Transcript

​​Spenser Housewright: I think evidence is crucial. I think it’s the most important part of a case, because it’s essentially what you use to prove that something is true or not true, and so it’s how you prove your case to a judge or a jury.

Voiceover: You’re listening to The Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now here’s your host, attorney Holly Draper.

Holly Draper: Today, I’m excited to welcome Spenser Houseright to The Texas Family Law Insiders podcast. Spenser is a family law attorney at the Shapiro Law Firm in Plano, Texas. She’s worked at some of the most prominent family law firms in Texas, where she has assisted high net worth clients in all matrimonial issues, including adoption, asset tracing and premarital agreements.

She has had works published by the State Bar of Texas and the Texas Society of CPAs on various family law topics, including complex property issues and trial preparation. Spenser is a 2013 graduate of Baylor Law School, where she was a member of the Dean’s list and active in moot court as well as Baylor’s Top Gun National Mock Trial Competition.

She earned her bachelor’s degree magna cum laude from Auburn University in 2010. While at Auburn, she was a member of the Honors College, Pi Beta Phi fraternity for women, and the University Program Council, in addition to serving as a Boys and Girls Club volunteer. She studied abroad at Oxford University in England and the University of Salamanca in Spain.

Spenser’s practice focuses on business valuation issues, complex property division, child custody, enforcement actions, modifications and premarital agreements. Outside of work, she enjoys spending time with her sons, Jackson and Lincoln. Thank you so much for joining me today.

Spenser: Thank you for having me, Holly.

Holly: So why don’t you start and just tell us a little bit about yourself.

Spenser: So my name is Spenser Houseright. Like you said, I work at the Shapiro firm. I do all family law related matters, so I do child custody cases, I do adoptions, I do divorces, obviously prenups, postnups and enforcement. And then I just started doing surrogacy contracts, which has been super fun to kind of dive into something new, but anything related to family law, I do.

Holly: So today we’re going to talk about something that every lawyer needs to understand, and that is evidence. How to get things in, how to keep things out, because without any evidence, you have no case. So talk a little bit just generally about the importance of evidence and how your judge matters in the context of family law.

Spenser: So I think evidence is crucial. I think it’s the most important part of a case, because it’s essentially what you use to prove that something is true or not true, and so it’s how you prove your case to a judge or a jury. And so it’s crucial to know how to get it in, and it’s also crucial to know how to keep inadmissible evidence out.

And it’s also important to note that in the family law world, judges are more lenient with the rules of evidence, and ultimately, if they do want to hear something, they’ll let it in, even if the rules of evidence are disregarded, because ultimately, they have to do what’s in the best interest of the children. So if they want to hear something, it’s going to come in, which is good news and bad news.

Holly: Yeah, the appellate lawyer in the room was like, you can’t do that. You know that a lot of judges don’t care, and they don’t care what the rules say or what the law says sometimes, and they’re going to do what they’re going to do. So I think that’s why it’s so important to know the judge that you’re going to be going in front of and what are their tendencies?

How much are they going to let things in that shouldn’t be getting in? How much are they going to keep things out and make it really hard on you? And if you don’t know the judge, ask around, because somebody is going to know the judge and is going to be able to tell you these things.

Spenser: 100 percent. And like you said, it differs depending on what county you’re in and what judge you’re in front of, and they still have to abide by all the privilege laws, like you can’t let privilege information in, but they don’t have to necessarily abide by the rules of evidence. And sometimes they’re not walking textbooks either, and neither are we. And so a lot of times you might have to educate the judge on the rules of evidence. So it’s important to go in prepared, knowing how to argue what you want to get in, and how to keep evidence out.

Holly: I think it’s a really good idea to have the rules at your fingertips if you can. I can think of an example where I was in court and the other side made some objection that was completely a wrong objection. They had objected to leading on an adverse witness. And I was like, this is the opposing party. That’s what you do. You lead the adverse witness.

