Potential Defenses To Lawsuits

Inability Of The Plaintiff To Establish A Case

Case Requirements

If the lawsuit actually goes to trial, the plaintiff has the burden of proof, and cannot get a judgment without adequate admissible evidence to prove the debt is owed. This will require at least one witness to testify under oath and be subject to cross-examination.

Generally, a witness can only testify about matters of his or her personal knowledge - what the witness actually observed - rather than what the witness heard another person say, which is called "hearsay."

An exception to the hearsay rule allows business records to be admitted into evidence in certain circumstances In California, the following criteria must be met in order for a business record to be admitted:

(a) The writing was made in the regular course of a business

(b) The writing was made at or near the time of the act, condition, or event

(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

In some cases, a creditor may have all the billing statements, but may not have any witness who can testify as to how and when those records were made In other cases, a creditor may not have any documentation at all to verify the debt In either of these circumstances, the creditor should lose if the matter goes to trial.