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Evidence, Evidence, Evidence

It is often said that the three most important factors in assessing the value of real estate are location, location, location. Well, the three most important factors in assessing the liability of a case are evidence, evidence, evidence.

What about hearsay – the biggest impediment to introducing evidence? Hearsay, as many of you know, is defined as an out of court statement offered to prove the truth of the matter asserted. That definition opens the door to exceptions and provides fertile grounds for the imaginative lawyer. The first consideration is that, for the most part, hearsay pertains to spoken words. (Non-verbal conduct intended as an assertion is, however, hearsay.) Observations of a testifying witness, therefore, are not hearsay. However, if those observations are instead introduced through a report, the report is itself hearsay.

How then does the aforementioned imaginative lawyer use exceptions? Statements of a party to a lawsuit are admissions of a party opponent and are admissible. (The Federal Rules of Evidence define admissions as non-hearsay but effectively the result is the same.) Other exceptions, numbering almost two dozen, are useful because, if properly used, will result in the admission in evidence of those out of court statements offered to prove the truth of the matter asserted.

Those exceptions, it seems to me (a personal injury attorney in Boston), are grounded in one enduring principle: they have an indicia of reliability such that the admission of such evidence has an element of trustworthiness. Hearsay has to come within an exception as the proffered statement, when made, was neither under oath nor subject to cross-examination.

Defining whether something is hearsay and whether the statement/declaration falls within an exception can be complex. A proper assessment can go a long toward determining whether your case is a winner.

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