22.6 Special Evidentiary Issues

• Library: Virginia Construction Law Deskbook (Virginia CLE) (2019 Ed.)

22.6 SPECIAL EVIDENTIARY ISSUES

22.601 In General. While a full treatment of evidence issues is beyond the scope of this discussion, some of the special evidentiary issues that often arise in construction litigation are highlighted here. Full exploration of the application of rules of evidence to a particular case requires fact specific research.

22.602 Foundations for Admissibility. The nature of construction litigation demands that the attorney be able to identify and present the foundation necessary to establish the admissibility of every fact and document that will be used in the case. Thought must be given to which witness will be used to provide particular testimony and what foundation is necessary to make that testimony admissible. Similar thought must be given to each document the attorney seeks to introduce in evidence. The simplest approach to developing foundations is to assume the role of the opponent: What objection would opposing counsel make to the admissibility of the testimony or document, and how might that objection be overcome?

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22.603 Hearsay. Construction litigation is replete with hearsay problems. Hearsay has been defined in many ways, but in its simplest form it is a person testifying to an out-of-court statement by another person, offered in evidence to prove the truth of the matter asserted. Every experienced construction litigator has heard some variation of "I heard the site super intendent say he was told by the carpenter that the plumber told him the reason for the delay was the electrician, not the owner." For the owner defending a delay claim by the general contractor, that is very desirable evidence. In determining how to get that evidence admitted, the basic hearsay restrictions must be kept in mind.

Cases and treatises dealing with hearsay rules and exceptions to the hearsay rules are abundant. An attorney faced with the type of evidence postulated above has to investigate how close to the source the statement can be traced. If the statement cannot be traced to the source, the hunt begins for an exception that might make it admissible under whatever facts can be developed. It is important for counsel not to assume that the hearsay statement will be admitted in evidence; likewise, counsel should not assume that a basis for getting it admitted into evidence cannot be developed. The attorney should frequently refer to Rule 2:803 of the Virginia Rules of Evidence, which addresses multiple recognized exceptions to the hearsay rule.

22.604 Best Evidence Rule. The best evidence rule has long standing common law roots. Essentially, it requires that to prove the contents of a document, the original must be produced unless the proponent can prove that the original is unavailable. If the original is unavailable, other evidence of its contents, such as a copy, may be admitted. ³⁴ If a copy can be shown to be a duplicate of the original, the copy may be admitted without regard to the availability of the original. ³⁵ Copies are so prevalent in construction litigation that it is rare to encounter even the pro forma question whether the document is a true copy of the original. Nevertheless, a witness should be prepared to testify to that fact if the objection is raised. The best evidence rule is the topic of Article X, Rules 2:1001 through 2:1008 of the Virginia Rules of Evidence. Various circumstances in which copies may be admitted in evidence, whether as official government records or private business records, and the foundations required for their admission are set forth in section 8.01- 391 of the Virginia Code and in Rule 2:902 of the Virginia Rules of Evidence.

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Further guidance concerning what is deemed to be a business record and such a record's admissibility is found in Rules 2:803 and 2:902 of the Virginia Rules of Evidence.

The best evidence rule in construction litigation is most commonly invoked when a witness is asked to refer to and read a particular portion of a document that has been admitted in evidence and the objection is asserted that the document itself is the best evidence of its contents. The proper response is that the best evidence rule applies not to the testimony of a witness from a document but to admissibility of the document, and the document in question already has been admitted in evidence. The extent to which a witness is permitted to refer to a document is in the discretion of the trial judge, ³⁶ but it is specifically permitted under Rule 2:106(b) of the Virginia Rules of Evidence. Preparing the document so that it will be readily available for viewing by screen projection or other means without delaying the proceedings is very helpful in convincing the trial...