For the most part, evidentiary rules aren’t all that complicated. There is a natural logic to them that, with time and experience, comes into focus and becomes instinctive. But as the saying goes, the devil’s in the details. It’s not the rules themselves that trip us up—it’s the exceptions. Endless, often seemingly illogical exceptions. And because you may only use them once in a blue moon, they’re harder to remember. We each develop tricks for remembering them, but there are a few tried-and-true methods, like mnemonic devices, that can help. So now, for your viewing pleasure, here are a few original poems to help you remember some key hearsay exceptions.
I wasn’t asleep—
just resting my eyes.
and I heard you whisper
“I love you,” and sigh.
The next day on Facebook,
to my dark despair,
you denied your feelings,
and claimed not to care.
So in my defense,
to your deep consternation,
I publicly shared
your midnight lamentation.
“That’s HEARSAY”!” you snapped,
in the midst of our fight.
“It can’t be considered
to prove that you’re right!”
It might seem at first
that the quote was hearsay,
but what’s important is
what those three words convey.
Love’s an emotion.
A feeling. A state.
It’s what’s in your heart
that those words demonstrate.
So while I see your point
and respect your position,
professions of love show
then-existing condition.
The business records exception is one you’ll encounter more often, especially in civil cases. It’s practical, reliable, and—thankfully—fairly straightforward. But like all exceptions, it has its quirks. So, to keep it memorable, here’s a quick rhyme to help it stick.
"Hearsay!," you shout,
as the papers are offered.
"They don't have the witness
by whom they were authored!
"Au contraire," says the judge,
"Though it looks like hearsay,
you’ve missed the exception
that will win the day.
"These records were made
by somebody who knew.
Right away—just as she was
required to do.
"It's always her task
(when she's not on vacation)
as that job has required
since your incorporation.
"So while you seem sure,
and despite your objection,
these docs must come in—
Business Records Exception!"
As you may have guessed, these poems aren’t intended to be memorized. They are designed to help solidify the rules in both the reader’s and the author’s minds. The creation process helps it stick in the writer’s mind as well. But don’t take my word for it! Try creating your own and sharing them with us on Twitter @judgefergusonTX. And now I’ll leave you with this Valentine’s Day poem I composed for the Texas Supreme Court:
Roses are red.
My ruling won’t stand.
You’re free to reverse,
just please don’t remand!
