Arbitration Insight #31


This discussion addresses some of the more common issues in lay witness declarations:

A lay witness must have personal knowledge of the matter which he or she is declaring about. (See Evid. Code sec. 702, subd. (a).) If the witness did not experience (in other words, hear or see) the matter, it should not be discussed. Unfortunately, that is not often what occurs.

Even if the declarant has personal knowledge of another person’s statement, the declarant’s representation about what he or she has heard or read will result in a hearsay objection. Common hearsay exceptions are a party’s admission (sec. 1220), adoptive admission (section 1221), authorized admission (sec. 1222), a prior inconsistent statement (sec. 1235), prior consistent statement (sec. 1236), spontaneous statement (sec. 1240), contemporaneous  statement (sec. 1241), then existing state of mind (sec. 1250) and business record (sec. 1271). Note, as to the business records exception, the declarant must be familiar with the method of the record’s preparation, which the declarant may not have. A non-statutory hearsay exception is that the matter is not being offered for its truth but that argument, if made, undercuts the probative value of the evidence; for that reason, this response to a hearsay objection is better made at trial.

Lay witnesses can “authenticate” a writing, pursuant to Evid. Code sec. 1400, if they can show familiarity with the writing. The declarant must have some knowledge about the preparation of the writing, as an example, by being able to identify the handwriting or signature on the document. (Ruiz v. Moss Brothers Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846 [motion to compel arbitration properly denied where plaintiff did not recall signing the arbitration agreement and the moving party did not show that the signature on the agreement was the plaintiff’s].) Authentication may also be established by asking the opposing party to admit the existence of the writing or asking the author of the writing at deposition to identify the document. Merely attaching a writing as an exhibit to a declaration, without more, does not authenticate that exhibit. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855 [unsigned handwritten notes unaccompanied by other evidence of their authorship in opposition to an MSJ were properly excluded for lack of authentication].)

It is common for a declarant to offer an opinion that a party is a good person, honest and hard working. However, evidence of a person’s good character is inadmissible to support the credibility of that person unless evidence of the party’s bad character has been admitted for the purpose of attacking his or her credibility. (Evid. Code sec. 790.) Should plaintiffs object to such an opinion, the defendants might contend that the complaints’ causes of action attacked their credibility, while plaintiffs might argue in response to a similar objection by defendants that their answers to the allegations inferentially challenged the plaintiffs’ respective credibility.

Copyright Michael D. Marcus, August 2020

Leave a comment