Spenser Housewright | Master Evidence Rules for Courtroom Success

Summary

Podcast Summary: Texas Family Law Insiders

Episode: “Spenser Housewright | Master Evidence Rules for Courtroom Success”

Host: Holly Draper
Guest: Spenser Housewright
Release Date: March 12, 2025

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Episode Overview

This episode dives into the essential topic of evidence in family law litigation, focusing on both practical and strategic aspects of getting evidence admitted—or keeping it out—in Texas courts. Host Holly Draper interviews Spenser Housewright, a seasoned family law attorney from Plano, about mastering the Texas Rules of Evidence, authentication, hearsay, business records, text messages, objections, and tailoring tactics to different judges. The conversation is candid and filled with real-world tips, stories, and best practices for attorneys at all experience levels, with particular guidance for young lawyers.

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Key Discussion Points & Insights

1. The Crucial Role of Evidence in Family Law

• Evidence as the Heart of a Case:

  • "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." – Spenser Housewright [00:00]
  • Without evidence, there’s no case. Mastery of rules about admissibility can win or lose a trial.

• Rules Flexibility in Family Law:

  • Judges in family law often have discretion and may relax evidence rules—particularly if it relates to the best interest of children.
  • "Judges are more lenient with the rules of evidence. And ultimately, if they do want to hear something, they'll let it in… because they have to do what's in the best interest of the children." – Spenser Housewright [02:46]

2. Knowing Your Judge and Jurisdiction

• Varying Judicial Styles:

  • The temperament and tendencies of a judge significantly impact rulings on evidence.
  • "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…" – Holly Draper [03:41]

• Being Prepared to Educate the Judge:

  • Sometimes, both attorneys and judges need to reference the rules directly in court. The panel emphasizes keeping rules handy for quick reference.
  • Real-life anecdote: Housewright describes a humiliating experience when attorneys struggled with evidence admission, leading to courtroom embarrassment and client distress [05:40].

3. Strategic Selection of Evidence

• Quality Over Quantity:

  • Attorneys often face time limits (e.g., 20 minutes per side in Collin County). Selection should be purposeful and focused on the ultimate case theme.
  • "You have to pick out the best things. I only put in evidence, obviously, that is going to help my case tremendously." – Spenser Housewright [07:03]

• Avoiding Harmful or Staged Recordings:

  • Caution against using client-provided recordings that inadvertently hurt their own case [08:36].
  • "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." [08:36]

4. Authentication and Admissibility Tactics

• Photographs:

  • Use purposefully—best if demonstrating parental involvement or refuting claims of non-involvement [11:03].
  • Authenticating Photos:
    • Familiarity with the scene and confirming no alteration usually suffices.
    • Housewright recounts a case where a TikTok video was excluded due to improper authentication [13:57].

• Business Records & Affidavits:

  • Business record affidavits are essential, but require strict adherence to timing (must be filed 14 days before trial) [16:28].
  • Even with an affidavit, double-check for hearsay within records.
  • Common uses: medical records, police reports, CPS records. Often prudently supported both with affidavits and live testimony [19:22].

• Text Messages:

  • Technical extraction tools like iMazing produce PDFs with robust metadata for easier authentication [21:38].
  • Important: Screenshots often lack dates/numbers—prepare clients accordingly.

5. Handling Hearsay & Exceptions

• Understanding and Applying Exceptions:

  • Present sense impression, excited utterance, state of mind, and medical treatment are commonly used exceptions [28:46].
  • Business record affidavits don’t automatically cure “hearsay within hearsay”—an area of frequent error.

• Importance of Offers of Proof:

  • If evidence is excluded, always request to make an offer of proof to preserve appeal rights.
  • "If you can't get something in, you have to ask to make an offer proof… you lose your ability to appeal on its exclusion if you do not make an offer of proof." – Holly Draper [31:56]

6. Objection Strategies: Making Them Count

• Pick Your Battles:

  • Over-objecting can backfire—may alienate jury and judge, dilute impact, or result in “splitting the baby” by judges [35:50].
  • Some objections must be made repeatedly for the record, despite risk of annoyance (e.g., repeated improper questions or testimony) [37:46].

• Favorite and Effective Objections:

  • Speculation: Prevents witnesses from guessing about others’ thoughts or intent.
  • Relevance: Useful for excluding old/divorced issues in modification proceedings.
  • Non-Responsive: Powerful during cross-examination to keep testimony tight [39:40].

