February 24, 2020 Articles

Outside Counsel Statements and the Party Exception to Hearsay

Anything you say can (and may) be used against you.

By Syed S. Ahmad, Patrick M. McDermott, and Latosha M. Ellis

Under Federal Rule of Evidence (FRE or Rule) 801(d)(2), an opposing party’s out-of-court statements may be admissible. Such party admissions are often consequential to prove an element of a claim or defense or to call into question a witness’s credibility.

One issue that can arise, however, is whether statements by a party’s outside counsel fall within this rule. There is a patchwork of court rulings on this issue. Due to the unique nature of the attorney-client privilege, courts have generally urged caution when the challenged statement is made by a party’s attorney. Nonetheless, in some jurisdictions, attorney statements have been admitted under FRE 801(d)(2).

This article summarizes noteworthy decisions where courts have examined the admissibility of outside counsel’s statements under Rule 801(d)(2).

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