EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 8, 2010

Jumping To Conclusions: Supreme Court Of Arkansas Seemingly Errs In Deeming Admission An Ultimate Legal Conclusion

Arkansas Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.  

Under this rule, Arkansas courts have drawn the same line as federal courts:  Witnesses can testify concerning ultimate issues but cannot testify about ultimate legal conclusions. And, in W.E. Pender & Sons, Inc. v. Lee, 2010 WL 391332 (Ark. 2010), the Supreme Court of Arkansas found that a witness crossed that line. I, however, disagree with its conclusion

In Lee, Burton Lee hired W.E. Pender & Sons, Inc.

to drill a well on a portion of Lee's property....As part of the process, Pender employees placed fiberglass mats, known as Mud Traks, around the drilling site. The mats, which were used to provide traction for the heavy trucks used in the drilling process, resemble sheets of plywood, measuring four feet by eight feet, and weighing approximately 110 pounds. The mats were needed because the ground was saturated and muddy.

After the well was completed, Jonathan McGinty, a Pender employee, began to back up a pipe truck, causing one of the fiberglass mats to fly out from under the truck's rear tire and strike Lee, who was standing nearby. As a result, Lee sustained injuries to his leg.

Lee thereafter filed a negligence action against Pender. Now, a lot went on in Lee, but I just want to focus on one evidentiary ruling. According to the Supreme Court of Arkansas, the following exchange occurred during McGinty's deposition:

Q: And has Mr. Lee ever said to you whether this was or was not anyone's fault?

A. Well, it was our fault.

Q. Okay. Did he [Mr. Lee] ever say that to you?

A. I can't remember. But I think he knew.

The circuit court excluded this testimony at trial, and, on appeal

Lee argue[d] that the circuit court abused its discretion in excluding McGinty's deposition testimony that the accident was "our fault" on the basis that such testimony invaded the province of the fact-finder. According to Lee, this testimony was substantial evidence of Pender's liability. Pender argue[d] that the court did not abuse its discretion, as admissions of fault are typically irrelevant.  

The Arkansas Supremes agreed with Pender, citing Arkansas Rule of Evidence 704 and finding that 

We simply cannot say that the circuit court abused its discretion in determining that this portion of Mr. McGinty's deposition declaring fault was inadmissible. This declaration of fault went beyond embracing the underlying issue and mandated a legal conclusion, thus, invading the province of the fact-finder.  

Really? This conclusion is baffling to me. Like its federal counterpartArkansas Rule of Evidence 801(d)(2) provides that admissions of party-opponents and their "representatives" are admissible nonhearsay. Under this rule, statements of fault are classic admissions and often the lynchpins of successful negligence actions. See, e.g., Lewis v. Gubanski, 905 S.W.2d 847 (Ark.App. 1995). Moreover, it is well established that "the restrictions applicable to opinion evidence, which are designed to elicit more concrete and informative answers, see [Rule] 701 and 704, are not applicable to an admission by a party-opponent, since such admissions 'are not made under circumstances in which alternative forms of expressions may be secured.'" Burlington Northern R. Co. v. Hood, 802 P.2d 458, 467 (Colo. 1990). Given these considerations, I simply do not see how the Supreme Court of Arkansas reached the conclusion that it reached.



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Perhaps the court's reasoning was off, but certainly the result is not -- especially under an abuse of discretion standard.

The first question is whether the statement is hearsay. If it's hearsay, then the court is absolutely wrong because it's not an opinion at all. The trial court answers this as a 104(a) question using the preponderance standard. Maybe the case itself is more enlightening, but based on the statements above, it's easy to see how a court could find that the basis of the witness' knowledge was -not- hearsay.

If it's not hearsay, then the witness is either giving his own opinion or speculating about his superior's opinion. It seems to me that he's speculating about his superior's opinion. In which case, the trial court was right to exclude.

But, assuming that the opinion is his own opinion, it's possible that the trial court could have excluded it for other reasons. Perhaps the trial court found that it was unhelpful under 701. Perhaps the trial court found that the proponent hadn't laid sufficient foundation that the witness had a sufficient basis for the opinion.

Posted by: Tom Jacob | Feb 8, 2010 7:41:04 AM

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