McElhaney on Litigation

The Real Witness

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Illustration by John Schmelzer

At 7:30 Monday morning, Angus and I were getting off the elevator to unlock the office. There was federal district Judge Horatio Standwell, waiting by the door, holding a thermos of dark mountain roast in one hand and a bag from Garcia’s Country Oven in the other.

“Good morning,” said the judge. “Have you tried Garcia’s yet? Their coffee is merely superb, but their blueberry cream scones are world-class.”

“ ‘Merely superb’ coffee and ‘world-class’ scones?” said Angus. “You must have a serious problem.”

Judge Standwell nodded. “I do,” he said. “Can I come in? I’d rather not talk in the hall.”

Once in the conference room, Angus said, “Don’t tell me you’ve been indicted.”

Judge Standwell laughed. “Nothing like that. But I have an embarrassing confession to make,” he said. “I don’t understand hearsay.”

Angus laughed. “Don’t feel alone,” he said. “There are lots of judges and lawyers who can’t wrap their minds around hearsay—although not many have the courage to admit it. But why is it suddenly a problem now?”

“Because I’ve been roped into doing a two-hour presentation on hearsay at a national college for federal district judges in just three weeks, and I can’t get out of it,” said Standwell.

“That’s a problem,” said Angus. “When do you want to talk?”

“I’ve got an hour and a half right now,” said the judge, “but I could come back after supper if you’re too tied up this morning.”

Angus smiled. “It would be a crime to let world-class scones get stale,” he said. “Let’s get down to work.”

“I suppose the place to start is with the definitions of hearsay,” said the judge, looking grim.

“Why?” said Angus. “That’s where everybody starts, and it hasn’t worked so far. By the way, who did you have for evidence when you were in law school?”

“Vince Warbler,” said Standwell. “Right here at the university.” He didn’t see Angus wince.

“And I bet you could recite the rule standing on one foot back then,” said Angus.

“Still can,” said the judge. “ ‘Hearsay is evidence that depends for its probative value on the veracity of an out-of-court declarant.’ But don’t ask me to explain what that really means or how it works in practice.

“The other definition is just as bad,” he said. “ ‘Hear­say is an out-of-court statement offered to prove the truth of the matter asserted.’ As far as I’m concerned, they’re both useless.”

I clapped and Angus chuckled.


“We could parse our way through those two defi­nitions in 10 or 15 minutes, and I think I could prove to you that they are accurate,” said Angus. “But mere verbal accuracy doesn’t make them useful to lawyers and judges—especially in the heat of battle.

“The best way to define any rule is not with big words or abstract notions, but with a simple statement that says what it does and why it does it. Once you do that, you can give it a good name.”

“OK, I’ll bite,” said the judge, pouring Angus another cup of dark mountain roast and handing him another scone. “What does it do—besides inflict endless pain, cost litigants millions of dollars a year and keep people like Vince Warbler working?

“Now, Horatio, be nice,” said Angus with a twinkle in his eye.

“In fact, the rule against hearsay guards the single most important right in the Anglo-American system of justice: cross-examination. It protects the right to cross-examine the real witness against your client. So when the person on the stand is not the real witness, that takes away your right of cross-examination.

“So calling hearsay the ‘real-witness rule’ helps your comprehension because the very name wakes up your natural trial instincts. It also makes it easy to identify hearsay in the middle of trial, when you have to think fast. What’s more, it explains why some statements that look like hearsay and smell like hearsay real­ly aren’t. Best of all, the real-witness rule makes it easy to explain to the judge why your objection should be sustained—and it won’t even occur to the pesky judge that you’re making one of those hated ‘speaking objections.’ ”

“Now, Angus,” said Judge Standwell with a twinkle in his own eye, “be nice.”

“Let’s try out some of these ideas,” said Angus. “Say you’re representing the plaintiff in an auto crash case. The defendant calls a witness to tell what he saw when the two cars collided.

“Hearsay? Of course not. The real witness is on the stand, and the rule is happy. This is the person you want to cross-examine.

