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Trial coming up. Witness not available. Does hearsay apply when I talked to an attorney for the other side?

Woodland Hills, CA |

I had given some information to the attorney for the other side in a lawsuit Trial is soon.

. I know I can testify as to what I told him, but he isn't available for trial so is it hearsay for me to say what he told me in response?

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Attorney answers 4


The analysis as to whether specific testimony may be inadmissible hearsay requires substantially more facts than you have provided here. But perhaps it will be helpful for you to know that, even if the testimony is hearsay in the sense of "second-hand," hearsay is only inadmissible as evidence if (2) there is an objection by the opposing party, and (2) the proffered testimony does not meet one of the numerous statutory tests for admissible hearsay.

Hearsay is a complicated and elusive concept that lawyers and judges struggle with and argue about during trial. You will need legal advice to make a reliable determination as to whether the evidence you are concerned about is inadmissible hearsay.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.


Attorney McCall offers sage advice.

Your post is a bit confusing. Are you saying the attorney is not available for trial?

Generally speaking, it is hearsay for you to say what another person said in response. The rules regarding hearsay are indeed tricky.

If a key witness is not available for trial, you are better off asking for a brief trial continuance so that this witness is available to testify at trial, or alternatively, have the witness's deposition taken with the deposition testimony admitted into evidence.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


This is confusing. You want to admit a statement that a potential witness told the opposing attorney -- and that the opposing attorney later repeated to you? That's actually double hearsay. It seems quite difficult to overcome a hearsay objection here, but more facts are needed.

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The way I interpret your question you want to testify what the other atty told you outside of the courtroom? This would be difficult to do. If it was in the course of settlement discussions, it may be inadmissible for reasons other than hearsay. Further, it is a battle sometimes to call the other atty as a witness. Have you subpenaed the atty to trial? if the atty is still the atty for the other side, the court isnt very fond of one side trying to call opposing counsel as a witness. this could require the atty to w/draw as atty. if the atty was relaying to you, something another person said, you can try to subpena that person to court. If that person denies saying it, then the atty may be necessary to call as a witness to impeach the other.