01/20/2014 03:37 pm ET Updated Mar 22, 2014

Meeting Notes and the Hearsay Rule

Imagine an individual in an enclosed room with no view of or access to the outside. A person comes into the room, says "It is raining outside," and then leaves. Subsequently, yet another person enters the enclosed room and asks the first individual "What is the weather outside?" The individual replies "It is raining." Questioning the responding individual will not disclose if the person who said that it is raining outside is lying, never looked outside, is biased, delusional, or blind. This simple illustration reveals the basic problem of hearsay. Yet, we constantly rely upon hearsay in our daily lives. The legal system has created numerous exceptions to the "hearsay rule." In essence, the hearsay rule prohibits the introduction at a trial of secondhand evidence that is not directly experienced or known by the witness. This comment briefly discusses meeting notes in the context of the hearsay rule.

Allegations may be made that in a private setting one person told another person something. Subsequently, the person who allegedly made the statement denies that she or he ever said it. May the individual who asserts that the statement was made utilize as evidence at trial her notes of the meeting to add credibility to her assertion that the statement was in fact made?

Diaries were traditionally not admissible into evidence. Occasionally a diary would be admitted into evidence when the person making the entry was unavailable to testify and the court determined that there was a reasonable probability that the diary statements were true. Business records, however, were routinely admissible as shop books.

Federal Rule of Evidence 803 lists exceptions to the hearsay rule. One exception involves "recorded recollection" when the witness once knew something but now "cannot recall well enough to testify fully and accurately," the record was made when the matter was fresh in the witness's mind, and the record accurately reflects the witness's knowledge. While courts are divided on the necessity of the first requirement concerning memory, there is concern that a record might be made after the fact in contemplation of litigation.

Another Rule 803 exception is "records of a regularly conducted activity." This record is one created near the time of the event "in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit" and "making the record was a regular practice of that activity."

Federal Rule of Evidence 803 lists more than twenty exceptions to the hearsay rule. Rules of evidence are complex and cannot be fully addressed in a few paragraphs. Nevertheless, here are several broad generalizations. If one is inclined to make notes of meetings, it is best to do so as a matter of routine on a regular basis. These notes should be stored in more than one secure and tamper-proof location and format. If handwritten notes are transcribed, keep the original handwritten copy. Failure to keep the original notes, regardless of the format, may create additional problems under the "best evidence rule," Federal Rule of Evidence 1001 and following. Ideally, although this may not be possible, the parties to the meeting should verify by individual signatures that the notes are a complete and accurate record of the meeting. Best practice is to consult an attorney before undertaking routine note taking to be certain that the notes are more likely than not admissible in evidence at a future date.