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Is a 3rd party letter admissible evidence in small claims court?

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KTMom

Junior Member
What is the name of your state? Virginia

I will be presenting a small claims case in which I am trying to get money back for a botched psychological report.

As part of my case, I would like to introduce into evidence a letter written by a 3rd person, an educational consultant, who advised me that the report that I received was useless and that I would have to get my daughter re-tested as a result.

My question is if this letter is admissible? The consultant will not be present in court to testify, so could I just introduce this letter as evidence of her opinion in the matter? If not, can I just tell the court what her opinion was, or is the whole thing just considered hearsay?

Thanks for your help!
 


racer72

Senior Member
My question is if this letter is admissible?
Probably not. The defendant cannot question a letter. You can present the info in the letter, it will be up to the judge if it is acceptable.
 

justalayman

Senior Member
I think for it to even be considered it needs to be signed and notarized by the author. I believe it is still up to the judges discretion to give it any weight.
 
S

shell007

Guest
The consultant will not be present in court to testify,
I'm assuming you asked the consultant to be present in court to testify, but I'll ask anyway.... Did you in fact ask the consultant to be present in court and consultant said NO?
 

KTMom

Junior Member
Thanks for the responses. No, I did not ask the consultant to testify (she charges $200 for her services plus travel time). Does it matter? What she states in the letter is not the crux of my case. I believe that I can show many errors in the report that stand alone aside from any expert's opinion.

What I am afraid of though is that I might have a judge who might see me as just a layperson and give the defendant's testimony more weight because they are the so-called professionals. I thought that by at least having a letter written by someone else in their profession it would help me level the playing field a little.
 

dcatz

Senior Member
Small Claims courts are more informal than higher courts and, as a practical matter, it's difficult for the court to exclude evidence. However, for this reason, once the evidence is presented, the court will give it what "weight" (evidentiary value) it feels is appropriate. I expect that the court will accept and consider the letter and that you'll be able to testify to the opinion and put the letter in context. If the letter bears directly on a central issue of the case and the opposing side disputes it, the value of the letter will suffer, because the consultant is not present to be examined.

Naturally, the letter should be signed but, since the consultant sent it to you and it was not prepared in anticipation of the Small Claims case, I would not expect that having it notarized or signed under penalty of perjury will make any difference. And, if it were offered for another purpose - eg. to show the reason you had your daughter re-tested - rather than to prove that the test was bothched, it's more likely to escape any hearsay concerns.

If you're going to "level the playing field" by attempting to directly refute the testimony of the defendant(s), the letter probably will not be given the weight that you wish for the reasons that you expect
 

justalayman

Senior Member
dcatz said:
Naturally, the letter should be signed but, since the consultant sent it to you and it was not prepared in anticipation of the Small Claims case, I would not expect that having it notarized or signed under penalty of perjury will make any difference.

I'm sure you know the old saying..an ounce of prevention**************.

Once you get into court it's too late to say "oh, I didn't know" (most of the time)
 

dcatz

Senior Member
Originally posted by justalayman

I'm sure you know the old saying..an ounce of prevention**************.
Yes, I do know it, as well as "a stitch in time saves . . ." and "a rolling stone gathers . . ." and a number of others. In this instance, my response was directed to the OP and was prompted by a concern that her conduct not be dictated by old aphorisms.

By implication, she has the original letter, with an original signature. Since the notarization would have to be the author's, the most that the OP could get would be a notarized copy of the original. There are only a limited number of instances where a third party's desposition, signed under penalty of perjury, is going to be admitted in lieu of direct testimony. If you are aware of instances where affixing a notary's seal to a copy of a document would cause it to transcend the probative value of the original, you should inform the OP. I could not immediately, but I was concerned that a failed effort to obtain a notarized copy, if she believed it necessary, would cause the OP to forego what value (albeit limited) she might get from presenting the (unnotarized) original.

On the possibility that time constraints presented a problem, I did not mention that, having filed her case, the OP has subpoena power. If she still has the time, she can compel the consultant's appearance for considerably less that $200/hr. I haven't checked on the statutory compensation for compliance with a subpoena in Virginia. Perhaps you have? My guess is that, if the consultant is proximate and susceptible to being served, the expense would be well under $100.
 

KTMom

Junior Member
One thing that I didn't make clear -- I reside in Virginia (as does the consultant), but the defendants reside in ****land, the site of the dispute and where the court case will be litigated. I apologize for not properly indicating this in the beginning of my thread.

Travel time would be significant, so can you subpoena a witness at their own expense, or would you need to reimburse them at the amount of their normal wages?

The other complicating factor is that the consultant is also a prominent member of a trade association to which the defendants belong and I think she would be hesitant to state anything strongly in my favor, preferring to remain a neutral party. That is one reason why I thought just having a simple letter, without her being able to sugarcoat it, would be more effective.

What I am hearing is that, as a legal matter, the letter itself is not admissible evidence, but because of the more informal court setting, the judge could use his discretion to consider it.

