Did you notice? Effective Dec. 1, 2019, Federal Rule of Evidence (FRE) 807 was changed. That’s the rule governing the so-called “residual hearsay” exception which, if its revised conditions are met, could allow hearsay evidence to be held admissible even if the out-of-court statement doesn’t fit within the array of other hearsay exceptions enumerated in FRE 803 or 804. In an era when emails and social media communications have proliferated explosively and persons express themselves more intimately, informally and unguardedly, the applicability of hearsay exceptions can be a big deal. Admissibility of a seemingly casual statement can make or break a case.
The hearsay rules are, of course, bread-and-butter weapons of trial lawyers. They also challenge judges on a continuous basis throughout a hard-fought litigation. But the rules governing hearsay evidence also can be important for lots of litigation-related folks who don’t actually try the cases. So, for example, in-house strategy case managers, insurance claims supervisors, and legions of trial assistants who support the trial lawyers need to be in a position to predict whether evidence will be allowed or not.
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