But I didn’t know off the top of my head what rule that was, and the judge, for some reason I’ll never understand, sustained the objection, and it totally threw everything off. Because, well, how am I going to get this stuff in if I can’t lead the adverse witness? So you never know when a judge is going to do something like that. So if you’re able to really quickly put your finger on the rules, it will definitely help.

Spenser: Definitely. That’s the beauty of crossing someone is leading them. But no, my first year out of law school, one of the first hearings I ever went to, there were older attorneys there, and I was just watching, observing, and the attorneys were trying to get in bank records from Chase, and they didn’t have a witness there to authenticate them, and they didn’t have a business record affidavit.

And so the judge was annoyed, and the judge said, y’all go read the rules of evidence, and we’ll come back after the break. And everyone in the courtroom was just mortified, and the client saw the judge say that to their lawyer, and everyone was just stunned, and it was embarrassing. And so I kind of have some trauma from that.

And so ever since that experience, I’ve just been ultra prepared for evidence. And everyone kind of makes fun of me for just trying to prepare so much for it. But I’m like, you have no idea how it can get humiliating if you don’t know how to get it in.

Holly: That leads us into talking about, how do we get it in? And I think the first thing that attorneys really need to think about, especially if you are going to have a severe time restriction, is how to choose what you’re going to use and what you’re not. Do you have any tips for people on how to make those types of choices?

Spenser: Well, like you said in Collin County, specifically for a temporary orders hearing, you only have 20 minutes a side. And so a lot of times, clients will come to you and they’ll give you 100 pages of text messages, they’ll give you 100 photos, they’ll give you all these records and statements, and you only have 20 minutes, and so you have to pick out the best things.

I only put in evidence, obviously, that is going to help my case tremendously. And a lot of times, the client wants you to put in everything, but they don’t know that, hey, we have to look at the big picture, and what is our ultimate goal? If our ultimate goal is to get you primary custody, let’s put in the text messages between you and your husband where he is saying horrible things about the kids, saying horrible things about you.

Those are gonna be helpful for us. But other things might not necessarily be helpful for us. So it just depends on your ultimate goal, and you have to know what your theme is and what you’re trying to prove before you can pick your evidence.

Holly: And I think a lot of times, you know, I’ve seen a lot of clients where they have recordings and they think, this is the silver bullet. This is what is going to win the case for me. But when you have 20 or 30 minutes aside, you cannot play a five-minute recording. I mean, I guess there are always exceptions, but you know, it’s figuring out what to use in a time crunch is definitely an art and a challenge.

Spenser: Definitely, and I want to add to that, I’m so glad you brought that up, because sometimes I’ll have clients give me a recording, and I’ll play the recording, and the recording will make my client look just as bad sometimes, if not crazier than their spouse. And I have to tell them I don’t think it’s a good idea to play this, because you look really bad here. And so I have to explain it to them in that way. But that happens very frequently.

Holly: Yes, definitely. And a lot of times, just the act of recording it, the fact that they were recording it, makes them look bad. Your child was screaming and crying, and you’re sitting there with the phone out, taking a recording.

Spenser: Definitely, and you know, it’s staged sometimes, because the client is very calm and collected and, you know, it’s just for a show. That never comes across well either.

Holly: Okay, so you’ve decided what you’re going to use, and you have everything ready to go. Let’s talk about how we’re going to get these particular pieces of evidence in. Obviously, you have to lay the predicate. The exception would be if you can get agreements in advance. I, especially in a time crunch, am usually not inclined to try and reach agreements in advance for a couple of reasons.

One, I want the other side to have to waste their time getting these exhibits in, and two, I may not want them to see what my exhibits are until I pull them out in court. Now, I know that there are some courts where you can’t do that, and you really have to exchange them in advance, but it takes some of the fun out of it in my mind.

And it really keeps, you know, it gives the other the person who’s gonna lie a chance to get their story straight about whatever the text messages were, or whatever the case may be. So first type of exhibit that we often see would be photographs. I don’t know what your opinion is on this.

I think, so a lot of attorneys will put in photographs of the kids or the parent and the kids, or whatever. I almost never do unless it’s a really valuable photograph for some other reason. But I have heard people say, oh, judge so and so really wants to see the kids. They want to know who they’re, who we’re talking about today. What is your opinion on using those kinds of photos?

