An Opposing Party's Statement
An opposing party's statement is admissible hearsay, and the whole concept turns on one word: against.
10. Admissibility of an Opposing Party's Statement
An out-of-court statement is admissible if it “is offered against an opposing party and (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; . . . [or] [(D) was made by the party’s . . . employee on a matter within the scope of that relationship and while it existed.]” Fed. R. Evid. 801(d)(2). 58
- This rule applies only when a statement is offered against the party who made it. Parties may not introduce their own out-of-court statements, which may be self- serving.
- The Nevada FLE tests this rule as applied to statements made directly by a party, to statements that a party adopted, [and to statements by a party’s employee on a matter within the scope of that relationship and while it existed].
- The statement of an opposing party is admissible even if the opposing party lacked personal knowledge of the truth of the matter asserted in the statement.
- Test-takers need not recall that the federal rule defines these statements as “not hearsay” rather than as statements excepted from the rule. Lawyers and judges still refer to this as an opposing party “exception.”
- The Nevada FLE does not test application of this exception to statements by a person that the opposing party authorized to speak, to statements of a party’s agent [(other than an employee)], or to a party’s coconspirator. Fed. R. Evid. 801(d)(2)(C)- (E).
An opposing party's statement is admissible hearsay, but only when offered against the party who made it. A party cannot offer its own statement under this route.
An opposing party's statement is admissible hearsay, and the whole concept turns on one word: against. The statement comes in only when it is offered against the party who made it. A party cannot offer its own out-of-court statement under this route, because a party would only ever offer its own statement to help itself, and the rule does not reward self-serving hearsay. So the first question is always directional: who made the statement, and against whom is it now being offered? If a plaintiff's own earlier statement is offered by that plaintiff, this route fails. If that same statement is offered against the plaintiff by the other side, it comes in.
- 1A statement the party made themselves, in an individual or a representative capacity.
- 2A statement the party adopted, meaning the party manifested that it believed the statement to be true, by words or by conduct.
- 3A statement made by the party's employee on a matter within the scope of that employment relationship and while the relationship still existed.
Watch that third route closely, because it has two triggers that both have to be satisfied: the subject must be within the scope of the job, and the statement must be made while the person was still employed. A former employee speaking after leaving, or a current employee chatting about something outside the scope of the job, does not satisfy this route. One more point the rule makes explicit: personal knowledge is not required. The party's statement comes in against the party even if the party had no firsthand knowledge of what they were asserting.
Three routes that the Nevada FLE does NOT test, and that you should treat as outside this concept entirely, are statements by an authorized spokesperson, statements by a party's agent who is not an employee, and statements by a coconspirator. Those can appear as tempting wrong answers, but the rule you are applying does not reach them.
"Against, not by."
The statement comes in only when offered against the party who made it; a party can never use this route to admit its own out-of-court statement.
Three tested doors in: the party said it, the party adopted it, or the party's employee said it on the job while still on the job.
The employee door has two locks, both required: within the scope of the relationship and while it still existed.
Personal knowledge is not required.
Three doors that are not on this exam, so any answer that turns on them is wrong: authorized spokesperson, a non-employee agent, and a coconspirator.
opposing party's statement = offered against the maker, by the maker's own words, adoption, or a current in-scope employee.
A delivery company is sued by a pedestrian who was struck by one of its trucks. The pedestrian wants to introduce a statement that the company's delivery driver made at the scene, right after the crash and while still on shift, saying, "I was running way behind, so I blew through that light." The company objects that the statement is hearsay.
Suppose the same driver said the same thing two years after he had quit the company, recalling the old crash to a friend. The statement no longer comes in under this route, because it was not made while the employment relationship existed. The timing trigger fails, and a former employee's later statement does not bind the former employer through this concept.
A party tries to admit its OWN out-of-court statement, and an answer says it comes in simply because the party made it or had personal knowledge of it.
This route admits a statement only when offered against the party who made it; a party may not introduce its own out-of-court statement, and personal knowledge does not change that.The statement is by a former employee, or by a current employee but about something outside the scope of the job, with an answer keyed on the speaker simply being an employee.
The employee route requires both that the matter be within the scope of the relationship and that the statement be made while it still existed; failing either trigger defeats the route.An answer makes admissibility turn on the party's lack of personal knowledge of the matter asserted.
An opposing party's statement is admissible even if the party lacked personal knowledge of the truth of the matter asserted; personal knowledge is not an element.An answer keys admissibility on an authorized spokesperson, a non-employee agent, or a coconspirator.
Those routes are outside this concept; admissibility must rest on the party's own statement, an adopted statement, or a current in-scope employee's statement.a witness wants to repeat an out-of-court statement, and the statement is tied to a party in the case.
The instant you see that, ask the directional question first: is the statement offered against the party who made it, or is a party trying to admit its own statement?
If a party is offering its own statement, this route is out.
If it is offered against the maker, sort it into one of three doors: the party said it themselves, the party adopted it by manifesting a belief in its truth, or the party's employee said it.
When you land on the employee door, run the two-part timing-and-scope check, both required: was the subject within the scope of the job, and was the person still employed when they said it?
A former employee or an off-topic remark fails.
Ignore any lack of personal knowledge, which never defeats the statement, and ignore answers built on an authorized spokesperson, a non-employee agent, or a coconspirator, which are not tested here.
A pedestrian sued a delivery company after one of its trucks struck her in a crosswalk. At trial, the pedestrian calls a bystander who will testify that, moments after the collision and while still on his shift, the company's delivery driver said, "I was running behind, so I went through on the red." The company objects that the driver's remark is inadmissible hearsay. The driver was employed by the company at the time and the remark concerned his driving of the company truck.
Is the driver's statement admissible against the delivery company as an opposing party's statement?
A homeowner sued a roofing contractor for a leaking roof. To prove that the roof had been installed correctly, the contractor wants to testify that, one week after the job, he told a neighbor, "I sealed every seam and double-checked the flashing myself." The homeowner objects. The contractor argues the statement should be admitted as the statement of a party.
May the contractor introduce his own out-of-court statement under this rule?
An insurance company sued a warehouse operator for fire damage, claiming the operator stored flammable goods improperly. At trial, the insurer offers testimony that a worker formerly employed at the warehouse said, after he had quit and moved to another city, "Back when I worked there, we kept the solvents stacked right next to the heaters." The worker had left the warehouse's employment three months before he made the statement. The operator objects.
Is the former worker's statement admissible against the warehouse operator as an opposing party's statement?
A buyer sued a used-car dealer, alleging the odometer had been rolled back. At trial, the buyer offers a written inspection report prepared by a third-party mechanic stating that the car had far more wear than its mileage suggested. The buyer testifies that, when she handed the report to the dealer and asked whether it was accurate, the dealer read it, nodded, and said, "Yeah, that all looks right to me." The dealer now objects that the report is hearsay.
Is the report admissible against the dealer as an opposing party's statement?
A supplier sued a restaurant chain for unpaid invoices. To prove the chain acknowledged the debt, the supplier offers testimony that a person who runs a separate public-relations firm hired by the chain told a reporter, "The chain knows it owes the supplier and intends to pay." The public-relations firm is an independent contractor, not an employee of the chain, and the chain had not authorized it to discuss the debt. The chain objects.
Is the public-relations firm's statement admissible against the restaurant chain as an opposing party's statement?