Legalese,  Tips N Tricks

Where’s the Proof!

As a divorce lawyer, “Where’s the proof!” (or something like it) was a refrain you could often hear coming from my office as I read through an opposing counsel’s argument. 

Divorce law gets a bad rap.  Some divorce cases are little more than highly paid mudslinging.  Like any other area of law, divorce law done well is one part courtroom oral advocacy skills and two parts well-researched and fact-driven written argument.  In an arena where many cases devolve into “he- said/ she- said” a good divorce attorney will work to support her client’s case with documents, expert testimony, and non-biased testimony. 

Any attorney who spends time in a courtroom must be one with the rules that govern how evidence is presented to the judge or jury.  The Rules of Evidence are these rules.  When an attorney cries “I Object!”, she is telling the judge that testimony or evidence violates one of these rules and should not be heard or admitted.  The Rules of Evidence embody the idea that some forms of evidence are less reliable, more prejudicial, or just not relevant to making a determination, and should therefore, be excluded. 

Hearsay is one of the fundamental evidentiary rules (it’s really a series of rules).   There are nuances and exceptions to the fundamental rule, but the basic rule is that hearsay is not admissible.  If for some perverse reason you want to know more about hearsay and its exceptions check out this great summary

What is hearsay you ask?  That my friend is a question that has plagued many a law student and attorney from time immemorial.  In a nutshell, secondhand testimony, meaning the witness didn’t personally observe or hear what they are testifying about, should be excluded from court. The idea behind the rule is that if someone didn’t personally witness or observe something they really shouldn’t be allowed to testify about it.  

Genealogy is not all that different from the law. 

The Genealogy Standards, which is the benchmark by which professional genealogists formulate their work, were originally based on the legal “preponderance of evidence” standard of proof

As with law, genealogy done well requires facts supported by evidence.  Some genealogical sources are more reliable and more relevant than other sources. 

What is the genealogical equivalent of hearsay?  You guessed it, secondhand accounts. Secondhand sources, like family stories, family trees created by others, and even some of the genealogy books that may have been passed down in your family are like”genealogical hearsay”.  They may be a good way to start you on your journey to find your ancestors, but they are not  good evidence. 

As I’ve discussed in other posts, just because a document is an “official document” doesn’t mean it is not secondhand.  Death certificates come to mind.  The dead person didn’t fill out the certificate, did they?  No, because their dead. Someone else filled it out. The person completing the certificate may be misinformed or uninformed about important dates and information in the death certificate. 

Sources like marriage applications, social security applications, immigration records (some) and other records requiring the applicant to provide information personally are often the best and most reliable sources of genealogical information.  

So good genealogy requires good evidence.  Don’t substitute a good story for good research. 

So, this is where I have an admission to make. 

On occasion….my posts are more bun than beef.  Get it? “Where’s the beef”? Bun = genealogical hearsay; small beef patty = short of reliable facts.

In an attempt to relate an idea or concept, some posts have relied more on secondhand sources than on primary materials.   

In honor of my favorite fact-checking website, I will be posting “Genopes“, posts that focus on fact-checking the secondary sources that serve as the basis of posts, particularly those posts about my own genealogy.  

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