Tennessee Evidence Law: A Few Basic Rules Helpful to Clients

Whether you are involved with a breach of contract case, will dispute case, real estate case or any type of commercial litigation case in a Tennessee court, you can help yourself by knowing a little about the basic rules of evidence that apply in Tennessee state court cases. In my experience, many clients assume that some piece of evidence will be admissible at trial when it will not be admissible.

The Tennessee Rules of Evidence act like a filter. While there may be all kinds of statements and documents related to a dispute, the odds are that some, even many of those statements and documents, will not be admissible at trial. They get “filtered” from the courtroom by the Tennessee Rules of Evidence. Here are a few basic rules of evidence in Tennessee of which it would behoove any party to have at least passing knowledge.

FIRST-HAND KNOWLEDGE: In order to be allowed to testify about a matter, a witness must have first-hand knowledge of the matter. Let’s assume there is a breach of contract case in Tennessee in which Defendant contracted to provide computer programmers to Plaintiff for work on a project which was the subject of a separate contract between Plaintiff and its client (“Client”). The programmers worked on-site with Client and directly under Client’s supervision. The programmers, according to Client, did not have adequate experience or skills and performed inadequately. Because of that, Client cancelled the contract between it and Plaintiff which resulted in Plaintiff losing substantial profits.

If Plaintiff was not on-site to observe the performance of the programmers, then, regardless of what Plaintiff has been told by Client, it does not have first-hand knowledge on the matter of the performance of the programmers and cannot testify on that matter. If Plaintiff wants to win its breach of contract case, it will have to have Client testify at trial (which it may not want to do to avoid entangling its client in litigation).

HEARSAY: It would probably take ten blogs to give even a “Readers Digest” overview of how the hearsay rule and the many exceptions to it operate in Tennessee. Hearsay includes both oral and written assertions, including emails and letters. Clients sometimes tend to believe that hearsay just means things said. If something was said or written out of court, which will be everything said or written before trial, it is probably hearsay. Hearsay is not admissible at trial unless there is an exception allowing its admission.

There are at least twenty-six (26) categories of hearsay exceptions in Tennessee. The exceptions that I seem to use quite a bit at trial are the party-opponent admission exception; the “business records exception”; and the recorded recollection exception. In Tennessee, generally, anything said or written by the other side is admissible as a “party-opponent admission.” So, Plaintiff, or a witness, can always take the stand and testify to the statements the Plaintiff or witness claims were made by Defendant. Likewise, Defendant, or any other witness, can testify about statements made by the Plaintiff.

Under the business records exception, generally speaking, the records of any business or organization which regularly keeps the kind of records which are sought to be admitted are admissible. The recorded recollection exception to the hearsay rule permits a witness to read into evidence at trial a letter, email or memo the witness wrote if the witness does not remember (has “insufficient recollection”) of the matter about which he wrote.

SETTLEMENT NEGOTIATIONS AND OFFERS TO SETTLE: These are not admissible at trial. If you or your lawyer sends a letter to the opposing party offering to pay it $100,000.00 to settle the lawsuit, that letter is not admissible at trial. Nor can the opposing party testify at trial that you offered to settle for $100,000.00. (If the party did that in front of a jury, the trial judge might well call a mistrial). Anything said in settlement negotiations is not admissible at trial. So, whatever you say to a mediator in mediation is not admissible at trial. Ditto for offers made in mediation.

CRIMINAL CONVICTIONS: In some cases, prior criminal convictions can be used as evidence at trial. In Tennessee, only evidence of felony crimes or crimes involving “dishonesty or false statement” can be admitted into evidence and then, only if they are less than ten years old.

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