Spenser: So I that’s so funny because I typically always use photos, and I only use about three or four, sometimes two, but I’ll ask my client to, in custody cases, I’ll ask my client to give me two or three photos of him or her with the children doing an activity. So say they’re out at dinner, they’re at Six Flags, they’re bowling, whatever the activity may be.

And one of the first couple of questions I ask is, please state your name for the record. You’re the dad or mom of so and so, why are you here today? And in fact, these are some photos, and then I’ll authenticate the photos, but I like to do that because it shows the judge or the jury that the dad or the mom is doing an activity with the child.

And then I’ll ask my witness, what exactly are you doing with the child right now? Do y’all do that often? Is this something that you like to do together? And so it kind of paints the picture of the relationship of parent and child. So that’s why I like to do it. I don’t like to do it just to show a photo of dad and mom with the kid, but I like to show it in a relationship type of way, and kind of painting the ultimate picture.

Holly: I do think it can be really useful, especially if you have the other side’s gonna say your client was never involved. Your client didn’t do anything with the kids. Well, sure, they did. Walk us through, you have your photos and you don’t have an agreement about their admissibility, and you need to get them in. Walk us through the steps of how you’re going to authenticate and admit these photos.

Spenser: So photos are typically pretty easy to get into evidence. I found you really have to just prove up that the witness is familiar with the photo and the scene and that it’s a fair and accurate depiction of that scene. And so if the other lawyer objects and says, Your Honor, they didn’t take that photo, well that’s not part of authentication.

Like my client does not have to have taken that photo in order for it to be properly authenticated and admissible. And so I found that it’s really hard to deny a photo of dad and kids or mom and kids. So I haven’t had a lot of problems getting photographs in. They’re kind of self-explanatory, and the witness just has to be familiar with the scene.

Holly: I think there’s some times when, you know, there are some where people are really not gonna object, because, okay, it’s a picture of dad and kid at the soccer game. Fine. There are other types of photos that can be really useful.

You know, the picture of the other party passed out drunk, or the picture of all the alcohol bottles spread around the room, or something like that. I think in that situation, you may need to lay down just a little more groundwork about who took the picture. When was it taken? Is this what it looked like? Has it been altered, all of that jazz?

Spenser: Yes, definitely. Are you familiar with this photo? Are you familiar with the people in this photo? Is this a fair and accurate representation of the photo? And then you offer it, and typically no one objects. It’s rare to have someone object to photos, but I do have a story that happened to me a couple of weeks ago in a temporary orders hearing.

The opposing counsel was trying to get in a TikTok video, and they had their witness on the stand trying to authenticate this TikTok video. And I objected, because the witness they were trying to get it in through wasn’t the owner of the TikTok account. They were trying to get in Johnny Joe’s TikTok account video.

And I said, objection, this witness cannot authenticate this video because the witness didn’t take the video, the witness doesn’t have any idea about the scene or any of the factors about what’s going on, and the judge sustained it. So they were not able to get in that TikTok video because they used improper witness and couldn’t authenticate it.

Holly: Interesting. Because I would think you could authenticate a video as a TikTok video that you had seen posted to this account that you know belongs to this other person and you recognize the people in the video, or something like that.

Spenser: Yeah, I objected because I said that witness does not know if that’s an accurate representation or an accurate depiction of the video. And they have no idea when that video was taken or what room that video was even in. And so they just couldn’t properly, and she even said on the stand, I don’t know.

I don’t know, because she just didn’t know. It was just something that she saw, and the judge kept it out. So if you don’t want a piece of evidence in like that, just try your hardest to keep it out. And sometimes the witness, sometimes the lawyer, just can’t properly authenticate it.

Holly: So, another type of evidence that we use a lot in family law would be business records. And I think it’s really important for people to understand that just because you have a business records affidavit doesn’t by itself, mean that your evidence is admissible. It could be full of hearsay, it could be full of other objectionable things that are going to keep it out. But from an authentication standpoint, business records affidavits can cover that. Talk a little bit about the affidavits, how to get them, the requirements for filing them, all that jazz.

