About 10 years ago, I wrote a blog post, “9 Things to Do or Consider Before You File a Lawsuit.” Even though it’s been a decade, the points made are all just as timely now as they ever were. In this third post of our nine-part series, we delve deeper into the importance of collecting evidence.
The Importance of Evidence
Evidence is the backbone of any lawsuit because it is your proof. Without it, even the most compelling arguments can fall flat. Evidence serves the purpose of proving the allegations that support legal claims and disprove defenses raised by the opposing party. Collecting evidence early and thoroughly can make the difference between winning and losing a case.
Types of Evidence
There are several types of evidence, depending on the nature of your case. Documentary evidence includes contracts, emails, letters, invoices, and any other written documents relevant to your case. For example, in a breach of contract case, the contract itself and any communications regarding its terms are crucial. Digital evidence can include emails, text messages, and other digital data.
The line between documentary and digital evidence is increasingly blurred. Most paper documents are now scanned into digital files, and evidence like emails, social media posts, and text messages are digital by nature. For instance, in defamation cases, screen captures of allegedly defamatory Internet posts or messages can be pivotal.
Testimonial evidence, on the other hand involves statements from witnesses, including experts, either through affidavits, depositions, or on the witness stand at trial. Witnesses can provide firsthand accounts of events, while experts can offer professional opinions that support your case. The reliability of testimonial evidence often depends on the credibility of the witnesses and the relevance of their testimony.
Lastly, physical evidence includes tangible items that can be presented in court, such as damaged property or clothing in personal injury cases, or, sometimes, auto parts or even a physical vehicle in an auto fraud case. This type of evidence can provide a concrete basis for your claims and leave a strong impression on judges and juries.
In one case in 2019, a woman, Tayla, filed a petition against Kendria, another woman in Coral Springs, for an injunction for protection from stalking. She alleged Kendria had sent her 20 harassing text messages over six months and 15 additional messages in one day, threatening violence against her and her family, and offered ten pages of text messages into evidence. Kendria objected, stating she did not recognize the telephone numbers from which the messages were sent while denying that she sent them. Over objection, the court admitted the messages.
On appeal, the court noted that, in determining whether evidence is sufficient for the purpose of authentication, the trial judge must evaluate each instance on its own merits, there being no specific list of requirements. Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances; it may be authenticated either by using extrinsic evidence or by showing that it meets the requirements for self-authentication.
However, testimony that a person received a text or email from another is not sufficient, by itself, to authenticate the identity of the sender. Other factors, though, can circumstantially authenticate the text, such as when it contains information likely known only to the purported author. On appeal, the court found that the text messages were not sufficiently authenticated, and there was no direct evidence that Kendria had sent them. Given that the text messages were the sole evidence to support the final judgment of injunction, it reversed and vacated the judgment and instructed the court to dismiss the petition. Source: Walker v. Harley-Anderson, 301 So. 3d 299, 304 (Fla. 4th DCA 2020)
Challenges in Collecting Evidence
Collecting evidence is not always straightforward. Ensuring that evidence is preserved in its original state is critical, particularly for digital evidence, which can be easily altered or deleted. Not all evidence will be relevant to your case, so it’s important to focus on evidence that directly supports your claims or disproves the defenses.
Even relevant evidence must be admissible in court, though, and meet certain legal standards and being presented in a way that complies with court rules. One key aspect of admissibility is authentication. According to section 90.901, Florida Statutes, authentication, or identification, of evidence is required as a condition precedent to its admissibility. This means that a writing, recording, or photograph is not automatically presumed to be what it purports to be but must be “authenticated” before it can be admitted into evidence. Authentication requires presenting evidence sufficient to support a finding that the item is what the proponent claims it is. This could be as simple as a person on the witness stand identifying a piece of evidence, stating what it is, and agreeing that it is a true and correct copy. With digital evidence, it is best when possible to preserve it in its original, or native format, to maintain data integrity and authenticity.
Moreover, the process of collecting evidence must be done legally and ethically. For example, recording conversations without consent can violate privacy laws.
Tips for Effective Evidence Collection
To effectively collect evidence, follow these tips:
- Act Quickly: Start collecting evidence as soon as possible. The longer you wait, the higher the risk that evidence will be lost or altered.
- Be meticulous: For text messages, it is imperative that screen captures of messages are complete and include dates and times. Do not put any writing, staples, sticky notes, or highlighting on your text messages. Note the phone number and name of all parties to the message. Do not leave gaps or breaks between messages, and include the entire text message.
- Be thorough: While you do not need to give your attorney every single text message in your phone, do provide those that may be relevant and do not withhold texts that the opposing side may use.
- Organize: Keep your evidence well-organized. Use folders, labels, and logs to track what you have and where it came from.
- Backup: Make copies of all evidence, especially digital files. Store backups in a secure location.
- Consult Experts when Necessary: For complex evidence, such as technical data or entire hard drives, consult with experts who can help interpret, extract, and present the information.
Conclusion
Collecting evidence is a critical step in building a strong legal case. Whether you’re dealing with documents, physical items, digital data, or witness statements, thorough and methodical evidence collection can greatly enhance your chances of success.
Stay tuned for the next post in this series, where we will explore how to effectively gather and manage witnesses. If you need assistance in collecting and organizing evidence for your case, contact our office at 407-965-5519. We’re here to help guide you through the complexities of the legal system.
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