Admissible or inadmissible, that is the question...

[kmckenn]

What is the name of your state? This is a "Federal Court" Case

Are statements made by a/the Defendant's Legal Counsel, within a memorandum/pleading (in opposition to a motion I had filed), filed with the court, admissible evidence???

Signed,

Mr. Helpless Pro-Se

 

[seniorjudge]

What is the name of your state? This is a "Federal Court" Case

Are statements made by a/the Defendant's Legal Counsel, within a memorandum/pleading (in opposition to a motion I had filed), filed with the court, admissible evidence???

Signed,

Mr. Helpless Pro-Se

That is an incomprehensible question.

The memorandum/pleadings are a part of the court record; you don't have to ask for the court record to be introduced into evidence because...well...it's the court record! The court takes judicial notice of its own record.

 

[kmckenn]

Well, I know it sounds incomprehensible... but it's (almost?) so significant of an admission, that is (almost?) the contested point. It seem so INCOMPREHESIBLE to me that they'd do it, that I had to check...

Anyone else care to weigh in on the OBVIOUS here? Such as to cite the Federal Rule of Evidence that pertains to it? Does 801(a) and 801(d)(2)(A) apply in this instance?

.....

 

[seniorjudge]

Well, I know it sounds incomprehensible... but it's (almost?) so significant of an admission, that is (almost?) the contested point. It seem so INCOMPREHESIBLE to me that they'd do it, that I had to check...

Anyone else care to weigh in on the OBVIOUS here? Such as to cite the Federal Rule of Evidence that pertains to it? Does 801(a) and 801(d)(2)(A) apply in this instance?

.....

These rules have to do with hearsay.

If you want to give us facts and details, we can give you educated opinions.

Otherwise, no one wants to guess at what you are talking about.

 

[You Are Guilty]

Here we go again

Rule of thumb - counsel's statements are not admissible evidence, whether written or spoken. There are exceptions of couse, but for the most part, the answer to your question is "no".

However, that does not preclude you from pointing out any perceived "admissions" in your response/reply/oral argument.

 

[seniorjudge]

Here we go again

Rule of thumb - counsel's statements are not admissible evidence, whether written or spoken. There are exceptions of couse, but for the most part, the answer to your question is "no".

However, that does not preclude you from pointing out any perceived "admissions" in your response/reply/oral argument.

This guy has had thirty some odd posts and wants to hint around but never tell us anything.

Sorry I got involved....

 

[Quaere]

Already admitted, that is the answer!

Although an attorney may have actually written the brief in opposition, you may as well consider the brief to have been written by the party himself. The party is bound by his attorney’s actions.

Like SJ said, there is no question of admissibility because it’s already been admitted to the record. You can make references to anything that is already in the record anytime you want.

There are different kinds of admissions. The context in which the admission was made, determines how binding the admission may be.

Check out the following site for a thorough explanation of admissions:

http://www.dcba.org/brief/febissue/2005/art10205.htm

 

[kmckenn]

QUARE, that appears to be a dead link... (Nevermind the DEAD LINK, somehow, twiddling with it, it came up, THANKS!)

RE: My reference to Hearsay 801(d)(2)(A).... From my perspective, it's significant in the fact that I think it states it is NOT Hearsay, IMPLICITLY qualifying the statement as legit evidence.

For whatever its worth, the statement made by counsel, is basically a statement that is impeaching the Defendants contention(s) from the onset.

SJ: Apologies for posting in the abstract, but I prefer not to post details in a public forum. There are some aspects of this case that I am prohibited in communicating (by law), other aspects that require confidentiality, so I must post in the hypothetical/theoretical context's. The stakes in this case are enormous (???,$$$,$$$.$$), so I do sincerely apopgize if my posts seem a bit less than rock solid content... It's nothing personal, just what I feel most comfortable with.

 

[You Are Guilty]

Although an attorney may have actually written the brief in opposition, you may as well consider the brief to have been written by the party himself. The party is bound by his attorney’s actions.

Like SJ said, there is no question of admissibility because it’s already been admitted to the record. You can make references to anything that is already in the record anytime you want.

There are different kinds of admissions. The context in which the admission was made, determines how binding the admission may be.

Check out the following site for a thorough explanation of admissions:

http://www.dcba.org/brief/febissue/2005/art10205.htm

Admittedly, no one knows what the hell the OP is actually refering to, but for the sake of accuracy for someone else who may read this...

A legal brief or memo is still not admissible evidence of fact(s) unless sworn to by someone with personal knowledge. Rarely will an attorney's brief or memo ever qualify as such. (Obviously this doesn't apply to the "law"/legal arguments made). And I'm certainly not referring to pleadings, or even discovery.

So as an example where an "admission" is not an "admission", let's say P is arguing that statute X is interpreted very broadly so it encompasses whatever his claim is about. D argues in his trial brief that the statute is not that broadly construed. As proof, he says, "if P was correct in his interpretation", the result of that would mean unwanted results X, Y and Z, thus showing that the intent was for the statute not to be that broad.

Now, we have P screaming, "D admitted I was right in his memo!"

In sum, without all the pertinent facts, no one will ever be able to answer the OP's question.

 

[kmckenn]

ORIGINAL, DOCUMENTED CONTENTION BY DEFENDANT: "... your termination has no relationship to any previous conversations you may have had with our local HR Manager"

COUNSEL's DOCUMENTED STATEMENT WITHIN MEMORANDUM: "In addition to its relevance to Plaintiff_s case (and thereby Defendant_s defense), the evidence is directly relevant to Defendant_s case because the intra-office interactions between three co-workers (and the related investigation by HR) is a central event in the case. For example, the disciplinary actions taken against the three individuals resulted at least in part from evidence uncovered based on conversations the individuals had with HR."

