The Seventh Circuit has a gift for lawyers looking to brush up on the Federal Rules of Evidence. It comes wrapped as last week’s decision in Jordan v. Binns, No. 11-2134 (7th Cir. Apr. 4, 2013), where the court examined multiple levels of hearsay. Given its evocation of a law-school exam, it was fitting that the court heard argument at IU-Bloomington’s law school.
The facts of the case were tragic. Betty Jordan lost both of her legs below the knees after her motorcycle collided with a tractor-trailer. She and her husband, Ted, sued the truck driver (Kelly Binns) and the truck driver’s employer (U.S. Xpress, Inc.). According to evidence at trial, Betty, while still in pain at the accident scene, said to her husband and the truck driver, separately and in substance, “Tell the trucker it’s not his fault. It’s my fault.” A jury trial ended with a verdict for the defense.
On their appeal for a new trial, the Jordans challenged six pieces of evidence, each reporting on purported statements by Betty to either Ted or Binns about her admission. These included testimony of a state trooper about what Ted and Binns told him that Betty told them, corresponding statements in his crash report, testimony of U.S. Xpress’s insurance adjuster about what Binns told him that Ted told Binns about what Betty told Ted, and a statement in his adjuster’s report. Fortunately Judge Tinder’s opinion includes diagrams for the layers of hearsay.
The first layer of each communication string was a statement by Betty and admissible nonhearsay as an admission by a party-opponent.
The opinion was keyed, however, by the court’s decision that Ted’s statements (to Binns and to the state trooper) about what Betty had said to him were likewise admissible since Ted was also a party-opponent, as a co-plaintiff. The Jordans argued that Ted’s statements were not admissions, because they were not his (“the party’s”) statements, but Betty’s. But the court rejected this “original thought” requirement and pointed out the fallacy of equating his statements with hers: “The truth of the matter asserted by Betty is that the accident was her fault, but the truth of the matter asserted by Ted is that Betty said the accident was her fault.” And, since both he and Betty were parties, his statements were not hearsay.
That rationale didn’t apply to Binns’s statements, however, since the statements weren’t being used against him. The evidence based on those was inadmissible hearsay, making it an abuse of discretion for the district court to have allowed them in.
A similar split applied for statements in the crash report. The crash report was a public record entitled to a presumption of trustworthiness, either as an evaluative report (even as redacted) or a record of matters by one with a duty to report. But Binns’s statements in that report were not admissible based on the court’s decision that the public-records exception was not a multi-level exception that swept in an otherwise-inadmissible statement.
Finally, the court ruled that the adjuster’s report was not within the business-records exception, since it had been prepared in anticipation of litigation on behalf of U.S. Xpress and was not entitled to the presumption of reliability.
In total, the Seventh Circuit found that four of the six pieces of evidence had been improperly admitted. Yet all this was harmless, mainly because much of it was cumulative. While going 4 for 6 means a good day at the ballpark, the Seventh Circuit reminds us that the same is not always true in the courts — and certainly wasn’t on this day for the Jordans.