Spenser: Okay, so I use business record affidavits all the time. I actually overuse business record affidavits. Sometimes, if I can prove something up by a public record, I’ll get a business record affidavit just in case, because I like to have two ways of getting evidence in, in case my first method fails. So I overuse business record affidavits.

It’s just a document that you get the Custodian of Records to sign saying that, you know, hey, these are the pages of documents from this medical facility or this counseling facility, or school, or whatever it may be, bank. And that they’re kept in a regular course of business. They were made by a person with knowledge, and they were made at or near the time of whatever happened happened.

And so I get them all the time, but in order to use them, you must have them on file for 14 days before trial. And if you don’t have them on file for 14 days before trial, you need to call the witness live to testify about them and prove them up that way. And I have kept evidence out because the opposing side did not have it on file for 14 days, and that’s just a huge bummer. So you just have to know what to do if you don’t file it in time.

Holly: And sometimes you know we’re talking 14 days before a temporary orders hearing. I mean, it might not logistically be possible to get records that quickly and have them on file for 14 days. It depends how fast your hearing is, but be ready to call that witness.

If your opposing attorney is easy to deal with, you may be able to get an agreement in advance that we’re going to let this in without the witness. I think it’s nice to do that when we’re talking about witnesses that are like, do we really need to drag the school principal in to authenticate these records, or can we just agree that they’re authentic? Is that something you normally try and do?

Spenser: I do. Especially, like you said, for temporary orders hearings, if I don’t have time to get the business record affidavit filed in time, which is often, I will call up of opposing counsel, or sometimes I’ll just wait to the day of the hearing and say, hey, can we agree that these are admissible? Like you were saying, you don’t want to show all of your cards before the hearing, and so I don’t want to call up too, too much in advance.

But a lot of times they’ll say, sure, yeah, let’s just go ahead and do it. Or if they’ve produced something in discovery that I want to use, and I don’t have it, but they’ve produced it, then they usually always agree that that comes in if they’re the ones that I’ve produced it to begin with.

Holly: So what are some common business records that you use in family law cases?

Spenser: Medical records. A lot of times, if I want to use medical records, I do sometimes call the pediatrician live, though, to talk about, you know, since the kid has lived with Dad, this is what’s going on, or since kid has lived with Mom, this is what’s going on. And so I do think it’s helpful to have the doctor there to testify, but as far as getting medical records into evidence by themselves, I always get a business records affidavit.

Police report, and I always get a business record affidavit for those too. Those also can come in under the Public Record exception. But I typically always do a business record affidavit and call the police officer live to testify, because there’s tons of hearsay in the business records, most of the time with police reports, and you have to be able to overcome the hearsay within hearsay and all of that in order for it to be admissible. CPS records are another one. Again.

Holly: Good luck. Good luck getting CPS records with business records affidavit if you want to have your hearing anytime in the next 18 months.

Spenser: Exactly. And I have done it in Dallas County, I have gotten CPS records, but if they’re good for you, you always typically want that investigator to testify, and I have found that the investigators are super cooperative, and part of their job is to testify. And so I just subpoena them and call them to trial or call them to the hearing and put them up on the stand. And so I don’t always have to get that business record affidavit filed 14 days before if I’m going to call them to the hearing.

Holly: So the next type of evidence is probably the most used in family courts, and that would be text messages. The biggest mistake, I think, especially when clients are sending us stuff, is you can’t see the name of who’s calling or the phone number, or you can’t see a date, or something like that. What do you tell clients when it comes to text messages and the best way to produce them?

Spenser: So if we have time, and by time, I just mean, a couple of days before the hearing, I always ask them to download them to imazing. It’s just www.imazing.com and you can extract your text messages onto this service, and it puts them into the PDF format.

And it makes it so much easier to authenticate text messages when they’re in that PDF format, because it has the date and the time and all that good stuff. When you just have a screenshot, it doesn’t have the date all the time, doesn’t have the time. And so you have to ask a lot more questions of your witness in order to properly authenticate a screenshot, as opposed to an imazing PDF.

