This article is a companion piece to this video
In this episode of On Subrogation, RG insurance subrogation attorney Jason Sullivan educates us on the 5 exceptions to the Hearsay Rule courts accept when the original source of testimony may or may not be available. Understanding nuances in law process like these hearsay exceptions can prove vital in a subrogation case where physical evidence is hard to come by. Jason’s discussion educates subrogation professionals on how hearsay exceptions can prove vital resources in subrogation litigation.
Five Times when Hearsay isn’t Just Hearsay
Hearsay is defined as “an out of court statement that’s being presented to prove the truth of the matter asserted.” Courts don’t see hearsay as reliable evidence. However, there are cases when hearsay might hold the same weight as testimony from the original source.
Effects of Immediacy: the Present Sense Impression Exception
This exception is based in the assumption that what someone says as an event is happening is likely the most accurate perception of the event. Sullivan presents the example of a car accident where there are two witnesses. Witness 1 immediately says to Witness 2, “Did you see that green car run the red light and hit the blue car?”. In this case, the court will accept testimony from Witness 2 even though they were not the declarant.
Honesty in Reactivity: the Excited Utterance Exception
This exception assumes that under the stress of an adverse incident, reactive statements are always honest responses. Sullivan again uses the example of a vehicle accident. Someone rear ends your car, and you immediately say, “Man, that car just rear ended us!”. The other people in the car with you at the time can testify to that; it won’t be considered hearsay.
Supplementary Memory: the Recorded Recollection Exception
Jason poses a hypothetical where you witnessed a car accident and wrote down every detail about it in the moment, but you’re not called as a witness until two years later. You’ve forgotten some details, because time has passed. Courts will allow you to use those detailed records you wrote two years ago to refresh your memory. They are not admitted as evidence, but can nullify the memory problem in your witness testimony.
Consistent Business Practices: the Records of Regularly Conducted Activity Exception
This exception is simple. In cases of insurance subrogation, courts don’t want to hear from every single person at the company to get reliable testimony on standard procedure. Courts allow one person to testify as to how the company runs, regarding ethics, procedures, etc.
The Past Matters: the Judgment of a Previous Conviction Exception
If the opposing party has past convictions that are applicable to your subrogation claims case, the court doesn’t require all people party to the past conviction process to testify. In these cases, the record of the judgment itself suffices, and is not considered hearsay.
For more details on the ins and outs of hearsay and how it applies to insurance subrogation law, Jason also unpacks what hearsay is in our previous episode, and discusses the other body of exceptions to hearsay: when the declarant must not be available, in our next episode.