Predict whether an invoice ledger and a bystander's statement will be admitted. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.
The assignment
To: Associate. From: Colin Marsh, Partner. Re: Alder Supply v. Kwan. We represent the plaintiff, Alder Supply, which sues Kwan Builders for $46,000 for materials. Please write an objective memorandum predicting whether the court will admit (1) Alder's ledger of the deliveries and (2) a warehouse worker's statement to a driver, recorded in the ledger notes, that 'the customer's foreman signed for the load.' Use only the Library.
File
Facts
Alder Supply keeps a computer ledger. Dispatcher Rosa Lindqvist enters each delivery when the truck leaves, from the driver's radio report, and the entries are printed monthly. Alder has done this for ten years as a regular practice. The ledger shows nine deliveries to Kwan's site between May 3 and June 1, totaling $46,000. A note for the May 17 delivery reads: 'Driver Sam Ortiz says warehouse worker Ed Pruitt told him the foreman signed for the load.' Mr. Pruitt is now out of the country and cannot be reached. Mr. Ortiz still works for Alder. Ms. Lindqvist will testify at trial.
Alder's proposed foundation
Ms. Lindqvist will testify about how the ledger is kept but she does not personally see the deliveries. Mr. Ortiz will testify that he delivered the loads and made radio reports.
Library
Evidence Code, section 803 (Franklin)
A record of an act or event is not excluded as hearsay if (a) it was made at or near the time by, or from information transmitted by, a person with knowledge; (b) it was kept in the course of a regularly conducted activity; (c) making the record was a regular practice of that activity; (d) the foundation is shown by the testimony of the custodian or another qualified witness; and (e) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.
Evidence Code, section 805 (Franklin)
Hearsay within hearsay is not excluded if each part of the combined statements conforms with an exception to the rule.
A lumber seller offered its delivery logs. Held: admitted through an office manager who knew how the logs were made, though she did not see the deliveries. A custodian need not have personal knowledge of each entry. The logs were made from drivers' reports, which are information transmitted by a person with knowledge. But an outsider's statement recorded in a log is a separate layer. Where the outsider was not part of the business and had no duty to report, the statement is admissible only if it fits its own exception.
What graders look for in this task
Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.
States the section 803 elements and applies them to the ledger
Finds the entries made at or near the time from Mr. Ortiz's report, a person with knowledge
Finds the ledger kept in a regularly conducted activity as a regular practice
Applies Rowe to hold that Ms. Lindqvist may lay the foundation without personal knowledge
Concludes the ledger will likely be admitted
Identifies the note about Mr. Pruitt as hearsay within hearsay under section 805
Finds Mr. Pruitt was an outsider with no duty to Alder and the statement has no separate exception
Suggests using Mr. Ortiz or other proof of signature and states a prediction with the uncertainty