Admitting Hearsay and Applying FRE 801(d)(2): Expanding the Scope of Party Admissions to Outside Counsel Statements

Recording of a 90-minute CLE webinar with Q&A


Conducted on Tuesday, June 9, 2020

Recorded event now available

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Program Materials

This CLE webinar will discuss the trend in some jurisdictions to admit statements of outside counsel as admissions against their clients under Federal Rule of Evidence 801(d)(2).

Description

Statements of opposing parties made in or out of court are admissions not hearsay and, thus admissible evidence. Federal Rule of Evidence 801(d)(2) provides that the same rule applies to statements of the opposing party's agents, so long as the statements are within the scope of the agency and are relevant to the matter at hand.

An attorney is the client's agent, so clients often suffer the consequences of their attorney's blunders because the actions of its agent bind the client. In the context of an attorney's statements, some rulings have applied FRE 801(d)(2) to admit counsel's statements against the client to prove part of a claim or defense, even in criminal cases.

Listen as the panel explores how these agent-admissions happen in both civil and criminal matters, the consequences, and what topics create the most risk.

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Outline

  1. Is the counsel an agent?
  2. Was the statement made during the existence of the agency?
  3. Does the statement concern a matter within the scope of the agency?
  4. Must the declarant have personal knowledge?
  5. When can such statements be used in criminal proceedings?

Benefits

The panel will review these and other noteworthy issues:

  • How FRE 802(d)(2) works for agents
  • When can such statements be used in criminal proceedings
  • What counsel can and cannot do to prevent his/her statements to harm a client's case
  • Best practices to avoid statements as being deemed admissions

Faculty

Bachner, Michael
Michael F. Bachner

Partner
Bachner and Weiner

Mr. Bachner concentrates his practice on white collar criminal defense and securities litigation. Before entering...  |  Read More

Jenks, Thad
Thad K. Jenks

Partner
Weinstein Tippetts & Little

Mr. Jenks is a trial lawyer whose practice has included a significant amount of noteworthy products liability work. He...  |  Read More

Tomasik, Timothy
Timothy S. (Tim) Tomasik

Founding Member
Tomasik Kotin Kasserman

Mr. Tomasik handles large and high-profile cases for the firm in the areas of aviation litigation, commercial aviation...  |  Read More

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