaration along with his past two pay stubs which is required by California Rule of Court 5.128.

Attorney #2: Your honor, while attorneys normally stipulate to the Income & Expense declarations and pay stubs coming into evidence, I’m afraid in this case I simply must object to both the Income & Expense and the pay stubs as hearsay.

Attorney #1. But your honor, California Rule of Court 5.128 says that the Income & Expense and the pay stubs must be served and filed with the court. Doesn’t that make them admissible?

Judge: While many documents must be served, and many must be filed, that does not create an automatic exception to the hearsay rule so the objection is sustained.

The right way - on direct

The attorney should have sought to stipulate to the admissibility of the Income and Expense and the pay stubs. Absent that, the attorney should have subpoenaed the document custodian for Respondent’s employer to get him or her to authenticate the pay stubs.

The right way - on cross

Attorney #2: Mr. Smith, Isn’t it true that you made $100,000 last year?

Respondent: No. Not even close.

Attorney #2: Did you prepare an Income & Expense Declaration in the course of this dissolution?

Respondent: Yes.

Attorney #2: Your honor, I am now showing opposing counsel Petitioner’s exhibit #5 for identification.

Attorney #2: Your honor, may I approach the witness?

Judge: You may.

Attorney #2: Do you recognize this document marked as Petitioner’s #5 for identification.

Respondent: Yes, it’s my Income & Expense.

Attorney #2: When did you prepare it?

Respondent: Last month.

Attorney #2: Does this Income & Expense Declaration refresh your memory as to your income?

Respondent: Nope.

Attorney #2: Your honor, I move that Petitioner’s #2 be received into evidence.

Attorney #1: Objection, hearsay.

Attorney #2: Your honor, this is admissible hearsay under Evidence Code section 1220 as a party admission. It’s also admissible as a prior inconsistent statement under Evidence Code section 1235.

Judge: Objection overruled.

Attorney #2: Mr. Smith, according to your Income & Expense Declaration, is your rent $2500 per month?

Respondent: Yes.

Attorney #2: When you moved into your current apartment, did you sign a lease?

Respondent: Yes.

Attorney #2: And when did you sign that lease?

Respondent: It was when I moved in in February of this year.

Attorney #2: Your honor, I am now showing opposing counsel Petitioner’s exhibit #6 for identification.

Attorney #2: Your honor, may I reapproach the witness?

Judge: You may.

Attorney #2 Mr. Smith, I’m showing you what’s been marked as Petitioner’s #6 for identification. Do you recognize it?

Respondent: Yes, it’s my lease.

Attorney #2: Is that your signature at the bottom?

Respondent: Yes.

Attorney #2: And does it say that the rent is $1250 per month?

Respondent: Yes.

Attorney #2: And yet in your Income and Expense said your rent is $2000?

Respondent: Yes.

Attorney #2: But you signed a lease agreement for a rent of $1250 per month in March?

Respondent: Yes.

Attorney #2: And how many people signed this lease?

Respondent: Two.

Attorney #2: Your honor, I move that Petitioner’s #6 be received into evidence.

Attorney #1: Objection, hearsay.

Attorney #2: Your honor, as a signed instrument, this lease has independent legal significance and is nonhearsay.

Judge: Overruled.

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