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How could you get something like this let in:

Bob arrives at the Olive Garden and signs his check as "Tony".

Sarah arrives two hours later and asks the Olive Garden manager what Bob signed his check as and the manager says Bob signed it as "Tony." Sarah states all of this at a deposition.

Under the FRE, how could you get Sarah finding out Bob signed his check as Tony into the trial if the Olive Garden manager isn't available to testify? There has to be an exception to this hearsay right?

Thanks in advance!

UCFundergrad wrote:How could you get something like this let in:

Bob arrives at the Olive Garden and signs his check as "Tony".

Sarah arrives two hours later and asks the Olive Garden manager what Bob signed his check as and the manager says Bob signed it as "Tony." Sarah states all of this at a deposition.

Under the FRE, how could you get Sarah finding out Bob signed his check as Tony into the trial if the Olive Garden manager isn't available to testify? There has to be an exception to this hearsay right?

Thanks in advance!

Why wouldn't you just request a copy of the check during discovery?

UCFundergrad wrote:How could you get something like this let in:

Bob arrives at the Olive Garden and signs his check as "Tony".

Sarah arrives two hours later and asks the Olive Garden manager what Bob signed his check as and the manager says Bob signed it as "Tony." Sarah states all of this at a deposition.

Under the FRE, how could you get Sarah finding out Bob signed his check as Tony into the trial if the Olive Garden manager isn't available to testify? There has to be an exception to this hearsay right?

Thanks in advance!

Hearsay is a statement used to prove the truth of the matter asserted. The fact is, you don't think a guy named Tony signed this check at all, Bob did. Therefore, this cannot be used to prove the truth of the matter asserted, that Tony signed the check. There is no exception needed here, this just isn't hearsay.

Sorry meant to mention that the check has been misplaced.

So can't find the check or the manager, but the manager still said to Sarah that Bob signed his check as "Tony."

UCFundergrad wrote:Sorry meant to mention that the check has been misplaced.

So can't find the check or the manager, but the manager still said to Sarah that Bob signed his check as "Tony."

Is the manager available to testify?

No manager isn't available and never gave a deposition. It is all from Sarah's deposition.

I never thought about it not being asserted for the truth of the matter. It's hard for me to wrap my mind around. In my mind it is asserted for the truth of the matter because we are trying to prove that he signed it as Tony and not as Bob. I don't know why my little mind can't grasp that.

Think about it like this:

A woman named Samantha declares that she is Kate Beckinsale. You attempt to admit this at trial. Other side says hearsay. Is it?

NO:

1) It is only the truth of the matter asserted (she asserted she is Kate Beckinsale) if you use that to prove she is Kate Beckinsale (ignoring exceptions for the moment).
2) In this case you could be using this assertion to prove she is lying, nuts, etc. Note that this is not the truth of what she asserted.


But you have another problem here, because people will argue hearsay within hearsay. We already got around the first part, the signature itself is not hearsay. But you do have a problem with the manager's statement that he signed the check "Tony." Here, you ARE trying to prove the truth of the matter asserted. Ordinarily you could get around this by just calling the manager to testify, but apparently that isn't an option here. So, look to an exception. On the exception, I will need to think about it. Nothing is coming to mind at the moment, unless Sara asked him immediately after the check was signed. If so, present sense impression.

bjsesq wrote:Think about it like this:

A woman named Samantha declares that she is Kate Beckinsale. You attempt to admit this at trial. Other side says hearsay. Is it?

NO:

1) It is only the truth of the matter asserted (she asserted she is Kate Beckinsale) if you use that to prove she is Kate Beckinsale (ignoring exceptions for the moment).
2) In this case you could be using this assertion to prove she is lying, nuts, etc. Note that this is not the truth of what she asserted.


But you have another problem here, because people will argue hearsay within hearsay. We already got around the first part, the signature itself is not hearsay. But you do have a problem with the manager's statement that he signed the check "Tony." Here, you ARE trying to prove the truth of the matter asserted. Ordinarily you could get around this by just calling the manager to testify, but apparently that isn't an option here. So, look to an exception. On the exception, I will need to think about it. Nothing is coming to mind at the moment, unless Sara asked him immediately after the check was signed. If so, present sense impression.

