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hey guys welcome to this video my name is john watts i'm a consumer protection lawyer we want to look at a couple rules of evidence specifically rules 601 and 602 and these have to do with witnesses and that would include a party who testify have to have personal knowledge okay and how does this work in a debt collection lawsuit context so let's take a step back what are the the purposes of the rules of evidence and this is what alabama rule of evidence 102 and everything i'll be looking at will be the alabama rules of evidence but says these rules shall be construed to secure fairness and then look at the highlighted part to the end that the truth may be ascertained and proceedings justly determined so let's just summarize that it's to make sure that trials are fair and that the truth is reached so let's look here at the actual rules so alabama rule of evidence 601 every person is competent to be a witness except as otherwise provided the reason that this is worded this way is in the past there were certain groups of people who were considered incompetent to testify so for example spouses could not testify against each other but now this is saying the presumption is everybody is competent is able to testify unless there's something in the rule well let's look at the very next rule rule 602 a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter and then that can come from the witness's own testimony and if you look at the right hand side of the screen the comments to the alabama rule of evidence 602 and the comments really sort of flesh out or help explain what's the the idea behind this rule so it says this is unchanged from the federal rule of evidence 602 and it embodies the traditional first-hand knowledge requirement under which a witness is precluded from testifying to matter about which the witness lacks a first-hand or personal knowledge of the facts so before the witness can testify a foundation must be established to indicate the witness was in a position to observe and not only in a position to observe but did observe those facts so let's look at a couple examples and we'll have a total of four examples and then i'll tell you at the end if you want me to use some other examples maybe that you're dealing with i'm happy to do that so these are all in blue highlighting number one the question would be presented to you at trial you opened up this credit card account okay whatever it is chase capital one bank of america whatever it is well let's think about it 601 says you you are competent to testify unless there's a rule of evidence that holds otherwise okay so you should be able to answer this question rule 602 says you have to have personal knowledge about this so the kind of the mental thought process would be well do you have personal knowledge of whether you open the account so this is not asking if somebody else opened the account or somebody else owes the debt this is saying you open this credit card account well you're under oath okay and the judge is evaluating your credibility and i would say that most of us we are going to know whether or not we opened up a credit card account so if you're asked that question you say i have no idea judge is going to be a little skeptical of that unless there's a very good reason for saying that i mean you should know whether you opened up a credit card account in your name so let's look at second example you admit that you charged on this account and you owe 3467.91 in principal interest and late charges well again we start with the foundation 601 says you're competent unless otherwise 602 says you have to have personal knowledge so do you have personal knowledge of the amount of the charges now you may have incurred all those charges but do you personally know the amount probably not do you know what the interest rate is from the beginning of the account to the moment that you're there in the courtroom or at least through the time that they charged interest which may be trying to get it there at the courtroom but probably not do you know the calculation you know was it 17.97 percent and and what was the daily balance or the monthly balance or how is the interest applied is that on a monthly basis a daily basis do you know the calculation if you do then testify if you don't then rule 602 would say we're not supposed to testify about that so how about the amount of late charges allowed under the contract do you know that is it 15 a month is it 35 can you still be charged late charges after the account is charged off how about interest after the accounts charged off do you know that under the contract how about the calculation of the late charges and take that dollar amount that the question asks you three thousand four hundred and sixty-seven dollars and ninety-one cents and remember the company suing you has to prove that you owe this amount of money well do you know how that's broken out in the principle and interest and late charges if you do testify if you don't then you would not be in a position where you would have personal knowledge to be able to testify about it let's look at two more examples you admit midland funding owns the debt after it bought it from the credit card company whoever that might be j synchrony bank whoever well again 601 says you're competent unless you're not 602 says you have to have personal knowledge so here's a question and remember debt buyers have to prove that you owe the debt and that's what these two slides or these two questions on this previous slide were about to have to prove that you owe the debt and that they own the debt because you didn't take out a debt with midland funding or portfolio recovery or calvary or anybody else so you admit midland funding owns the debt after it bought it from a credit card company do you have personal knowledge of whether midland funding bought your old credit card debt do you know that that's true now if you do then you can answer if you don't what would you say what would be the truthful answer to the question you admit midland funding owns the debt after it bought it from the credit card company and you have no idea if that's true you have no personal knowledge what would be the truthful answer well i can tell you what my clients will say which is i have no idea i don't know because they don't know they have no personal knowledge about this so what about this last question this affidavit from the original creditor to again it could be chase or synchrony bank whoever your credit card company was that says we bought the loan and all the records are 100 accurate proves that portfolio recovery bought your debt well again 601 says you're competent unless you're not 602 says you have to have personal knowledge so do you have personal knowledge of who signed the affidavit can you even read the name who notarized it do you have personal knowledge of that do you know what the affidavit is legitimate or not legitimate did anything happen after the signing of the affidavit in other words i i've owned several houses in my lifetime i could say you know on this date i bought this house in chelsea alabama well does that mean i still own it well i actually don't own it because i sold it okay something happened after i bought it so do you know if anything happened after the signing of this affidavit and does a purchase agreement contradict the affidavit so remember the affidavit says all the records are 100 accurate but does the purchase agreement down here say by the way we make no representation that any of the records are accurate well that would be important to know wouldn't it do you know that well if you don't know this information then how would you answer this question and again all i can tell you is how my clients have answered this in trial which is say no i don't know that this affidavit proves that that your company or your client bought the debt i have no idea and they say well it's right here in black and white well i see there are words on a paper but i have no idea if this is truthful or not so i hope you found this helpful let me give you a couple of sort of closing thoughts here if you know somebody that's dealing or maybe about to deal with the debt collection lawsuit and you think this would be helpful feel free to share it with them if you are not already subscribed if you like this video just click subscribe and we put out videos every day and hopefully you will find those just as valuable as this one and this last thing is sort of my request to you if you have questions that maybe you've been sued or you're worried about being sued in a debt collection lawsuit and are there questions you've been asked or that you're worried or concerned about being asked and like well how how would these be answered i mean would i have personal knowledge of that or not if you want to put those in a comment and the ones that i can i'll do a supplement or a follow-up video to this and we'll just kind of walk through it and look it's a kind of a methodical process just like we've done on these slides where we say okay are we competent then do we have personal knowledge and we just ask ourselves sort of like every piece of evidence of that question do i have personal knowledge of this if i do then i can answer the answer might be yes or no if i don't then the answer at least my clients give is i have no idea i don't know okay and so feel free to put those in the comments one thing because i get a lot of people reaching out to me calling my office or sending me emails saying hey i need to talk to you about this upcoming trial i have in minneapolis or in chicago here's the thing i only represent consumers who are sued in alabama okay every state is different you have to look at your own rules of evidence the way that courts interpret things so if you're in alabama i'm happy to talk to you unless you already have a lawyer but if you're outside of alabama in this context i really can't talk to you because it just doesn't first of all i'm not licensed in your state and this is a very local thing it's different if you are coming to me saying hey i want to sue portfolio recovery well we can sue them anywhere including in alabama in other words they can be sued in any state in the nation and that would include alabama where i'm licensed so i can sue them in alabama or i can co-counsel with the lawyer in your state but on these debt collection cases this is so local you've got to get with a lawyer in your state who has experience defending these and somebody that's willing and able to answer your questions and then particularly if you're doing this on your own you really need to understand the rules of evidence in your state and keep in mind that's just a part of preparing yourself for trial and we have other videos about other things to do but i hope that you found this helpful and i will talk to you guys tomorrow okay have a great day bye-bye