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Notable Quotes & Memorable Moments

• “Everyone kind of makes fun of me for just trying to prepare so much for [evidence]. But... it can get humiliating if you don’t know how to get it in.” – Spenser Housewright [05:40]
• “Sometimes I’ll have clients give me a recording and... it 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.” – Spenser Housewright [08:36]
• “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... than to have it exclude it altogether.” – Spenser Housewright [31:00]
• “If you can’t get something in, you have to ask to make an offer proof... you lose your ability to appeal on its exclusion if you do not make an offer of proof.” – Holly Draper [31:56]
• “Over-objecting can backfire... the jury’s thinking, ‘What does this lawyer not want us to know?’” – Spenser Housewright [35:50]
• “I love the non-responsive objection... I coach mock trial... and I’m always telling the kids... nobody ever uses this effectively in mock trial.” – Holly Draper [40:45]

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Timestamps for Major Segments

• 00:00 — Importance of Evidence in Family Law
• 03:41 — The Judge’s Role and Knowing Their Style
• 05:40 — Real-World Embarrassment: The Importance of Being Prepared
• 07:03 — Selecting Evidence Under Time Constraints
• 11:03 — The Use of Photographs to Paint Parent-Child Relationships
• 13:57 — Authentication Challenges: Social Media Videos
• 16:28 — Business Record Affidavits: Best Practices
• 21:38 — Managing and Authenticating Text Messages
• 28:46 — Hearsay Exceptions: What Works in Family Law
• 31:56 — Offers of Proof: Preserving Issues for Appeal
• 35:50 — Objection Philosophy: Quality Over Quantity
• 39:40 — Favorite Objections and Tips
• 43:01 — Spenser’s Advice for Young Lawyers

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Spenser Housewright’s Advice for Young Lawyers

"Just be prepared and know the rules of evidence and know what you’re trying to get in before your hearing… Know how to keep evidence out that you don’t want in and just know that it takes time… With practice and repetition, you get so much better the more you do it… be patient with yourself and keep learning and growing." [43:01]

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Learn More

• Spenser Housewright, Shapiro Law Firm: www.theshapirolawfirm.com

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This episode is a treasure trove of practical advice on Texas family law evidence, blending rule mastery, real courtroom stories, and strategic wisdom. Whether you are a new or experienced lawyer, you'll find actionable takeaways to elevate your trial skills and courtroom confidence.

Transcript

[A]

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.

[B]

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.

[C]

Today I'm excited to welcome Spencer Houseright to the Texas Family Law Insiders podcast. Spencer 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. Spencer 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 5 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. Spencer'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 Link. Thank you so much for joining me today.

[A]

Thank you for having me, Hollywood.

[C]

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

[A]

So my name is Spencer Housewright. 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.

[C]

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 and the context of family law.

[A]

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.

[C]

Yeah, the appellate lawyer in the room was like, you can't do that.

[A]

Definitely.

[C]

We 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 100%.

[A]

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 so. 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.

[C]

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 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.

[A]

Definitely. Like, 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'm 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. So.

[C]

So that kind of 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 why you're not. Do you have any tips for people on how to make those types of choices?

[A]

I think, well, like you said in Collin county, specifically for a temporary orders hearing, you only have 20 minutes side. And so a lot of times clients will come to you and they'll give you a hundred pages of text messages, they'll give you a hundred 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? You know, 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 going to be helpful for us. But, you know, other things might not necessarily be helpful for us. So it just depends on your ultimate goal. And you have to know what, what your theme is and what you're trying to prove before you can pick your evidence.

[C]

And I think a lot of times, you know, I, 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, 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. So.

[A]

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.

[C]

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 is screaming and crying and you're sitting there with the phone out taking a recording.

[A]

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.

[C]

Okay, so you've decided what you're going to use and you have, you know, everything ready to go. Let's talk about how we're going to get these particular pieces of evidence in. Obviously you got to lay the predicate. The exception would be if you can get agreements in advance. I, especially in a time crunch, I'm 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 take some of the fun out of it in my mind, and it really keeps, you know, it gives the other, the person who's going to lie a chance to get their story straight about, you know, whatever the text messages were or whatever the case may be. But 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 kind of photos?

[A]

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, you know, 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 questions I ask is, you know, 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 the, you know, 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.

[C]

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

[A]

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, you know, 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.

[C]

I think there's some times when, you know, there's some where people are really not going to object because, okay, it's a picture of dad and kid at the soccer game. Fine. There's 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?

[A]

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 sand 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. They were not able to get in that TikTok video because they used improper witness and couldn't authenticate it.

[C]

Interesting. So. 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.

[A]

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.