“But now your opponent asks this witness what he was told by other people at the scene. The witness says a bystander told him your plaintiff was speeding and ran through a red light.

“See how easy it is to explain the situation when you object:

“ ‘Objection, your honor. The jury can’t tell whether some bystander the defense hasn’t even brought to court was telling the truth. This man’s not the real witness to what he’s talking about.’ ”

“That’s powerful,” said Judge Standwell, “and I wasn’t even aware that it was what some judges call a speaking objection. But why not talk about your right to cross-examine in your objection?”

“Great question,” said Angus. “The reason is, the judge and the jury don’t care about being deprived of some of your cross-examination. From their point of view, they are offended that they’re not hearing the actual real witness. They look at it from their standpoint, not the lawyer’s.”

“So when you’re objecting,” said Standwell, “you should make the judge and the jury aware that they are being cheated out of reliable testimony.”


“Judge,” said Angus, “I’m impressed. you’re beginning to sound like an advocate for reliable evidence. There is no way you can effectively cross-examine the people who are not in court by asking whoever happens to be on the stand some tough questions he can’t answer.

“Now, stop for a second and ask yourself: Could you get to this level of understanding by using the traditional definitions of hearsay?”

Judge Standwell chuckled and said, “When I was in law school, Professor Warbler invited the students in his commercial litigation class to watch him in action in court. I was sitting in the front row, and I swear, that’s exactly the objection Warbler made. He said, ‘Objec­tion, your honor. This is evidence that depends for its probative value on the veracity of an out-of-court declarant and hence is inadmissible as hearsay!’

“Judge Ortega said, ‘Overruled. And make your objections in English, counsel.’ Warbler didn’t know what to do.”

I almost choked on my cup of coffee.

“Let’s take another example,” said Angus. “You’re representing a defendant—the owner of a light plane that was involved in a midair collision.

“The plaintiff, who was flying the plane, claims the defendant was at fault for not properly maintaining the controls. Before the plaintiff took off, a bystander—the witness on the stand—heard an aircraft mechanic warn the plaintiff that the ailerons were sticking.

“Who do you want to cross-examine? Isn’t the mechanic the real witness?”

Judge Standwell thought for no more than 10 seconds. “Good question,” he said. “It depends on what you’re trying to prove. If you need to prove an actual defect in the plane, then the mechanic who knows the plane’s condition is the witness you need. But if your point is to show that the plaintiff was on notice there was a problem with the airplane’s control system and she took off anyway, the bystander is a real witness to what she was told.”

“Bravo!” said Angus.

“Now let’s take a contract case,” said Judge Stand­well. “You could have an idle bystander listening to two people on an elevator coming to an oral agreement in a verbal contract. First the buyer says, ‘You agree to deliver the truck to my shop by 10 tomorrow morning?’

“The seller says, ‘Agreed. Give me a $20,000 cashier’s check made out to me, and the truck is yours.’

“Then the buyer says, ‘Done and done. We got us a deal,’ and the two shake on it.”

“Good question,” Angus said. “The bystander is a perfectly good witness. An oral contract is formed by what people say, not what their secret intentions are. It means the words that form a contract—whether written or oral—are not hearsay. But see how easy it would be to get tangled up using the traditional hearsay test and come up with the wrong answer.

“Finally,” Angus said, “understand that the real-witness rule is not the only witness rule. You may still want to cross-examine someone else besides the witness on the stand, but this witness is the one you’re entitled to question about this statement.

“For the real-witness rule, that’s what counts.”

That’s when Judge Standwell stood up with a big grin on his face and said, “Now I know how Eliza Doolittle must have felt when Henry Higgins shouted out, ‘She’s got it. By George, I think she’s got it!’ ”

He was so pleased with himself that he left the rest of the scones behind.

Jim McElhaney is the Baker and Hostetler Distinguished Scholar in Trial Practice at Case Western Reserve University School of Law in Cleveland and the Joseph C. Hutcheson Dis­tinguished Lecturer in Trial Advocacy at South Texas College of Law in Houston. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

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