From the Trial Notebook: Why My Client Couldn’t Explain Why She Changed Doctors
Part One of our Trial & Evidence Series
One of the most interesting evidentiary issues from one of my recent jury trials did not involve an obscure exception to the hearsay rule.
It involved a question that, at first glance, seemed perfectly ordinary.
My client had treated with an orthopedic physician after being injured. During her testimony, I asked a question pertaining to what the physician had told her during that appointment.
Defense counsel immediately objected:
“Objection. Hearsay.”
At sidebar, I explained that I was not offering the doctor’s statements to prove that the doctor’s medical opinions were correct.
That was not the purpose of the testimony.
Instead, I wanted the jury to understand why my client made the decisions she made afterward—why she sought treatment from another physician and why she chose not to return to the original doctor.
The significance of the doctor’s statements was their effect on my client as the listener.
Initially, the court agreed with that analysis. After additional discussion, however, the objection was ultimately sustained.
Whether the ruling was right or wrong is not really the point of this article. The experience reminded me how often lawyers immediately begin discussing exceptions to the hearsay rule without first asking the question that should always come first:
Why is this evidence being offered?
That question often determines whether the hearsay rule applies at all.
The First Step Lawyers Sometimes Skip
Hearsay is generally understood as an out-of-court statement offered to prove the truth of the matter asserted.
Every hearsay analysis should therefore begin with a basic question:
What fact am I trying to prove by offering this statement?
If the statement is offered for some purpose other than proving the truth of what was said, the hearsay rule may not apply in the first place.
In injury and wrongful death cases, three recurring categories frequently produce disputes: statements offered to show their effect on the listener, statements offered to show the declarant’s state of mind, and legally operative words.
Effect on the Listener
The issue from my trial falls into the first category.
An out-of-court statement may be relevant because it explains why another person acted, rather than because the statement itself was true.
Examples commonly arising in injury litigation include:
- Why a patient sought a second medical opinion.
- Why a patient discontinued treatment with a particular physician.
- Why a nursing home resident’s family demanded a transfer.
- Why a truck driver continued driving after speaking with dispatch.
- Why an employee reported a dangerous condition.
- Why a property owner investigated a complaint.
In each example, the significance of the statement may lie in what the listener did after hearing it.
Suppose a patient testifies that a physician said something during an appointment that caused her to seek care from another doctor. If the statement is offered to prove that the physician’s medical conclusion was correct, it may constitute hearsay. But if it is offered solely to explain why the patient sought additional treatment or did not return to that physician, the statement may be offered for its effect on the listener rather than for its truth.
Why the Doctor’s Exact Words Matter
One lesson from that exchange is that the actual words used often matter just as much as the purpose for which they are offered.
Suppose a physician tells a patient, “You need surgery,” and the testimony is offered solely to explain why the patient sought a second opinion. The proponent may argue that the statement is not hearsay because it is offered only to show its effect on the listener.
At the same time, the court may recognize the practical reality that once the jury hears those words, it may be difficult to separate the limited non-hearsay purpose from the obvious implication that the physician actually believed surgery was necessary.
In that situation, the court may conclude that the danger of the jury considering the statement for its truth outweighs its limited value in explaining the patient’s conduct.
The lesson for trial lawyers is twofold.
First, counsel should carefully identify the precise purpose for which the testimony is being offered before asking the question.
Second, counsel should consider whether the jury truly needs to hear the exact words that were spoken or whether the same point can be established through more narrowly tailored testimony.
For example, rather than immediately asking, “What did the doctor tell you?” counsel might first ask:
- “After that appointment, did you decide to seek treatment from another physician?”
- “Did your conversation with that doctor affect your decision about where to obtain further treatment?”
- “After speaking with that doctor, did you return for additional treatment?”
Those questions may allow the witness to explain her subsequent conduct without unnecessarily placing the substance of an otherwise inadmissible medical opinion before the jury.
A carefully phrased question can preserve the legitimate non-hearsay purpose while reducing the risk that the testimony will be viewed as an attempt to introduce the doctor’s opinion for its truth.
State of Mind of the Declarant
A second recurring issue involves statements offered to show what the speaker was thinking, feeling, or intending.
Imagine a nursing home resident who repeatedly tells family members:
“I’m afraid to ask the nurses for help.”
The statement may not be offered to prove every implied accusation against the nursing staff. Instead, it may be offered because it reflects the resident’s fear, anxiety, or emotional condition while living at the facility.
Likewise, in wrongful death litigation, a decedent’s statements concerning fear, intent, pain, emotional condition, or future plans may become relevant because they shed light on the person’s state of mind before death.
Again, the first question is not simply whether the statement was made outside the courtroom. The first question is why the statement is being offered.
Legally Operative Words
Some statements matter simply because the words were spoken.
These statements are sometimes described as verbal acts or legally operative words. The statement itself forms part of an event having legal significance.
Examples include:
- Accepting or rejecting a settlement offer.
- Giving or withdrawing consent.
- Making or modifying a contractual promise.
- Giving instructions to an employee.
- Warning someone about a hazard.
- Providing notice of a dangerous condition.
Suppose a tenant repeatedly tells an apartment manager:
“The handrail is loose.”
If the issue is whether the property owner had notice of the reported condition, the significance of the statement lies in the fact that the complaint was made.
Whether the handrail was actually loose remains a separate factual question. But the communication itself may be relevant to establish notice.
Similarly, instructions from a supervisor may be relevant because they establish authority, expectations, control, or the scope of an employee’s responsibilities. The legal importance may arise from the fact that the instruction was given, not from the truth of every factual assertion contained within it.
Why This Matters in Injury Litigation
Conversations lie at the center of nearly every injury case.
Patients describe symptoms. Doctors discuss treatment options. Employees report hazards. Drivers receive dispatch instructions. Family members notify nursing home staff of changes in a resident’s condition. Property owners receive complaints about unsafe premises.
The instinctive response is often to ask whether one of these statements fits within a recognized hearsay exception.
Frequently, however, that analysis begins one step too late.
The first question should be:
For what purpose is this evidence being offered?
Only after answering that question can a court determine whether the hearsay rule applies at all.
Even then, identifying a legitimate non-hearsay purpose does not necessarily end the analysis. The court may still consider whether the statement’s exact wording creates an undue risk that the jury will use it for an improper purpose.
That is why careful preparation and precise questioning matter.
Final Thoughts
One of the reasons I enjoy trying cases is that they continually demonstrate that evidence law is rarely as straightforward in the courtroom as it appears in a casebook.
Sometimes the most instructive moments come from arguments that do not go your way.
The hearsay issue described above reinforced two questions I now consciously consider whenever an objection is raised:
Am I offering this statement for its truth, or for another purpose?
Does the jury need to hear the exact words, or can the point be established more narrowly?
Those questions can affect not only whether the evidence is admitted, but also how the testimony should be presented in the first place.
This article is part of our Trial & Evidence Series, where we discuss evidentiary issues encountered while litigating catastrophic injury, wrongful death, trucking, nursing home negligence, medical malpractice, premises liability, and other complex civil cases.