As a practical matter, am I better of just retelling what the consultant told me (which is also hearsay)? Again, this is not the crux of my case -- the main point is that the psychologist I originally hired passed away and the student who took over the case made many mistakes on scoring the test results. The comments and/or letter of the consultant would just give more support to my argument.

I just want to make sure that I am doing everything correctly before I get to court -- I would hate to annoy the judge or do something that would make him see my case unfavorably.
 

dcatz

Senior Member
You can subpoena a non-party witness and, while the party compelling appearance and/or production has an obligation to reimburse expenses, those expenses are normally fixed by Rule or Statute. It's normally at a reasonably minimal rate to cover milage, parking etc. The court in the subject state could tell you the rate.

A bigger issue than the rate is the distance to be traveled. Limitations under 100 miles are common. The court in the subject state could tell you that state's limits but, if they are exceeded, the consultant could move to quash the subpoena.

What I am hearing is that, as a legal matter, the letter itself is not admissible evidence, but because of the more informal court setting, the judge could use his discretion to consider it.
Basically, yes. It's very likely that the letter gets in and the Court decides what importance is ascribed to it.

Personally, I would agree with your assessment of how the consultant is likely to approach testifying and would expect you to be as well-served by offering the letter and giving it context.

I just want to make sure that I am doing everything correctly before I get to court -- I would hate to annoy the judge or do something that would make him see my case unfavorably.
If you prepare your case and are able to present it clearly and succinctly, the judge will appreciate that and is not likely to view the case unfavorably. No one knows how you'll fare on the merits.
 
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BelizeBreeze

Senior Member
Contrary to what you've been told, without substantiation, the letter is heresay and not admissible.

You either need to subpoena the consultant to verify the letter or leave it at home. If you do submit it and the judge does allow it to be entered, that's reversable error and grounds for appeal.
 

dcatz

Senior Member
You either need to subpoena the consultant to verify the letter or leave it at home.
I've made the observation before that reasonable minds can differ. In this instance, I differ with Breeze, and not because the statement about the letter being hearsay is incorrect (I didn't think that was disputed or that you were told that it wasn't) but because of where it leads you.

You're told to get the consultant (which has drawbacks that were discussed) or leave the letter at home (which you would prefer not to do). I don't think the risks are as great as portrayed and, as long as you recognize them (which you appeared to do), you make a cost-benefit decision.

Small Claims courts relax but don't abandon rules of evidence and procedure. Inadmissable evidence gets in every day in every court. If one had to lay a proper foundation for the admission of evidence and exclude everything that wasn't properly introduced, it's not an exaggeration to say that little or no evidence would get in, courts couldn't manage their calendars and the majority of cases wouldn't get heard. A full case hearing is normally allotted 15-20 minutes tops. It just can't be done.

Additionally, SC courts are often referred to as "courts of no precedent" because there is normally no transcript or record of the proceeding, evidence is not retained and there is little or nothing to review on appeal. If a SC judge says a letter was handed to him, he put it aside and didn't read or consider it when making his ruling, there's nothing to refute that.

Finally, a hearing on appeal is a "trial de novo", a new trial, so you do the whole thing again from scratch. If it ever got that far, maybe you do bring the consultant the second time around. So my opinion is that, since the same things don't happen in SC as in higher courts, you weigh different considerations. Nothing Breeze says is wrong but, as long as you understand the upside and downside to whatever decision you make, my opinion is that it is very improbable that it will have any bearing on your case. You make the choice.
 
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BelizeBreeze

Senior Member
Although Small Claims courts have a more relaxed application of the rules of evidence, even in this setting in Virginia, evidence entered into the record, must have probative value.

The Small Claims Court in Virginia, has concurrent jurisdiction with the General District Court for all cases involving claims up to $2,000. Cases involving claims between $3,000.00 and $15,000.00 may be heard either in the General District Court or in the Circuit Court. VA. Code 16.1-122.1 and 122.2; VA. Code 16.1-77(1).

If the judge is so stupid as to allow unsubstantiated testimony without allowing the defendent the right to cross examine, then within 30 days the Defendent will file an appeal bond, refile in District Court and the letter, sans consultant, is lost.

The letter, and any transitory victory it may afford you in small claims, is worthless without verification from the writer of the letter.
 

KTMom

Junior Member
I understand what you're saying, Belize, but don't you think that as a practical matter using the letter to support a point can't hurt? I don't have any experience with this stuff, but I would think that small claims court judges are used to people presenting cases without any legal guidance. And even if the judge disregards the letter for reasons you stated, I have other arguments to support my case.

So isn't the worst that could happen is just that the judge disregards the letter and decides the case on the merits of my other arguments? And if the defense happens to appeal, I still haven't lost anything because, as dcatz said, the new trial would start from scratch. Or do you think that the judge would somehow penalize me for not knowing the standards for what's admissible evidence?

BTW, I didn't make this clear (and perhaps it makes no difference in your response), but I reside in Virginia and the case is being heard in ****land.
 

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