In this episode of our educational video series, On Subrogation, Rathbone attorney Jason Sullivan guides us through the basics of the hearsay principle. This video is the first of our 3-episode series on handling hearsay in your subrogation cases. In this episode, Jason defines and outlines the concept of hearsay.

What is hearsay? A rule of evidence that attempts to validate the veracity of a claim, the legal definition is:

“an out of court statement presented to prove the truth of the matter asserted.”

In general, courts do not like hearing about out-of-court statements from anyone other than the person who initially made the statement. The hearsay rule tries to address the fact that second-hand testimony has the potential to end up much like the childhood telephone game: with each passing on of information from one person to the next, its original meaning becomes diluted and/or skewed.

Declarants vs Witnesses: When Will a Court Accept Secondary Testimony?

How does hearsay apply in preparing for subrogation litigation? It hinges on the principle that testimony from the declarant, the person who made the statement outside the court room, is the most reliable form of testimony. In the context of what is and what is not hearsay, a witness, then, is the person who was told/heard/read the declarant’s statement. 

As a rule, the court would rather hear from the declarant than a witness, however, there are exceptions that Jason discusses in the next two episodes on hearsay. There are also circumstances where secondary sources are not considered hearsay. These are different from exceptions; these conditions are simply not included in the definition of hearsay. 

There are three instances where secondary information does not fall under hearsay:

  1. A prior sworn statement by a witness. This is mostly used in the context of impeaching a witness whose fresh testimony does not match the prior sworn statement.
  2. Prior testimony under oath. This is mostly used to bolster claims made via previous corresponding testimony.
  3. Statements by a party opponent. Anything the plaintiff or defendant says can be used against them in a subrogation trial.

When Statements by a Party Opponent are Excluded from Hearsay

Why is this “I heard them say” claim not deemed as hearsay? Simply because it was made by one of the two litigating parties. Jason offers the hypothetical of an automotive subrogation case:

There is a vehicle collision where the defendant rear ends the plaintiff. The plaintiff, in their witness statement, says at the time of the incident, the defendant immediately got out of their car and rushed over to apologize. They admitted they were texting and driving and that they were at fault for the collision. The plaintiff is then allowed to give testimony on what the defendant said; it is excluded from the hearsay rule.Curious about the nuances of this evidentiary rule? Refer to our subsequent videos and accompanying article about exceptions to hearsay, and listen to our podcast, where RG subrogation attorneys discuss the details of this evidentiary obstacle. Feel free to email us with any questions or suggestions for subrogation topics you would like to hear about in our On Subrogation series.