Experienced, Dedicated,

and Compassionate

Request Free Consultation

Hearsay Evidence

10 Mar What is hearsay evidence?

You've probably heard the word hearsay, but what is hearsay evidence? Colloquially, people often use hearsay to mean something like "second hand information." But in the courtroom, hearsay is a term of art with a specific legal meaning. It's one of the most important rules of evidence. It's also one of the most complicated. Accordingly, to evaluate the admissibility of a piece of evidence (whether that evidence can be used in court), it's important to understand the hearsay rule . What is hearsay evidence? Hearsay evidence is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. There's a few parts to this, so let's take it piece by piece. First, it's important to note that "statement" includes both oral and written statements.  The second part just means statements made outside of court. The final part, "offered to prove the truth of the matter stated," is more complicated. Suppose I want to prove that Jim was driving a red car at the time of the accident. Now say Juan said to Christine: "Jim was driving a red car at the time of the accident." Juan's statement to Christine would be evidence that Jim was driving a red car at the time of the accident. But it would be hearsay if Christine testified to that statement to prove Jim was driving a red car. That's because I'm using the statement "Jim was driving a red car," to prove Jim was driving a red car. Now suppose I want to prove that Christine believed that Jim was driving a red car at the time of the accident. In this case, Christine's testimony that Juan told her that Jim was driving a red car would not be hearsay. That's because I'm not offering that statement to prove that Jim was driving a red car. Instead, I'm using it to prove only that Christine believed Jim was driving a red car. Therefore, it is not offered to prove the truth of the matter stated (that Jim was driving a red car) and is not hearsay. What is the significance of evidence being hearsay? So that's hearsay. But what is the significance of the hearsay rule? In general, hearsay evidence is inadmissible in court. So, if one side tries to offer hearsay evidence, the other side can object and ask the judge not to allow the evidence. If the judge determines the evidence is hearsay, the judge will not allow that evidence to be admitted (unless there's an exception, which is discussed below). But remember, a statement is only hearsay if it's offered to prove the truth of the statement. So a statement might be inadmissible for one purpose (to prove that Jim was driving a red car), but admissible for another (to prove that Christine believed Jim was driving a red car). Specifically, lawyers often use out of court statements to show things like knowledge or intent. If there is no reason to offer the evidence other than the proving the truth of the matter stated, the party seeking to offer the evidence will need to find an exception to the hearsay rule. Also, note that when an out of court statement is offered to prove something other than the truth of the matter stated, the judge will typically give the jury a special instruction. For example, take the red car example above. There, I offered Christine's testimony about Juan telling her that Jim was driving a red car to prove she believed Jim was driving a red car. This is not hearsay, but I can't use it to prove Jim was driving a red car. So the judge might instruct the jury that it may not consider that evidence in deciding whether Jim was driving a red car. Of course, in practice, it's difficult for jurors to consider evidence for one issue and ignore it for another, but that's the rule. Exceptions to the hearsay rule Hearsay is subject to numerous exceptions. That is, in certain situations, a statement may be admissible even if it is technically hearsay. For example, probably the most common is the opposing party statement or party admission exception. Under this rule, one side can freely offer statements made by the opposing party, even if the opposing party made those statements out of court. For example, say Ann sues Casey for stealing Ann's purse. Ann could call Ali to testify that Casey told him that he stole Ann's purse to prove that Casey stole Ann's purse. Normally, this would be inadmissible hearsay, since it's an out of court statement and Ann is offering it to prove the truth of what's stated. But, because it's the statement of the opposing party, Ann can offer this statement. Keep in mind, however, that this only applies to statements made by an opposing party. You cannot bring in your own statements under this exception. Policy rationale for the hearsay rule and it's exceptions The hearsay rule has numerous other exceptions. There's too many to list here, but thinking about the purpose of the hearsay rule can be a shortcut to finding exceptions. The hearsay rule exists because statements made under oath, in court, where the witness is subject to cross-examination by attorneys, are more reliable than those made casually on the street. If somebody is making statements that are damaging to your case, you want to be able to cross-examine them to test the reliability of those statements and the trustworthiness of the person making them. You can't do this unless that person is in court under oath. A lie can be debunked under cross-examination, but even an egregious lie is difficult to rebut with no opportunity to confront the liar. But sometimes, this isn't as important. For example, the opposing party statement exception discussed above makes sense in light of the purpose of the hearsay rule. You can't cross-examine yourself so there's no need to ensure an opportunity to cross-examine. Additionally, there's another exception for statements against...