[C]

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 workers affidavits can cover that. Talk a little bit about the affidavits, how to get them, the requirements for filing them, all that jazz.

[A]

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 said 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.

[C]

And sometimes, you know, we're talking 14 days before a temporary orders hearing.

[A]

I mean, you might.

[C]

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 you. Your Opposing attorney is easy to deal with. You know, 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?

[A]

I do so if I 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 with 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, you know, 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. If they're the ones that have produced it to begin with.

[C]

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

[A]

So, 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 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.

[C]

Again, good luck. Good luck getting CPS records with MIPS records affidavit if you want to have your hearing anytime in the next 18 months.

[A]

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 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.

[C]

So the next type of evidence is probably the most used in family court, and that would be text messages. The biggest mistake, I think, especially when clients are sending other stuff, is people have, 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?

[A]

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 text messages onto this service and it puts them into a 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.

[B]

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

[C]

So have you ever had anyone object to text messages that were coming through irasing? 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 him on the phone, anything.

[A]

Like that, you know, I have not. And I've used text messages in court so, so often. And I oh, it's funny because I always get the most nervous about trying to get text messages in, but I 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 our 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 I'mazing?

[C]

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.

[A]

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. I Amazing. You know, but yeah, I've never really had an issue getting text messages in as long as, as you know the proper questions to ask your witness and you can question them on. Is this a printout 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 And 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 and I 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.

[C]

See if I'm the opposing side and 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 whole stack of documents. You don't know. They'll make their job easier than it.

[A]

Has to be 100%. 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 going to agree with you a lot more if you direct them that way than if you're going to ask an adverse witness open ended questions. Just cross them into that predicate and it's going to be so much more successful.

[C]

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, what qualifies as personal business records and how to kind of handle that in court?

[A]

So 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 work, 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.

[C]

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? The truth of the matter started. If it's not, it's not hearsay. And you gotta 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?

[A]

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?

[C]

And I see hearsay objections all the time. And it's very. 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.

[A]

Present since impression, definitely. And the business record affidavits, obviously that doesn't protect hearsay within hearsay. And so like you said, the medical records, that's all going to 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 going to come in even if the other side objects to hearsay.

[C]

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 kid 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.

[A]

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. You know, 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, it's going to be great for you, than to have it exclude it altogether.

[C]

Right. So one last thing on the, you know, getting evidence in front, and this is really important for people to remember, is making an offer proof. If you can't get something in, you have to ask to make an offer 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 of 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 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.

[A]

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'd 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 and so that they can hire awesome appellate lawyers like you to don't want to overturn it.

[C]

Yeah, and sometimes I've seen judges who will say, you know, 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, they want to make an offer proof, they want to get the same. The judge is like you do at the end. They get to the end, everybody's ready to go home. They completely forgot that they were going to make it. Offer a proof. So do whatever you have to do to, you know, put a huge star by your closing statement or whatever you, you know, what are they going to make you remember? Oh, yeah, I have to buy for proof.

[A]

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'. Forget. That's not good at all. But whenever I come to agreements 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 right on in.

[C]

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, 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?

[A]

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 look like the bad guy that's objecting every two seconds.

[C]

I think we've all had that attorney on the other side. Never want to see them again in your entire life, because definitely.

[A]

And there's nothing worse than having your witness on the standard. 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. And 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. 1.

[C]

I think 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 or no, overruled you in the past. But you have to keep objecting. And it might, because if you stop, there is no such thing. 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. That they. This cannot get in. I have to object every single time.

[A]

Definitely I had that happen recently too, where the opposing council kept saying over and over, you're an alcohol abuser, you're an alcoholic, you have mental illness, all this 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 the judge's ruling when it's not even in evidence. And so if it's not in 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.

[C]

So what I'm sure you have a favorite. What is your favorite objection and why?

[A]

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, 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?

[C]

I love the non responsive 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 non responsive. The second they start saying anything after yes or no, and that 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 non responsive 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 Y 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 if you shouldn't say I, if you think you're speculating, that is true.

[A]

That's very true. Yeah, I like the non responsive too. Especially I think that comes up when you, at 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, non responsive. I just wanted the Spartan.

[C]

Yeah, he 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 you want to don't wait till they've already gotten it all out there and then object as non responsive. Cut them off right away.

[A]

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.

[C]

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?

[A]

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 wave fails. You know how know how to keep evidence out that you don't want in and just know that it takes time. Like this is not 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 the more 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, it's a slow process that you can always get better at.

[C]

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

[A]

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

[C]

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.

[B]

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.