Commercial Litigation and Arbitration

Agent Admissions — Lay Conclusions of Law

How much corroborative evidence do you need to be able to introduce the admission of an apparent agent? If you have enough, is the entire statement necessarily admissible against the principal?

Federal Rule of Evidence 801(d)(2) provides that an extrajudicial statement is not hearsay if:

The statement is offered against a party and is . . . (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship . . . The contents of the statement shall be considered but are not alone sufficient to establish . . . the agency or employment relationship and scope thereof under subdivision (D).

The plaintiff in Becton v. Starbucks Corp., 2007 U.S. Dist. LEXIS 43235 (S.D. Ohio June 14, 2007), was suing Starbucks for burns sustained from, yes, hot coffee. The claim was that the lids on two Starbucks’ cups were not properly attached and were defective. They came off and spilled hot coffee on him. He swore that ‛[a] woman identifying herself as the manager of Starbucks indicated to me that she witnessed the accident, and apologized for the lids not being properly attached to the cups, and further indicating that those particular cups and lids must have been defective.“

Starbucks argued that the statement was inadmissible because the plaintiff offered no evidence, other than the statement itself, to prove that the speaker was actually a manager or agent of Starbucks. The Court found sufficient corroboration in the fact that the speaker not only identified herself as manager but also provided paper towels and, most significantly, replaced the spilled beverages. District Judge James Holschuh concluded that: ‛Her conduct clearly supports a finding that she worked for Starbucks and was acting in the scope of her employment when she made the statement.“

Separately, Starbucks argued that the portion of the statement that the cups and lids were defective was inadmissible because it was couched as a legal conclusion. The District Court accepted that argument, citing Sixth Circuit precedent stressing that the problem with lay testimony containing a legal conclusion is that it conveys unexpressed, and possibly erroneous, legal standards to a jury, and directing the trial court to determine "whether the terms used by the witness have a separate, distinct and specialized meaning in the law different from that present in the vernacular." If so, the admission is out. Finding that the word ‛defective“ has such a meaning, Judge Holschuh concluded that the speaker’s assertion as to defect fell within this category, would not be helpful to the jury and excluded it.

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