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During a trial I was handling in the Southern District of New York a few weeks ago, I sat at the defense side of the table during the direct examination of the plaintiff. As I listened, my adversary began to elicit out-of-court statements that were undoubtedly being offered for the truth of the matter.

As every second-year law student learns, when we hear questions such as “what did she tell you,” our first instinct as the trial attorney is to immediately object arguing hearsay. After all, one cannot cross-examine a person who made the alleged statement if that person is not in court. Before the witness could answer, I calmly rose to my feet and objected.

The statements at issue involved an employee of the client I represented telling the plaintiff, a former employee of my client, that a supervisor had “broken into their work area.” These statements were not particularly relevant to the proceeding, but as you can imagine, they did not cast my client in the best light. They were clearly being offered to prejudice the jury against my client and certainly made the plaintiff appear more sympathetic.

Relevance is a very low bar under FRE 401in Federal Court [1], and the standard is set just as low in New York State common law.[2] My objection to this line of questioning on hearsay grounds was overruled and my adversary, emboldened by the judge’s ruling, systematically attempted to introduce more and more hearsay statements regarding this issue.

I was in a bit of a quandary here as I felt I needed to protect the record but did not want to appear as if I was hiding something from the jury. After all, a trial lawyer never wants to lose their credibility with the jury because if they think you are trying to keep something from them, you will promptly lose your trustworthiness. Strategically, I respectfully objected to the line of questioning when possible. The judge, perhaps sensing my frustration with the rulings, took a recess and excused the jury, seeking to discuss the matter further.

Now, many judges would not give an advocate the courtesy this judge was giving me. Perhaps I had earned her respect throughout the trial and she wanted to give me the benefit of the doubt so as to understand my legal argument – that way the record would be preserved should an appellate court believe her ruling to be error (and rise to the level of reversible error). Or perhaps she provides all the litigants who appear before her the same courtesy because she wants to get the ruling right. I cannot be sure but whatever the reason, this intelligent and affable judge gave me the opportunity to make my record.

After the jury exited, she quizzically asked me why I believed the proposed testimony was hearsay since the statements allegedly were made by my client’s employee.

Having my condensed NITA FRE with me, I held it up, so she could see I was referring to it, and said “as Your Honor is well aware, 801(d)(2)(c) only allows the statement of an employee in evidence if the individual making the statement had the speaking authority to make it.” The section reads verbatim:

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(C) was made by a person whom the party authorized to make a statement on the subject.

“With respect,” I further argued that the alleged statements the plaintiff is offering to place in evidence have to do with the unsubstantiated lay opinion by one of its employees who did not have “speaking authority” to make it.

I felt I had made a pretty good objection and legal argument here. After all, rarely are employees authorized to make statements about their employer’s business that may cause them legal liability. New York law is particularly, and it would seem purposely, vague on this issue. Confident I had prevailed in my argument, I looked up from my FRE, believing I had persuaded her Honor of my position.

A caveat here – I try the majority of my cases in NY State, rather than Federal Court. As such, I sometimes blur New York State’s rules of evidence, which are based in common law, with the statutory Federal Rules. Under New York State common law, statements of an employee are inadmissible against their employer under the admissions exception to the hearsay rule unless the statement is made within the scope of their authority.[3] This rarely occurs.

After patiently and courteously listening to my argument, the Judge  countered with FRE 801(d)(2)(D). This rule states:

(d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay:

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.

Now this section of the FRE was created because of a dissatisfaction with the rule that required the speaking authority (d)(2)(C) does.[4]

In for a penny, in for a pound. I went all in and maintained that the purported statements were not made within the scope of the speaker’s agency relationship. Unpersuaded, the judge denied my objection but revisited the “lay opinion” argument I had previously made, sustaining the objection on that ground.

Now, she asked, “how would you like to handle this in front of the jury?” Not wishing to go back and rehash the testimony in front of the jury, I opted not to ask for a curative instruction. After all, once that bell was rung it was impossible to un-ring it. I simply asked the judge to instruct my adversary to stop this line of questioning, which she did. The jury came back, we re-commenced and moved on.

Later that night, as I rode the train home from Court, I did some follow up research on the issue. Under FRE 801(d)(2)(C), speaking authority is necessary but not so under FRE 801(d)(2)(D). All that is required is that the statement concern a matter within the scope of the agency or employment.[5] Whether the statements in question – “they broke into your work area” were made within the scope of the agency or employment was a source of disagreement between the Court and myself, but it all worked out in the end.

I will repeat that this particular judge was the kind of judge you want to appear in front of. That does not mean I won every ruling, or even a majority of them. But she was patient and willing to listen to my arguments – something we, as litigants, can only hope for from a judge.

So, what is the moral of this story? Perhaps there is no moral, I just wanted to share this anecdote as the first of many writings I will post on the “Advocate’s Advantage.” Or maybe the lesson learned is “experience is the best teacher.” Under New York law, in order to qualify as an exception to the hearsay rule as a party statement, one must have the authority to speak on behalf of their employer. Under Federal law, a statement is not hearsay under 801(d)(2)(C) if the employee has “speaking authority” on behalf of their employer, or, under 801(d)(2)(D) if the party’s employee speaks while the relationship existed and “on a matter within the scope of that relationship.”

I hope this brief post helps if you encounter this legal question in your future trials, but I leave you with a rhetorical question – under Federal law, why do we need both 801(d)(2)(C) and (D)? If subsection (D) is satisfied, doesn’t it automatically mean that the speaking authority requirement of (C) would be met?


[1] § 401:1 Test for relevant evidence: materiality and “fact is of consequence”, 2 Handbook of Fed. Evid. § 401:1 (9th ed.).

[2] People v Yazum, 13 N.Y.2d 302, 304 (1963).

[3] Loschiavo v. Port Auth. of N.Y., 58 N.Y.2d 1040, 1041 (1983).

[4] FED. R. EVID. 801(d)(2)(D) advisory committee’s note.

[5] § 801:23 Rule 801(d)(2)(D): admissions; statements by agent or employee concerning matter within scope of his agency or employment; attorneys, 6 Handbook of Fed. Evid. § 801:23 (9th ed.).

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