Forget what you've heard about hearsay

By Laura Pollard | Oct 23, 2014

WHEELING – Evidence was a class I enjoyed in law school. I think a lot of that was because I really liked my professor.

WHEELING – Evidence was a class I enjoyed in law school. I think a lot of that was because I really liked my professor.

Also because the class was in the afternoon, and I am not a morning person.

But one of the real reasons that I enjoyed Evidence class was that a lot of what we discussed in the class was familiar to me even before I grappled with the subject matter or read the cases or rules we studied in class. I recognized many of the words and phrases we were studying.

As a "Law & Order" enthusiast for many years before law school, I'd heard Sam Waterston yell "objection!" more times than I could count. I'd heard him accuse the defense of "badgering the witness" and I'd heard him question the relevance of testimony. But more than anything, I heard about "hearsay."

Now that I am a practicing attorney, I realize that many clients must have also heard about hearsay just as much as I had. Particularly when preparing for a deposition, or answering written discovery requests, clients will often worry about their ability answer a particular question, because the only information they have was learned from another person, or was hearsay.

This is a very valid question for a client to have, and I am always glad that people ask.

The good news for clients is that you don't have to worry too much about whether something is hearsay or not. We, as lawyers, get to worry about that for you!

Nonetheless, it can often help ease the uncertainty that comes with answering discovery or having your deposition taken to have a little better understanding of what hearsay means and the role it plays in a lawsuit.

Hearsay is an out of court statement offered into evidence to prove the truth of the matter asserted. What does this mean? Well, most importantly, it means that the lawsuit is at the trial stage.

Hearsay is one of the many topics addressed in the Rules of Evidence. Rules of Evidence do not apply to the discovery stage of a lawsuit, including written interrogatories, requests for production of documents, and depositions.

One of the most important differences between the Rules of Civil Procedure and the Rules of Evidence is that the Rules of Civil Procedure that govern discovery proceedings allow for a much broader scope of topics and information to be discussed. Just because something is discussed during discovery part of a lawsuit does not mean it will be able to be introduced as evidence at the trial of that lawsuit.

Hearsay is a great example of that.

If you are involved in a lawsuit, questions you may be asked in written discovery, or during a deposition, may be about what another person told you. You will likely be asked things like "what did your mother tell you when she got back from the doctor?" or "what did the driver say when he got out of the car?"

If you are thinking that these statements are hearsay, you are not far off. They are statements, made outside of court, and such a statement may not be able to be discussed at trial, on the grounds that it is hearsay.

But during a deposition or when responding to an interrogatory, these are acceptable questions, and you can answer them without worrying that you have violated a rule.

You may wish to clarify that your knowledge is second-hand, or that you only learned certain information from another person, but you won't have to worry about Sam Waterston jumping up and yelling "objection, hearsay!" at you.

If the lawsuit does reach the trial stage, hearsay will become a factor, which will guide what evidence, including deposition testimony or written discovery responses, will be admitted into the trial for the jury to consider in deciding the case.

At this point, the lawyers representing the parties in the cases may seek to have certain evidence excluded or admitted, and may use the hearsay rule and its many exceptions to make these arguments about the admissibility of the evidence.

Ultimately, the judge will decide whether the evidence is hearsay or not, and whether it will be permitted in the trial.

Hiring attorneys who are experienced in every stage of a lawsuit, including discovery proceedings and representing clients at trials, is one of the most important decisions you can make about your case.

Pollard is at attorney with Bordas & Bordas in Wheeling.

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