Could it maybe be present sense impression when the manager actually READ the check despite the check being signed two hours ago? Maybe a stretch there.

UCFundergrad wrote:

bjsesq wrote:Think about it like this:

A woman named Samantha declares that she is Kate Beckinsale. You attempt to admit this at trial. Other side says hearsay. Is it?

NO:

1) It is only the truth of the matter asserted (she asserted she is Kate Beckinsale) if you use that to prove she is Kate Beckinsale (ignoring exceptions for the moment).
2) In this case you could be using this assertion to prove she is lying, nuts, etc. Note that this is not the truth of what she asserted.


But you have another problem here, because people will argue hearsay within hearsay. We already got around the first part, the signature itself is not hearsay. But you do have a problem with the manager's statement that he signed the check "Tony." Here, you ARE trying to prove the truth of the matter asserted. Ordinarily you could get around this by just calling the manager to testify, but apparently that isn't an option here. So, look to an exception. On the exception, I will need to think about it. Nothing is coming to mind at the moment, unless Sara asked him immediately after the check was signed. If so, present sense impression.

Could it maybe be present sense impression when the manager actually READ the check despite the check being signed two hours ago? Maybe a stretch there.

You could certainly argue it, but he isn't recollecting dude signing it at that point. He is merely reciting what is on the check. If that is all you need, fuck it, YOLO

Haha. It's the best I've got at this point.

If you think of something let me know please!

bjsesq wrote:But you have another problem here, because people will argue hearsay within hearsay. We already got around the first part, the signature itself is not hearsay. But you do have a problem with the manager's statement that he signed the check "Tony." Here, you ARE trying to prove the truth of the matter asserted.

Agreed. If I've understood the situation properly, the exchange went as follows:

Sarah: Who did Bob sign his check as?
Manager: Tony

The manager's statement asserts the following: "Bob signed his check as Tony." It seems like that's what OP wants to prove, so it'd be Hearsay.

I believe there are three possible ways out of this. However, I think only the first one has a good chance of working.

1. Argue it's not hearsay because you aren't offering it for the truth of the matter asserted. In this case, you'd have to argue that you do not want to prove that "Bob signed his check as Tony." Perhaps you could argue that the purpose of this statement is to see the effect it would have on Sarah.

2. Hearsay exception: Present Sense Impression. Bjsesq mentioned this.

3. Hearsay exception: Records of Regularly Conducted Activity. I think this would be a strong argument if you had the check. If you don't have the check, it's very unlikely that it would work. I suppose you'd have to argue that remembering how customers sign their checks is a "record" that the manager regularly keeps.

woosah wrote:3. Hearsay exception: Records of Regularly Conducted Activity. I think this would be a strong argument if you had the check. If you don't have the check, it's very unlikely that it would work. I suppose you'd have to argue that remembering how customers sign their checks is a "record" that the manager regularly keeps.

Gotta be honest, I am not sure this would come close to getting it done. I thought about Business records exception, and I do not think this meets the requirements.

Yea I'm worried that if I were to ask Sarah on the stand about what the manager said it will be objected to and while I could say it's not for the truth of the matter asserted, the manager's statement must still be hearsay right?

UCFundergrad wrote:Yea I'm worried that if I were to ask Sarah on the stand about what the manager said it will be objected to and while I could say it's not for the truth of the matter asserted, the manager's statement must still be hearsay right?

He's saying you aren't using the manager's statement for truth, but for its impact on Sarah and her subsequent actions. Therefore, it wouldn't be hearsay.

Ahhh gotchya. Well I can at least try.

this thread seems a little too close to soliciting legal advice

guano wrote:this thread seems a little too close to soliciting legal advice

Class exercise. Could go to my TA, but he's out of town.

UCFundergrad wrote:

guano wrote:this thread seems a little too close to soliciting legal advice

Class exercise. Could go to my TA, but he's out of town.

please tell me it's not graded

Nope, prep for something in a month that will be graded.

UCFundergrad wrote:

guano wrote:this thread seems a little too close to soliciting legal advice

Class exercise. Could go to my TA, but he's out of town.

Wait, is TLS doing your homework right now?