Is that snippet ENOUGH to for you to see the context, and is it, from what you can see, substantial enough as evidence, to where the Defendant has impeached their own prior REASON or what was NOT the reason?

http://www.webster-dictionary.org/definition/judicial admission

judicial admission - (law) an agreement or concession made by parties in a judicial proceeding (or by their attorneys) relating to the business before the court; must be in writing unless they are part of the court record; "a stipulation of fact was made in order to avoid delay"

JUDICIAL ADMISSIONS. Those which are generally made in writing in court by the attorney of the party; they appear upon the record, as in the pleadings and the like.

 

[You Are Guilty]

ORIGINAL, DOCUMENTED CONTENTION BY DEFENDANT: "... your termination has no relationship to any previous conversations you may have had with our local HR Manager"

COUNSEL's DOCUMENTED STATEMENT WITHIN MEMORANDUM: "In addition to its relevance to Plaintiff_s case (and thereby Defendant_s defense), the evidence is directly relevant to Defendant_s case because the intra-office interactions between three co-workers (and the related investigation by HR) is a central event in the case. For example, the disciplinary actions taken against the three individuals resulted at least in part from evidence uncovered based on conversations the individuals had with HR."

Is that snippet ENOUGH to for you to see the context, and is it, from what you can see, substantial enough as evidence, to where the Defendant has impeached their own prior REASON or what was NOT the reason?

All right, that's a bit clearer. In what type of document did counsel make each statement? (What was it titled, and who signed it?)

 

[kmckenn]

Defendant's 1st Contention: Defendant's ("Manangement") original and formal correspondence to Plaintiff citing reason(s) (or lack of), for termination of the Plaintiff, 4 days after the action/termination.
Defendants's 2nd Contention: Defendant's Memorandum in Opposition to Plaintiff's Motion to Preclude, By Defendant's legal counsel approximately 1.5 years later, after suit has been brought/filed against them.

The flavor of the Plaintiff's "Motion to Preclude" was, that on the basis of the Defendant's orginal contention ("... no relationship to HR, blah blah blah"), that the Defendant should therefore be precluded from discovery rights to parties in respect to that said relationship...

The Defendant's Counsel was arguing that it was indeed relevant, Defendant had right to discovery in that relationship, contending that the Defendant should not be precluded, thus the afore-quoted blah blah blah...

The original contention was signed by the immediate supervisior of the Plaintiff, of whom is a member of the Defendant's senior management team.
The Memorandum was signed by THEE Defendant's Counsel (the specific individual on the Court Record, as Counsel for the Defendant)... the Senior/Lead Atty, (IE - DA-MAN!) of the Defendants Counsel/Firm.

 

[You Are Guilty]

Defendant's 1st Contention: Defendant's ("Manangement") original and formal correspondence to Plaintiff citing reason(s) (or lack of), for termination of the Plaintiff, 4 days after the action/termination.
Defendants's 2nd Contention: Defendant's Memorandum in Opposition to Plaintiff's Motion to Preclude, By Defendant's legal counsel approximately 1.5 years later, after suit has been brought/filed against them.

The flavor of the Plaintiff's "Motion to Preclude" was, that on the basis of the Defendant's orginal contention ("... no relationship to HR, blah blah blah"), that the Defendant should therefore be precluded from discovery rights to parties in respect to that said relationship...

The Defendant's Counsel was arguing that it was indeed relevant, Defendant had right to discovery in that relationship, contending that the Defendant should not be precluded, thus the afore-quoted blah blah blah...

The original contention was signed by the immediate supervisior of the Plaintiff, of whom is a member of the Defendant's senior management team.
The Memorandum was signed by THEE Defendant's Counsel (the specific individual on the Court Record, as Counsel for the Defendant)... the Senior/Lead Atty, (IE - DA-MAN!) of the Defendants Counsel/Firm.

Not having seen the actual documents, I'd say you had about 50% of what you need. The first letter is arguably admissible (i.e. something the jury would be permitted to see). The second memo, as part of a motion only signed by the attorney, is the "legal argument" I mentioned above and is not something that a jury would ever see.

Had the other party written (and signed) that second memo themselves, you might have a (weak) argument, but you don't even have that.

End result, argue it anyway. If you're convincing enough, maybe the judge will buy it. You never know what they'll do.

 

[kmckenn]

So, if I were to file for Summary Judgement.... it's "Admissible" to the Judge, as part of the Record???

 

[Quaere]

There is not going to be any issue of whether the admission is binding or not. You’re having trouble seeing the forest for the trees here.

The defense has decided to tell a different story to the court than what they told you originally. They’ve decided to admit your termination was related to the meetings in question.

They will eventually have to explain why they denied this fact in their correspondence to you. Keep in mind they were not under oath when they wrote you that letter. They will say that now they ARE under oath and the current version of events is the real truth.

You would only want to use this “admission” if they revert back to their original claim at some point. You should expect them to be consistent with this new version of events though.

For the sake of argument, let’s say they do revert back to the original story. The brief does not contain a “judicial admission” unless the PARTY himself verified the brief. As long as it’s not a judicial admission, the party can always try to explain/retract the misrepresentation in the brief. It would be especially tough in this case, because the attorney used the second version of events to justify their need for discovery.

Still, he wouldn’t be the first attorney who was confused about some of the specifics of his own client’s case. As YAG said, the attorney’s statement does not serve as proof that the meetings were relevant.