Legal Question in Civil Litigation in Massachusetts
Is Affidavit Hearsay?
Civil suit in Massachusetts regarding employment commissions, Def files motion for summary judgement and includes an Affadavit from a corporate officer of the Defending corp.. The affadavit makes statements 1) explaining the agreement between the employee and the company 2) the reasoning/understanding/explanation of the offer letter 3)evaluting/judging/comparing industry norms/practices with the company practices and agreement between corp and employee 4)flat out lies 5) completely irrelevant and vague statements to personally attack Plaintiff/employee.
The problem with 1) and 2) above is the corp officer wasn't with the company for the beginning 1/2 of the employees employment AND he didn't author the 'offer letter' he is explaining the underlying understanding about. Isn't this hearsay? Problem with 3) above; doesn't the guy have to be an 'expert' to make such conclusions? Isn't he precluded from being the expert because of his potential for bias?
My thinking is to file a Motion to strike Affadavit- is this the proper procedure to attack affadavit?
3 Answers from Attorneys
Re: Is Affidavit Hearsay?
If this lawsuit involves more money than you can afford to lose, get an attorney. You have some material that could help you to win, but without someone skilled in how to present it to the Court, it will not be properly considered.
If you are North of Boston, attorney Johnson could help you. If you are West, attorney Williams is very good (I have worked with him before). If you are south of Boston, I am in Taunton.
Some legal steps must be taken within specific times, or you waive your rights. Contact an attorney immediately, unless the amount is something you can afford to lose (and you can afford to pay the other side's attorney's fees). Good luck!!
Re: Is Affidavit Hearsay?
Yes. If you contact me, I'll send you a copy of
a motion to strike an affidavit as
deficient as the one you describe.
Re: Is Affidavit Hearsay? NOT EXACTLY.
You are right about 1 & 2; well, you're wrong in that it isn't "hearsay" but you're right in thinking it is an improper affidavit: the person is swearing to information that is NOT of his personal knowledge, isn't s/he?
Also you are somewhat right about #3 but not as clearly so.
Are you the same person that had received a default during discovery? If so, I take it that you didn't consult an attorney for help at that stage and have been brought now to this stage. Maybe now is the time to involve an attorney. You'll soon see why.
Hearsay is an in-court statement, which this is not. But you are right in the concept that he probably is passing along something someone else told him, or that this person is the wrong person to testify about the meaning of a letter he didn't write! If the writer is available to them, pointing out their error is more likely to get them to bring the right person in, don't you think? So be careful.
You need to understand the use of a summary judgment motion; if you file a cross-affidavit contesting the IMPORTANT facts upon which the motion depends (which are sworn to in the affidavit), then the motion should not be carried. If those facts are simply uncontested by an opposing affidavit (when you answer the motion), then they are taken as true for the purpose of the motion consideration even if they are not true, and simply hoping to strike the entire affidavit is a pretty weak "general" objection to the content of it. Don't get suckered in! Just because something is second-hand doesn't mean it isn't true. You need to introduce evidence of your own which contradicts his and which shows his to be second-hand knowledge.
How little money is at stake that you can spend all this time and not find an attorney to help you?
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
