New Lawyers: HOW TO AVOID A “LACK OF FOUNDATION” OBJECTION

    Going to trial can be scary.  Wanting to win for your client combined with your ego not wanting to be embarrassed  can be a huge source of stress and anxiety.  This stress can skyrocket when you are in trial, attempting to get a document into evidence and your opponent objects--lack of foundation.  Here is how you overcome that objection in trial (or what you should have done before the trial started).

1.  First, the document must be authentic i.e., the document is what the you claim it is i.e., how do you show the court that this is the 2010 contract between your client and Acme, Inc.

A. Before Trial.  

1. You could attach it to your complaint and in one of the allegations (which is in it’s own paragraph) say “A true, correct and authentic copy of the 2010 contract between client and Acme is attached hereto, labeled Exhibit 1, and incorporated by reference herein.” If the answer to your complaint admits that allegation, your opponent has admitted that the contract is authentic.

2. In discovery, you could send a request to admit that says “A true, correct and authentic copy of the 2010 contract between client and Acme is attached hereto, labeled Exhibit 1.” If your opponent’s response to that request is “Admit,” your opponent has admitted that the contract is authentic.

3. In Nevada, if your opponent failed object to admissibility and state the grounds within 14 days after you sent him or her trial exhibits pursuant to NRCP Rule 16.1(a)(3), then any objections are deemed waived unless excused by the court.

4. Usually the rules or court order or just cooperation between counsel requires a meeting to see what stipulations as to admissibility of exhibits can be reached. The general rule is to stipulate to:

     a. documents your client signed,

     b. documents your client does not deny he or she received, 

     c.  documents that don’t hurt your case.

5. If you and your opponent stipulate to admissibility, you don’t need a foundation.

6. Sometimes counsel will stipulate to authenticity, but not relevance. Thus the court has to decide if the document is relevant (NRS 48.025/FRE 402).

B. During Trial.  Always know how to lay the foundation to prove that a document is authentic during trial because authentication or identification is required. (NRS 52.015/FRE 901).

1. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims.

2. The provisions of NRS 52.025 to 52.105 [FRE 901(b)], inclusive, are illustrative and not restrictive examples of authentication or identification which conform to the requirements of this section.

3. Every authentication or identification is rebuttable by evidence or other showing sufficient to support a contrary finding.

4. All you need is a witness with personal knowledge.

     a. The testimony of a witness is sufficient for authentication or identification if he has personal knowledge that a matter is what it is claimed to be. (NRS 52.025/FRE 602).

     b. Your client must testify that the document is what you are claiming it to be.  When your client is on the stand, say “I am handing you what has been marked as proposed exhibit 1 which purports to be a 2010 contract between you and Acme.  Is that what it is?” [technically, this is leading but it is background and usually admissible].  If there is an objection that is sustained to that question, you ask “what is proposed exhibit 1.”

2. Next, the evidence must be relevant.

A.  “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. (NRS 48.015/FRE 401).

B. All relevant evidence is admissible (NRS 48.025/FRE 402), except:

     1. As otherwise provided by this title;

     2. As limited by the Constitution of the United States or of the State of Nevada; or

     3.  Where a statute limits the review of an administrative determination to the record made or evidence offered before that tribunal.

C. Evidence which is not relevant is not admissible.

D. Evidence which is relevant may be excluded on grounds that the probative value is outweighed by prejudice, confusion, delay, waste of time. (NRS 48.035/FRE 403).