Read More
New Independent Contractor Law

06 Jan New Independent Contractor Law

California's new independent contractor law went into effect on January 1, 2020. The law, commonly referred to as AB 5, would make it harder for employers to treat workers as independent contractors. It's too early to know exactly what effects the new law will have, but it will likely reshape the gig economy, which relies heavily on independent contractors. Effects of the new independent contractor law The practical effect of the new law is the reclassification of many independent contractors as employees. The new law changes the test used to determine whether someone is an employee or independent contractor. As of January 1, 2020, the law emphasizes the level of control that employers exert over the worker. And it focuses more on whether the worker's job is part of the employer's core business. In theory, this should require companies like Uber and Lyft to treat their drivers as employees. But it's unclear exactly what this will look like in practice. There is already legal controversy about the new law Even prior to it going into effect, Uber said it didn't intend to comply with AB 5. Uber and Postmates have already filed a lawsuit, claiming AB 5 is unconstitutional. More employers will likely file similar lawsuits. Furthermore, misclassified employees will likely start bringing lawsuits of their own. There are advantages to being an employee and misclassified employees can recover penalties from employers. So employers who refuse to comply with the new rules may find themselves defending lawsuits filed by misclassified independent contractors. If you believe your employer has misclassified you, contact the Khadder Law Firm today for a free initial consultation. For updates on this and more, follow us on Twitter and Instagram. And like us on Facebook....

Read More

21 Nov Proving employment discrimination

Proving employment discrimination can be challenging. Most employers won't openly admit to discriminating against you. But that doesn't mean they haven't done so. Nor does it mean you can't prove that they did. You can still use circumstantial evidence to prove discrimination in court. Unfortunately, employers can sometimes convince a judge to throw out a lawsuit before it gets to a jury if there's not enough evidence. So how do you prove your case to the judge when you don't have any direct evidence of discrimination? And how do you convince a jury your employer discriminated against you when the employer can deny they did? Proving employment discrimination through direct evidence The first way of proving employment discrimination is through direct evidence of discriminatory animus. If your employer fired you and explicitly said it was because of your skin color, that's direct evidence of discrimination. In this instance, proving discrimination would simply mean proving what the employer said. If you have direct evidence of discrimination, that should be enough evidence to get you to the jury. If the jury believes that evidence, you're in a good position to win your case. But this is not typical. Usually, the employer offers some legitimate reason for taking the action it took. This can be anything, but it common examples are performance or trying to save money on labor. Even if the reason the employer gives is obviously untrue, you still don't have the same direct evidence of discrimination. In these cases, the employer will often file a motion asking the court to dismiss the case because there's no evidence of discrimination. So how do you prove discrimination in such cases? McDonald Douglas burden shifting Fortunately, the second way to prove employment discrimination, called the McDonald Douglas test, is made for these types of cases. This Supreme Court created this test in McDonald Douglas v. Green, hence the name. The Supreme Court created this test to help analyze cases lacking direct evidence of discrimination. Here's how it works. Initially, the plaintiff has the burden to establish a prima facie case of discrimination. To establish a prima facie case of discrimination, the plaintiff must show (1) that she was the member of a protected class, (2) that she suffered an adverse employment action (e.g. firing, demotions, etc.), (3) that she was qualified, and (4) that similarly situated employees not within her protected class were treated more favorably. For example, if you are an African-American who was terminated despite being qualified and performing adequately, while similarly situated non-African-Americans were not terminated, you would have a prima facie case of discrimination. This is a fairly easy standard to meet. You just need some evidence of each element. Once the employee has established a prima facie case, the employer has the burden to offer a legitimate non-discriminatory reason for the adverse employment action. Once, it does, the burdens flips back to the employee to show that the employer's offered reason was not actually what motivated it. If you can provide some evidence that the reason the employer offers wasn't the real reason, the judge should let your case go to the jury. Proving discrimination to a jury Once you get to the jury, the distinction between direct and circumstantial evidence goes away. You simply use whatever evidence you have to convince the jury that the employer took action against you for an unlawful reason. Of course, direct evidence is best. But you wont have that in most cases. At this stage, there's all sorts of ways to convince the jury. How you do so depends on the facts of your case. For example, say the employer insists they fired you because you were not performing well. In that case, you could use a recent positive performance review to show that's not a credible reason. Likewise, if your boss made derogatory comments about you, that's evidence that the employer's decisions was based on a discriminatory motive. If you believe your employer has discriminated against you, contact the Khadder Law Firm today for a free consultation. For more, follow us on Twitter and Instagram....