Voiceover: This episode of The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm, providing family law appellate representation for nonparent custody cases, jurisdictional issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access. For more information, visit draperfirm.com or call 469-715-6801.

Holly: So have you ever had anyone object to text messages that were coming through imazing because we don’t know how this program works. We don’t know that this is truly what was in the phone, because we’re not seeing them on the phone anything like that?

Spenser: You know, I have not, and I’ve used text messages in court so often. It’s funny, because I always get the most nervous about trying to get text messages in, but I have never had a problem getting text messages in.

I don’t know. It’s just one of those things that’s a little easier to get in, in my opinion. I think harder pieces of evidence to get in are business record affidavits and documents with hearsay and stuff like that. But text messages and photographs, I think, are pretty easy to get into evidence. And I have not. Have you ever had someone object to imazing?

Holly: Not that I can think of. But it just occurs to me that I might want to object to somebody trying to get them in through imazing. Because how does the person whose phone it was, you know, there have to be some extra steps of authenticating that this came from their phone. That they did the steps for imazing that whatever’s printed out on imazing accurately matches the text messages that were on the phone.

Spenser: Exactly. No, that’s a really good point. I think that imazing is just such a well known software in family law courts that everyone’s just so used to it at this point, but I bet it would throw judges and opposing counsel for a loop if someone just said, I object imazing, you know?

But, yeah, I’ve never really had an issue getting text messages in as long as you know the proper questions to ask your witness and you can question them on, is this a print out of a screenshot? Do you know this person’s name on this text message screenshot? Do you know their number associated with it? Do you regularly communicate with this person by text? Have you ever had someone else text you from this number, and you can get it in that way.

A lot of times, like just this week, I had a temporary orders hearing on Monday, and I got in text messages, and I just went up to the adverse client, or adverse witness, and I said, do you recognize this text message? Did you say this? Yes, yes. I mean, it’s pretty easy to get them in if they’ll agree with you.

Holly: See if I’m the opposing side, well, let’s say, I think that the other side is going to try and get text messages in through my client. I might be coaching my client how, like, don’t admit to things. Don’t admit that it hasn’t been altered. You haven’t looked through that little stack of documents. You don’t know. Don’t make their job easier than it has to be.

Spenser: 100 percent. And I think a lot of people think if you have an adverse witness on the stand, you don’t have to prove up the text messages the way you would prove them up with your client. So don’t ask, like I would never ask an adverse client. Do you recognize this document? Do you know, if you ask those open-ended questions, you know that most likely that witness is not going to be cooperative, and so you cross them into that predicate.

You say you recognize this, don’t you? And this is you, isn’t it? And so they’re gonna agree with you a lot more if you direct them that way, than if you’re gonna ask an adverse witness open-ended questions. Just cross them into that predicate, and it’s going to be so much more successful.

Holly: So one thing or type of evidence that I think is not very well understood, but that probably should be used a lot in family law cases would be personal business records. So, can you talk a little bit about what qualifies as personal business records and how to kind of handle that in court?

Spenser: I think personal business records would be personal if you can’t get a business record affidavit 14 days before trial, just say you’re running out of time. You can’t find a witness from Chase to come testify for you. I think personal business records could be your personal bank account information. If you are the keeper of the I mean, if you know those records and you can get them offline.

I would try to do it that way. I would try to authenticate them by telling my client you are the keeper of your own personal business records, and try to see if that worked, if all else failed. I think if you own your own law firm like you do, those are your personal business records, and you can prove up those business records just like you would under 803, a business record affidavit, just asking those questions of yourself.

You know, I know I keep these records in the regular course of my business or organization or whatnot. And so that’s how I would get in the personal records. I would do it just like the business record exception, and I would use those questions to do it.

Holly: So one of the biggest issues we come across with evidence is hearsay. I think a lot of people, even lawyers that have been doing this for a while, don’t necessarily understand it. I think it’s rare that an attorney will respond to hearsay objection by saying it’s not offered to prove the truth of the matter asserted. But they could a lot.

