TTTBE #7: Early Answer for Patrons (Patreon)

The answer to the question was (C).  Thomas is now 5-for-7 (71%) and has earned that "Gentleman's C-" on the bar exam.

This question tested Thomas's knowledge of the exceptions to the hearsay rule contained in Rule 801(d)(2) of the Federal Rules of Evidence concerning statements made by an opposing party in litigation.  Answer (C) was the best answer here -- because the painter works for the same company as the defendant and made the statement within the scope of his employment, the painter's statement is going to be admissible in court against the defendant construction company.

Answer (A) said that the painter is not qualified to make statements regarding non-painting duties; this was a popular wrong answer.  As we discuss on an upcoming episode of the show, this is an argument about the weight of the evidence and can be made during direct or cross-examination if the painter testifies; it's not a good argument about the admissibility of the statement.

Answer (B) said that the painter is not a participant as a negligent party in the catastrophic mistake that occurred.  This was not a good choice.

Finally, answer (D) said that the painter may testify as a subcontractor to what he observed while on the location.  While true, this answer doesn't address the question asked, which is whether the statement is admissible even if the painter doesn't testify.

We hope you enjoyed playing along with TTTBE; there's more analysis forthcoming in Epsiode 37, and Question #8 will drop on Friday along with Episode 38!  Keep playing!