Evidence in Court: How to Prepare Your Case

Josep Conesa. employment lawyer (Barcelona)

Written by Josep Conesa

Employment and insolvency lawyer

One day, a lawyer from our office walked into my room, someone with whom I have shared fifteen years of professional highs and lows, and said to me:

- Josep, I don't believe in justice.

For a lawyer, hearing that is rather like a chef being told that flavour doesn't exist in the food they cook. Taken aback, I asked:

- After all these years as lawyers, how can you say that to me, J.P.? I never expected this from you. What do you mean you don't believe in justice, isn't that what we work towards every single day?

His reply came without a moment's hesitation, which told me he had been sitting with this thought for days:

- I don't believe in justice. What I tell clients is this: if you want justice, bring me evidence. Give me evidence and I will give you justice.

That small exchange has stayed with me ever since, and I share it here as a word of advice to clients, friends, and to you, the reader: lawyers work infinitely better when they have evidence. Your lawyer will be enormously grateful for it, and if we are your lawyers, even more so.

Winning a case requires three things, in this order:

Being in the right (this is down to the client)
Proving you are in the right (this is our job as lawyers)
Being found to be in the right (this part depends on the judge)

Evidence is therefore, by a considerable margin, the most important tool for achieving justice.

Today, gathering evidence has become easier thanks to new technology. Let us look at the types of evidence available to clients and how to use them effectively:

Documentary
- Private documents: any document obtained by the party themselves (I recall a waiter who, to prove he had worked overtime, submitted records from a running app that placed him at the bar-restaurant's terrace at the relevant times).
- Public: a notary can certify a situation. They may even be requested to attend a location in person to attest to whatever is required (one case comes to mind where a notary was called to certify that a pet owner's property was clean and well-maintained).
Recordings of:
- Audio: audio recordings are admissible, and all conversations between the claimant and the defendant (between the company and the employee, for example) are valid evidence.
- Video: with or without audio, though the fundamental right to privacy must be respected, recordings must not cross that boundary (in the Casino La Toja ruling of the Constitutional Court, for example, evidence was ruled inadmissible because, in addition to the video footage, private conversations between the croupier and the customer had also been recorded).
Witness testimony: it is advisable to bring all those who can explain the facts of the case before the court. The lawyer may ask the judge to formally summon them, requiring their attendance on the day of the hearing.
Expert evidence:
- Subject-matter expert: anyone with in-depth knowledge of the matter under consideration may prepare an expert report and ratify it at the hearing by answering questions put to them.
- A private investigator: strictly speaking, this is more of a qualified witness than an expert, but their testimony is valid as evidence and is supported by a written report which they also ratify.