So I think that’s that’s like the first step, if the other side is objecting to hearsay, is this offered to prove the truth of the matter asserted? If it’s not, it’s not hearsay, and you have to explain that to the judge and why this is not offered to prove the truth of the matter asserted. But assuming that it is, what are the most common exceptions that you use in your family law cases?

Spenser: So I typically want to get something in that is hearsay. And so I just had one recently in Dallas County that we were trying to get in a recording of a father and a daughter. The daughter was a minor, and it was obviously hearsay. It was obviously going to be used to prove the truth of the matter asserted, her exact words.

And so we were able to get that in under the present sense impression exceptions, as well as the state of mind, and also the then existing mental condition. Because it was like violence in the video, and so we were able to get that in as an exception. But typically it’s recordings, and if you can use an exception, they’ll come in.

But it is a battle back and forth, and you have to be prepared to know how to respond to objections, because if they object, obviously it’s not going to come into evidence if you can’t back up why you think this should come in. Why is there a hearsay exception to this?

Holly: And I see hearsay objections all the time. We’re not using recordings a lot, but we still see hearsay objections a ton, just based on what people are saying in their testimony and records. Every record you’ve ever seen has had some hearsay in it, sometimes multiple layers of hearsay. So I think, you know, the medical treatment, that’s a big one. When it’s a therapist on how you can get in what this kid is saying. I think excited utterance is a big one. Present sense impression.

Spenser: Definitely. And the business record affidavit, obviously, that doesn’t protect hearsay within hearsay. And so, like you said, the medical records, that’s all gonna come in as an exception to hearsay if you can prove that the patient said this in order to get medical treatment. And so that’s gonna come in even if the other side objects to hearsay.

Holly: And I think when you’re on the other side of that, you have to be mindful of what exactly is in those records. Okay, the kids said this, yeah, there’s an exception. But did the parent say that this is what happened? The exception is not going to apply, because it’s not, the parent is not getting the treatment.

Spenser: The parent is not getting the treatment, definitely. And same with police reports, if you don’t want that police report in, objection hearsay within hearsay. Because every single time I found that the police officer is interviewing people, oh, Sally Sue said this, and then Johnny said this. And so if you object to hearsay within hearsay, it’s probably not going to come in.

And so that’s why I like to call the police officer live, and you can still question the police officer. When did you do your investigation, and what did you find, and what were your observations? And so you’re going to end up getting a lot of that report into evidence, even though there’s hearsay in the report, because you have a live witness.

So I always think to myself, if you can get a live witness, and you know that witness is going to be good for you, make sure to call them, because it’s better to get that in if it’s going to be great for you, than to have it excluded altogether.

Holly: So one last thing on the getting evidence in front, and this is really important for people to remember, is making an offer of proof. If you can’t get something in, you have to ask to make offer of proof. If it is something important that you really want in, you lose your ability to appeal on its exclusion if you do not make an offer proof. And I see a lot of times attorneys are they’re either afraid to do it or a judge won’t let them do it. But you’ve got to make sure you’re asking for it and objecting to the judge’s refusal to grant one if that’s what’s happening.

Spenser: Yes, and you know this the best, because you do appeals, and you know how important that is to get everything on the record, because if you don’t have a record, you cannot appeal it. And so the offer of proof, I’ve done it a couple of times, and it’s just, if you want to get a piece of evidence in, and the judge has excluded it because opposing counsel has objected to it, this objection is sustained.

Then you ask to make the offer of proof so that you can appeal it if you want to, and the record is protected. You do that before the end of the hearing, before the end of the trial, before it’s read to the jury. If you wait until it’s read to the jury, it’s too late. So you have to do it before, and I think it’s best to do it right at that time, and you just question the witness and say, Your Honor, I would like to make my offer of proof.

This is what I wanted to have as evidence. And you could actually do a question and answer format with your witness. They can answer that question like they’re testifying, and then opposing counsel objected. This is what the ruling was. This is why I think it’s admissible. And then you conclude your offer of proof, and that way it’s protected, so that they can hire awesome appellate lawyers like you to overturn it.

