By Leisa Boley Hellwarth, a dairy farmer and attorney near Celina
They say the older you are the faster time flies. Given that it is now 2019, I am not exactly feeling like a spring chicken. Where did 2018 go? And why are milk prices still so low?
Since we are starting a new year, it seems appropriate to discuss one practice that should be implemented by every farm or business, if they are not already doing it. Create a daily business record that includes basic information of what transpired that day. For instance, what vendors visited the farm? Were there any major purchases? What activities took place? What was the weather like? Did anything significant happen with the livestock or crops?
This record can be handwritten or on the computer; it makes no difference. Choose a method that is convenient and conducive to completing on a daily basis. The important aspect of this is that it becomes a daily business activity, every single day. It need not take significant time; it does need to contain sufficient details.
Now I am fully aware that no one farming has extra time to spend drafting notes about the day’s events. So now she wants me to keep a diary? Farmers, however, have even less time to spend in court, and those who are prepared for litigation are much less likely to ever participate. A a daily business record levels the playing field in the event the farm or business ends up in court.
Anyone who ever watched a legal drama at the movies or on television knows about the hearsay rule of evidence. Hearsay is an out of court statement offered for the truth of the matter asserted. And hearsay is not admissible in court under the Federal Rules of Evidence or similar state court rules. A document is inadmissible hearsay unless it qualifies as an exclusion or exception to the hearsay rule. The business record exception to the hearsay rule is based on Rule 803 (6) of the Federal Rules of Evidence, so long as the business record meets the following criteria, daily business records should be admitted both under Ohio law and federal law.
- The record must be one recorded regularly in a regularly-conducted activity
- A person with knowledge of the act, event or condition recorded must have made the record
- It must have been recorded at or near the time of the act, event or condition; and
- The party who seeks to introduce the record must lay a foundation through testimony of the record custodian or some other witness.
That sounds nice and legal, but why bother? Think about potential issues farmers face regarding manure and fertilizer and potential charges by various governmental entities. Even the best managers can have accidents. I can assure you the report made by the government will likely be admitted under a similar hearsay rule exception for public records or as their daily business record. So long as the farmer regularly documents daily happenings on the farm, the farmer’s records should also be admitted under the business records exception to the hearsay rule. And I can assure you the farmer’s version will be significantly different from the government’s. Remember the scales of justice? The party who prevails in a legal action is usually the one with more evidence that tips the scales in their favor.
Anyone with a farm knows there are multiple potential legal issues that could involve their operation. The daily business record would be useful in almost any scenario that could arise.
As a practical matter, having documentation about the farming operation in chronological order can be useful. Even the best suppliers can make mistakes on statements and invoices. A handy reference of what was delivered to the farm and when can make review and verification of end of month documents easier.
When creating a daily business record, make it a useful document for your operation that does not take long to produce. If you are a computer person, use technology. If you like pen and paper, there is nothing wrong with a small journal that you record the day’s events in. Every farm is different, so the daily business record will be what works for that operation. We live in a time when there is excessive data available. It is just wise to create your own to protect your farm.
The Canadian researcher and inventor, Steve Mann said it best. “What I argue is that if I’m going to be held accountable for my actions that I should be allowed to record…my actions. Especially if somebody is keeping a record of my actions.”
Here’s wishing you high commodity prices and lots of positive events to record in 2019!