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When the other party speaks, we all should listen


In past blogs I’ve discussed important issues relating to evidence. The arguments about evidence, and the admissibility of certain documents and/or testimony can make or break a case, especially a serious personal injury case. I think I can say that with a fair degree of confidence based upon my experience, now approaching almost four decades of doing just personal injury work.

One of the most important evidentiary provisions is an exception to the hearsay rule, admissions by a party opponent. (Technically, some jurisdictions treat admissions as non-hearsay. This is the way the Federal Rules of Evidence have handled admissions since those Rules were adopted by congress in 1975. See also Massachusetts Guide to Evidence 801(d)(2) which alters Massachusetts practice to define admissions as non-hearsay.) I’m confident in telling you that any statement – I’ve even corrected at least one Superior Court judge on this- out of the mouth of the defendant or the defendant’s representative will be deemed an admission by a party opponent. It’s not just things that are inculpatory, i.e. things that make the defendant appear wrong, it is any statement out of that person’s mouth.

That leads to wonderful things. If you should learn of a statement like that, whether it’s inculpatory or exculpatory, and you have an opportunity (at the scene) or your lawyer has an opportunity in the course of the litigation to question the defendant about that statement, you can ask the defendant to elaborate. What did he/she mean by that remark? That’s fair game. Any elaboration may allow you to learn even more information and obtain even stronger admissions.

I happen to cross something in Wikipedia where I’m quoted on the difference between an admission by a party opponent and a declaration against interest. https://en.wikipedia.org/wiki/Declaration_against_interest. Well, Wikipedia may not be the most learned treatise on evidence and it may not be well-thought of as a source for scholarly research but it is the modern day Encyclopedia Britannica in some senses. Keep in mind that admissions by the defendant are general and are used against the defendant. They needn’t be against interest. Above all, they can lead to the chance to get clarification and elaboration, something that can serve to enhance your case.

In my personal injury case intake, I always ask the client to tell me what was said at the scene of the injury or accident. By whom? Such remarks, even if disputed, will be entered into evidence and therefore can frame the issue. Of course, I’m not looking for fabricated statements; give me the truth of what was said at the car accident scene, the construction site, the walkway, or the like. The lawyer will then take it from there. The notion behind this rule is that the opposing party is in the courtroom and can dispute what is claimed that he/she said. By the way, just because the other party is there in the courtroom doesn’t mean that other hearsay exceptions can be overcome.

Disclaimer: once again I speak as if your case is to be tried. We know that the statistics make that far less than a 50% likelihood. Yet, as I have written on many previous occasions, cases are assessed or evaluated as if they are to be tried. Thus evidentiary discussion is hugely important for settlement purposes.

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