If you are involved in a legal dispute, are unable to settle it, and find yourself in trial, you and your trial attorney will be required to present your claims (if you are a plaintiff) or your defenses to the other side’s claims (if you are a defendant). How exactly you and your attorney will go about doing so will be governed by the applicable rules of evidence.
The rules of evidence will make presenting your claims or defenses akin to running an obstacle course, since they present a myriad of weapons for the other side to keep out evidence helpful to you. We will discuss one of those obstacles in this and subsequent articles — the hearsay rule.
Definition of Hearsay
What exactly is hearsay? It is generally defined as a statement made out-of-court that is introduced to prove the truth of its contents. Consider this statement: “I saw the defendant run through a red light and hit the plaintiff’s car.” If that statement is made by an eyewitness while testifying under oath in court, it is not hearsay, because it is not an “out-of-court” statement. On the other hand, if you are the plaintiff whose car was hit by the defendant, and a witness at the scene says to you, “I saw him (the defendant) run through a red light and hit your car,” and you seek to testify that you heard the witness say that at the scene, the statement would be hearsay, because it was made “out-of-court.”
One of the reasons for the hearsay rule is that, in the above example, if the witness is not in court to testify, he is not subject to cross-examination by the defendant. The defendant has a right to test the witness’s ability to perceive, his bias or prejudice against the defendant, and any other matter that might cast doubt on the truthfulness or accuracy of the witness’s testimony.
Statements That Are Not Hearsay
Some out-of-court statements, however, are not hearsay, because they are not introduced to prove the truth of their contents. Consider this example: You offer to sell your car to Bob Buyer for $10,000, and Bob Buyer says: “I accept your offer and will pay you $10,000 for your car.” Bob Buyer later reneges on the deal, and you sue him for breach of contract.
You would be permitted to testify that Bob Buyer accepted your offer and agreed to pay you $10,000 for your car. That is because Bob Buyer’s statement, although made out-of-court, would not be offered to prove that he would in fact buy your car. Obviously, he has chosen not to buy your car. Instead, you are offering his agreement to pay you $10,000, because those very words spoken, whether Bob Buyer meant them or not, created a contract. In other words, Bob Buyer’s statement that he would pay you $10,000 for your car had “independent legal significance,” regardless of its truth or non-truth.
Similarly, a defamatory statement (libel for a printed falsehood, or slander for an oral falsehood) would not be offered to prove the truth of its contents. In fact, just the opposite. If someone said, for instance, that you were a criminal or a felon, and that was not true, you could sue the person who said that about you, and introduce the statement in evidence, despite the fact it was made out-of-court. That is because you would not be introducing it to prove that you were in fact a criminal or a felon, but simply to prove that the statement was made.
As your business litigation attorney can advise you, the giving of notice is also admissible in evidence, because it is not offered to prove the truth of its contents. For instance, if parties enter into a three-year contract, but the contract also provides that either party may cancel the contract before its expiration by giving the other side 30 days’ notice, the giving of 30 days’ notice by one party to the other (e.g., “I am canceling this contract effective April 30, 2017”) is not hearsay. As in the Bob Buyer example above, the statement “I am canceling this contract” has “independent legal significance” (i.e., it causes cancellation of the contract effective April 30, 2017), regardless of whether the canceling party meant what he said.
Solicitations similarly do not constitute hearsay. For instance, a newspaper or TV ad which touts the quality, durability or benefits of a product, which the product does not in fact have, would not be hearsay if offered in a lawsuit against the seller for unfair business practices. Again, the plaintiff would not be introducing the solicitation to prove it was true. Indeed, he would be seeking to prove that the statement was not true.
Even when a statement made out-of-court is offered to prove the truth of its contents, it may be accepted into evidence if it meets one of the many exceptions to the hearsay rule. Look for a discussion of these exceptions in future installments on our blog posts by our AV-rated business and employment litigation attorney, William Tucker.
 For the Definition of Hearsay pursuant to the Federal Rules of Evidence, see https://www.law.cornell.edu/rules/fre/rule_801; For the Definition of Hearsay pursuant to the California Rules of Evidence, see http://codes.findlaw.com/ca/evidence-code/evid-sect-1200.html.