When it comes to the bar exam, one of the areas that students struggle with the most is evidence, and within that topic the biggest struggle seems to occur in the world of hearsay. This article will teach you how to take hearsay from an area of concern into an area you look forward to, by providing guidance on how to handle this area of the black letter law (for purposes of this writing, all references refer to the Federal Rules of Civil Procedure (‘FRCP’)).
At first glance, hearsay can be overwhelming. After all, when it comes to the topic of hearsay, there are seemingly an endless array of definitions, exemptions (referred to as exclusions in FRCP 801), exceptions, and possibilities for potential questions and answers. However, I’m here to tell you today that hearsay is actually not that complicated, and as long as you follow these seven simple steps you will be able to do well when it comes to hearsay on the bar exam.
1. You must know the terminology.
Quite simply, you have to know what a statement is, who falls under the definition of a declarant, the definition of hearsay, and always be on the lookout for whether the statement is being made in court or was made out of court. This is the foundation of everything, and if you consistently overlook the basics, you will struggle, guaranteed. You must memorize these definitions verbatim and always be aware of who the declarant is and where the referenced statement took place.
2. You must understand hearsay and the rationale behind its potential exclusion.
What is hearsay? Broadly speaking, hearsay is an out of court statement offered for the truth of the matter asserted. As such, it is generally inadmissible unless an exception or an exemption applies.
You have to know that definition, but you also must understand why hearsay is potentially problematic in court. Imagine how unreliable the judicial process would become if anyone could come into a court and claim that they heard someone say something without proffering proof. What if someone misremembers? What if someone intentionally lies? This is the whole point of the rule against hearsay, in that the law strives to prevent unreliable or unprovable out of court statements from being used as evidence in court.
The best way I have found to teach students this rationale is to have them take on the mindset of a party in a trial. Imagine how it would feel to have hearsay be used as evidence against you without limit. Anyone could walk in and say whatever they wanted, claiming to have heard you say something or claiming to have said something, and offer it as truth of the matter asserted against you. The courts would potentially be filled with make-believe lawsuits, prosecutors would be able to get convictions based on the flimsiest of basis, and our judicial system would fall into turmoil. No one would be safe! You can also flip this around and place yourself in the mindset of the prosecutor or plaintiff, and just imagine what things could come into court that would prevent any successful court appearance because the defendant would be able to bring any number of people in to refute most evidence.
All of that said, you must also understand that despite this underlying rationale regarding hearsay, there is a competing rationale to allow credible evidence into court. This is the basis for the exemptions and exceptions to the rule against hearsay, where courts have more than just a statement to rely upon, and instead can somewhat lean on the surrounding circumstances that make the statement more likely to be reliable. And, this leads us to step #3.
3. You must think about the circumstances surrounding the potential hearsay.
Do these circumstances in the fact pattern tend to lend credibility to the statement or make it more reliable? If so, it makes it much more likely to come in under an exception or an exemption. Alternatively, if the circumstances seem to indicate no increase in credibility, or seem to add nothing to giving a sense that the statement is more reliable, your odds of such a statement being admitted decrease. This can serve as an early warning radar to help point you in the right direction when it comes to selecting the proper answer.
4. You must divide and conquer.
One of the issues that I consistently see students struggling with is keeping track of the relatively long list of exemptions and exceptions when it comes to determining whether or not a statement is hearsay, whether it falls under an exemption, or whether an exception is required.
However, I’m here to tell you that there is a relatively easy way to handle this with relatively little additional effort on your party. All you need to do is divide hearsay into three categories, and you will soon be able to confidently handle this material. The first thing you do is take three separate papers (or pages in your document, but I recommend separate papers) and create broad overview sheets. Label them as Hearsay Exemptions (things that would be hearsay but-for (as mentioned previously, sometimes referred to sometimes as exclusions), Hearsay Exceptions: Declarant Unavailable, and Hearsay Exceptions: Declarant May or May Not Be Available.
After you make these headings, the next step is to fill in under each heading the full list of what falls under each. The idea is that you create a very basic, one to two-line indicator of what falls under each heading (labeled a., b., c. or 1, 2, 3). After you finish this task, I recommend that you then count everything that falls under each specific heading, and place the total number applicable in parentheses next to each heading. Next, I suggest that you color code each of three three categories and each indicator. Example: Hearsay Exemptions (8).
5. You must take the time to learn and memorize!
Now that you have your lists made, the next step is to work on learning and memorization. This is one of those areas of that law for the bar exam where memorization is especially important, so you want to proceed with a plan. First, take each of your headings and short indicators from your overview sheet and expound upon them in a different document or on a different page. (You’ll want to keep your initial list relatively clear for memorization of what is under each category). Specifically, you want to go beyond the topical nomenclature and dive into the exact elements of these exemptions and exceptions. I highly recommend that you separate your work into three separate sections, piles, or documents (depending on your strategy and preferred methodology). Color code each page and part of your list according to the broad overview heading that it falls under (this will help you keep track of what you are working on and learning, making it easier to apply and retain). It is very important to memorize each and every element of each exemption and exception, as most bar exam questions come down to a missing element being the difference between an answer that is right and one that is wrong.
Now, you are set to begin the next aspect of learning through memorization, which occurs through repetition and review. Although normally trying to learn hearsay can feel overwhelming, now that you have divided it into categories you will find that you are able to concentrate on one of the three specific areas, boosted by the knowledge of how many exemptions or rules should fall under each heading, and with the color code assisting you as a reminder. You can also make your own mnemonics (make them personal to better remember). Additionally, you should either bring with you or make copies of your initial overview list, and you should review them on a regular basis. This will help you learn the law, create a manageable approach to this important topic, and help you also to keep track of which things should be under each category heading. Put some time into this, and you will be pleasantly surprised at how quickly you develop this knowledge.
Bonus tip for flashcard lovers: Although I seldom recommend bar students reinvent the wheel outside of their commercial courses, this is one area where I do highly recommend making your own flashcards. It’s a relatively small amount of flashcards, and if you ensure that you keep the heading, full exemption or exception (broken down into all elements), and color code this side of the flashcard, you’ll find that this builds nicely on the above.
6. You must make examples and engage with practice questions.
There are three final tasks in terms of becoming strong in this area of the law, assuming you have engaged in everything I have suggested. The first is to personally create one or two examples under each exemption or exception that will help you learn and understand the material. Next, whenever you are engaging in practice questions (which you should be doing regularly and with purpose), make note under your own examples of examples you see in questions to build your pattern recognition and cognitive abilities to increase awareness of pitfalls and red herrings. The last must-do is that whenever you stumble with a question, you must then engage directly with your created hearsay review materials to increase your memorization and understanding (for example, if you missed an element, work on memorization for that exception or exemption).
7. You must continuously review on a weekly basis.
You should never be “done” when it comes to studying for the bar exam, and hearsay is no exception. After you find that you have mastered the materials, make sure that you schedule at least a 2-3 times short review of the materials that you have created and continue to work on some practice questions. This will ensure long-term retention and increase your ability to find the correct answer.
If you do everything that I’ve written here, you will be able to confidently approach and get correct multiple-choice hearsay questions, while also improving any relevant essays that you may encounter on the bar exam. Your confidence, performance, and knowledge will grow rapidly, and you absolutely will improve your performance in this area. Try these techniques, and I am certain that you will see rapid improvement after you put in the time and work following the steps put forth here. Good luck, and I encourage you to reach out to me and let me know about your improvements and success!