Holly: Yeah, and sometimes I’ve seen judges who will say you can do your offer of proof at the end, and a judge is even going to leave, you’re just putting it on the record. If that happens, you can’t forget that you are going to do that. I think I see that a lot where people you know want to make an offer proof. They want to get this in, and the judge is like, you can do that at the end.

They get to the end, everybody’s ready to go home. They completely forgot that they were going to make an offer proof. So do whatever you have to do to, you know, put a huge star by your closing statement, or whatever you know, whatever’s gonna make you remember, oh, yeah, I have to do my offer of proof.

Spenser: Definitely. Yeah, just do it right then, if you can, if the judge will let you, just do it right after the objection is sustained, and so you don’t forget. But, yeah, you can’t forget. That’s not good at all. But whenever I come to agreement with opposing counsel, not even in a hearing, but just agreements, I always want it read on the record.

I don’t just want to sign a rule 11 agreement and go on our merry way, because I want something that can be enforceable. I want the judge to hear it. I want the record done. But so many lawyers just say, let’s just do a rule of 11. And I always say, I need the record. I need the court reporter. I need everything official. So I just want it read on then.

Holly: So we’ve already talked a lot about objections and keeping things out and whatnot, but I want to shift to the keeping evidence outside and focus on that just a little bit before we wrap up. I think one of the important things you know, as a young lawyer, it’s really easy to be like, have to object to everything that is objectionable. It’s like, I have to show that I know what I’m doing. I have to show that you know nothing that’s bad is getting in. Do you object to everything you think is objectionable? Do you pick and choose? How do you pick and choose?

Spenser: I think you have to pick and choose. I think if you object to everything, first of all, if you’re in front of a jury, if I’m on the jury, I’m thinking, what does this lawyer not want us to know? And it begins a thought process. If you’re on the jury of this lawyer is not being very forthcoming, or they want to keep all this evidence out, and I don’t like that.

And so I think you have to be very careful. Obviously, you don’t want to keep, you don’t want to get evidence in that’s inadmissible or violates the rules of evidence, but you have to pick what you object to. You want to make your objections count.

You don’t want to stand up every two minutes and object. Sometimes, if it’s not going to be detrimental to your case, and it’s not really that big of a deal, you just want to keep it rolling so you don’t go like the bad guy that’s objecting every two seconds.

Holly: I think we’ve all had that attorney on the other side. You never want to see them again in your entire life.

Spenser: Definitely, and there’s nothing worse than having your witness on the stand and you can’t even question them without the attorney objecting for silly reasons. And so I don’t want to be one of those lawyers, and so I just think it’s really important to make your objections count in that way.

When you do make your objections, the judge is most likely going to sustain them. But if you’re objecting all the time, I think the judges have a tendency to split the baby sometimes when it comes to objections. So, they’re not going to sustain every one of your objections and overrule every one of opposing counsel’s objections.

So if you really want to object to something and you really want it out, make sure that that’s like your big objection. You don’t want to object to everything, because I do think sometimes judges have a tendency to make it fair, and you want to make sure you’re playing all the cards right.

Holly: One other thing from an appellate perspective, something that attorneys really need to keep in mind too, like there are some things that you have to object to. You cannot let this in. And it may keep coming up over and over and over throughout the case, and the judge has already sustained your objection in the past, no overruled you in the past.

But you have to keep objecting. And it might, because if you stop, there is no such thing as a running objection. That is not a thing. I see it in transcripts all the time where the judge is like, I’ll give you a running objection to that. Nope. That’s not going to work.

You have to keep objecting every time that comes up or you’re waiving it. So even though there is a inclination of not wanting to piss off the judge and not wanting to look like you’re being difficult, you have to walk that line of some things that are, this cannot get in. I have to object every single time.