Read More
She could be an employee or independent contractor

19 Nov Employee versus Independent Contractor

Many people are unsure what the different classifications of employee verus independent contractor mean. So what is an employee? What is an independent contractor? What's the difference between the two? And why does it matter? Employee versus independent contractor: what's the difference? People often use worker and employee to mean the same thing. But this isn't actually correct. Some workers are employees, others are independent contractors. So what's the difference? It's actually a fairly complicated legal question. Under both state and federal law, courts look at all kinds of factors to determine whether someone is an employee or an independent contractor. For simplicity's sake, someone is generally an employee when their employer exercises a lot of control over their work. For example, someone that goes to their company's place of business everyday, wears their company provided uniform, uses company equipment, and does what the company tells them to do all day is an employee. Employees work directly for the employer and the employer pays them and provides whatever benefits the employee might get. At least until recently, this has been the dominant working arrangement in developed economies. Conversely, an independent contractor is a worker that is not an employee. This traditionally meant someone who contracted to perform a certain task. For example, the plumber you hire to fix your leaky faucet is an independent contractor. You haven't hired her as employee. You've agreed to pay her to perform a specific task in exchange for a set fee. Once she's finished, you pay her and you both go your separate ways. Why the difference matters Employee versus independent contractor is not simply a legal distinction that exists only on paper. Whether someone is an employee or independent contractor has important real world consequences. First, employees are often entitled to certain benefits, such as health insurance or retirement plans. Independent contractors are not. Second, many labor and employment regulations apply only to employees. Most state and federal wage and hour laws don't apply to independent contractors. For example, you don't need to pay that plumber you hired minimum wage or overtime. Likewise, the state and federal laws prohibiting employment discrimination and workplace harassment generally do not apply to independent contractors. So if you're classified as independent contractor, you may not be to sue if you're discriminated against. Third, and finally, having employees requires employers to provide things like workers' compensation coverage. Conversely, a company does not need to provide workers' compensation coverage for its independent contractors. Likewise, for things like unemployment insurance and social security. The changing landscape Unsurprisingly, the use of independent contractors is on the rise. Companies see it as a way to cut costs without cutting vital labor. But this also leads to abuse. Companies often hire people as independent contractors even when they should technically be employees under the law. Of course, misclassifying employees as independent contractors is unlawful and companies can be subject to penalties for doing so. But, because most people wont sue, companies usually get away with it. Naturally, the increasing use of independent contractors has caused some push back. California recently passed a law cracking down on the use of independent contractors. Other states are also considering similar laws. These laws target workers in the gig economy, such as Uber or Lyft drivers, but will affect other workers as well. If you believe you are misclassified as independent contractor, contact the Khadder Law Firm today for a free consultation. For more follow us on Twitter and Instagram....