Spenser: Definitely, I had that happen recently, too, where the opposing counsel kept saying over and over, you’re an alcohol abuser, you’re an alcoholic, you have mental illness, all that stuff that he’s never been diagnosed with. And so every time that came up, I objected, because I didn’t want the record to have all these instances of an illness that has never been diagnosed and an abuser that’s never been diagnosed.

I didn’t want that to be a part of a judge’s ruling when it’s not even in evidence. And so if it’s not an evidence, you got to keep objecting to it. You can’t let that opposing counsel question your client over and over on something that is not in evidence. And I probably did sound annoying in that hearing, but I kept objecting.

Holly: So what, I’m sure you have a favorite. What is your favorite objection and why?

Spenser: My favorite objection is speculation, because I think it’s so common, and it’s just human nature to ask questions of your witness. What do you think that person was thinking, or why did they do this thing? Just in conversation. But that’s not allowed, and it paints a picture of something that they just have no idea if that’s true or not.

And so I object to speculation a lot. I also object to relevance a lot, if it has nothing to do with the case, or it was from a past court case, if they’re divorced now, and you’re doing the modification, but they’re bringing up all this stuff from the divorce, I’ll object to relevance. And typically that’s sustained because the judge just wants to hear what’s going on right now.

They don’t want to hear stuff from the old case. So relevance is a big one, and then leading your own witness, I think, is also a big one. But that one can get overused, so I don’t use that one as much. I would say speculation. What about you? What are your favorite ones?

Holly: I love the nonresponsive objection. I coach mock trial, and I judge a lot of mock trial, and I’m always telling the kids that I work with, I’m like, nobody ever uses this effectively in mock trial. You need to object to nonresponsive the second they start saying anything after yes or no.

And I do that all the time, but I think this is an example where you have to use it for the important stuff, like if they say yes, I did that. Well, you could object, nonresponsive everything after yes, but it’s really not hurtful. They just added to it. But if they say yes, but I really, I really wanted to do why? And blah blah blah blah blah blah blah, well, you don’t want that getting out.

And so, like, I object as soon as they say, but, or as soon as they start going, you know, saying something that is not a yes or no or whatever is an appropriate response to my question. But I use that a ton. I do also like speculation. As soon as you hear the witness say, I think, I immediately object to speculation, because you shouldn’t say, if you think, you’re speculating.

Spenser: That’s true. That’s very true. Yeah. I like the nonresponsive too, especially I think that comes up when you’re crossing a witness. And you’re, for instance, if you want that witness to agree with you, and you say, you believe that he’s a good dad, don’t you? And she’ll say, yes, but he never went to doctor’s appointments. He never went. I’m like objection, nonresponsive. I just wanted the yes part.

Holly: Yeah, I mean the key is to do it fast so that they don’t get that stuff out there in front of the judge. Because as much as the judges might claim that they aren’t listening to the stuff that’s not admissible, they are human, and they hear it. So don’t wait till they’ve already gotten it all out there and then object as nonresponsive. Cut them off right away.

Spenser: Definitely. That’s such a good point, and the jury hears it too, and they cannot unhear it. And so you have to make those quickly.

Holly: So we’re just about out of time. But one question I like to ask everyone who comes on the podcast is, if you could give one piece of advice to young lawyers, what would it be?

Spenser: I think it would be in. I mean, as far as evidence goes, it would be just be prepared and know the rules of evidence and know what you’re trying to get in before you’re hearing. Don’t just think you’ll figure it out when you get there. You have to know one or two ways to get it in, in case your first way fails. Know how to keep evidence out that you don’t want in. And just know that it takes time.

Evidence is not something that you graduate law school and you go to your first hearing and you just nail it. I mean, I think that with practice and repetition, you get so much better than where you do it and you learn different ways to do it. And so just be patient with yourself and keep learning and growing. But it’s a slow process that you can always get better at.

Holly: So where can our listeners go if they want to learn more about you?

Spenser: So you can go to www.theshapirolawfirm.com, and you can find me there.

Holly: Well, thank you so much for joining us today. Hopefully our listeners got a lot of value out of our conversation. And for our listeners, if you enjoyed this podcast, please take a second to leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by The Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.