Read More
Signing a severance agreement

18 Nov Signing a severance agreement

Terminated employees often have questions about signing a severance agreement. Specifically, they want to know whether they should sign a severance agreement that their former employer offers them. Unfortunately, this is can be a complicated question. Before deciding to sign a severance agreement, you need to consider a number of factors, including the terms of the agreement, your situation, and your goals. You should also strongly considering consulting with an employment attorney to help you navigate this important decision. What is the effect of signing a severance agreement? A severance agreement is a contract which sets the terms of an employee's severance from an employer. Often, an employer will propose a severance agreement to an employee it has terminated. The specifics differ, but severance agreements usually center on two important terms. First, the employer will agree to pay the employee some chunk of money. Second, the employee will agree to waive any claims she might have against the employer. There are all sorts of other provisions that might be in a severance agreement, but those are the two most common and important. In essence, you're giving up your right to sue your former employer in exchange for money. For example, suppose your employer fired you for complaining about discrimination or harassment. That's unlawful retaliation and you could sue your employer for retaliating against you. But if you signed an agreement waiving your right to sue, that could prevent you from being able to pursue your case. Accordingly, you may want to think twice about signing such an agreement if you think you may have claims against your former employer. Other things to look out for in severance agreements While a waiver of claims is generally the most important part of a severance agreement, there are other potential terms to look out for. For example, many proposed agreements contain non-disclosure agreements or NDAs for short. Individual NDAs differ, but generally, they require parties to keep something secret. They can also prevent you from saying anything negative about your former employer. Another common term in severance agreements are arbitration clauses, in which you agree to submit any claims to arbitration and waive any right to sue in court. Arbitration is essentially a private court system. While an arbitration agreement is not a waiver of claims, arbitration is generally more friendly to employers than employees. As such, agreeing to arbitration is a big decision that you should not take lightly. Factors to consider when presented with a severance agreement Obviously, you should be skeptical of anything your former employer offers you. Chances are, they're not offering you severance pay out of the goodness of their heart. Instead, they're doing it because they believe they'll be better off with such an agreement in place. But that doesn't mean that you should never under any circumstances sign a severance agreement. There may be situations in which it makes sense to sign one. There's an endless number of a factors that might go in to that decision. For example, what are the terms? If your employer offers you a very large sum in severance pay, maybe it's worth it. How badly do you need the money? If you desperately need the money, the conditions of accepting the severance pay may be less severe than foregoing that severance pay. Are you aware of any potential claims you might have against the employer? If you believe you have a claim for harassment or discrimination, you probably don't want to give up those claims for a small amount of money. These are only a few of the factors to consider. The role of an attorney in a severance agreement If your employer has recently terminated you, the best thing you can do is contact an employment attorney. While you'll need to make the final decision regarding signing a severance agreement, an attorney can be helpful in a number of ways. First, an attorney can tell you what's in the agreement. Employers often draft agreements to be as complicated as possible. They hope that you'll sign without understanding what you're agreeing to. If you don't know what you're agreeing to, you can't make an informed decision. An attorney can help you understand exactly what's in there. Once you fully understand what's in the agreement, you can make the decision that is best for you and your family. Second, an attorney can identify any claims you might have. Because signing a severance agreement typically means waiving your claims, it's important to know what claims you have. If you've experienced severe sexual harassment, you probably know that you have a claim. But many claims are less obvious, some can be quite technical. If you're not an attorney, you may have potential claims of which you're not aware. An employment attorney can evaluate your situation and determine what, if any, claims you might have. Once you've identified potential claims, you can determine whether your former employer is offering fair value for the waiver of those claims. Finally, an attorney can help you negotiate a better severance agreement. Usually, the employer will send a proposed agreement and give you a sharp deadline to sign it. Obviously, the employer is going to draft an agreement that's advantageous to them. An attorney may be able negotiate a more fair agreement. Of course, you can try negotiating with the employer yourself. But an experienced employment attorney will likely get better results. So what should I do? Unfortunately, there's not a one size fits all answer. While consulting an attorney is an important part of the process, it's ultimately a decision you'll need to make for yourself. The most important thing is that you understand what you're agreeing to and what you're giving up by signing. Once you understand what's in the agreement, you can weigh the factors and do what's best for you and your family. If you need an employment attorney to review or help negotiate a severance agreement, contact the Khadder Law Firm today. For more, follow us on Twitter and Instagram.    ...

Read More