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Dunbar Transcript

Page history last edited by abogado 5 years, 4 months ago

Team Presentations - Law 16 - Spring 2015


Dunbar Transcript (Hearsay Exceptions)

look at Hearsay exceptions - FRE 803 and 804 - click here

Palmer v. Dunbar


Plaintiff Susan Palmer contends that defendant Brad Dunbar discriminated against her on the basis of her gender by firing her from her employment as an employee of a bookstore owned by Dunbar. Dunbar admits firing Palmer, but contends that it was for reasons of poor work performance (reporting to work late and alienating customers by complaining about the "trashy" materials the book store had begun carrying after Dunbar's purchase of the bookstore) and had nothing to do with Palmer's gender.



Evidence thus far introduced establishes that Dunbar bought the bookstore from its former owner, Justin Tyme, about 6 months before firing Palmer. At the time Dunbar bought the shop, it was managed by Martha Olsen. Olsen quit, however, about 2 months after the shop was sold. Below is a partial transcript of Olsen's testimony; she was called as a witness by Palmer.



Direct Examination of Martha Olsen by counsel for plaintiff
(the witness has thus far testified that she had been manager of the bookshop for about 12 years when Dunbar bought it, that Palmer had been employed there for 10 years, and that during most of this time the bookshop employed 6-7 salespeople.)



Q: Ms. Olsen, your testimony is that you were Ms. Palmer's supervisor during the period that both you and she were employed at the bookshop?



A: That's correct, yes.



1. Q: And prior to Mr. Dunbar purchasing the book store, how was her work performance as compared to that of the other employees?
Is it relevant that Palmer was a competent employee? Also what affect by comparing her with other employees? was does or doesn't that accomplish?



A: She was among the best, She kept up with many fields and often was able to help customers select books.



Q: Did Mr. Tyme ever say anything about Ms. Palmer's work performance?



2. A: Yes, on a number of occasions he said he thought that she was our most valuable employee.
Any exception to hearsay, or is this hearsay evidence? state of mind exception as non-hearsay? why or why not?



Q: Now, when Mr. Dunbar took over as the new owner on January 1, was he regularly in the store?



A: No, he'd come in about once a week. He was mostly involved with some other businesses.



3. Q: Do you remember a conversation about Ms. Palmer that Mr. Dunbar had with you on January 5, shortly afer he bought the shop?
is this an improperly leading question, or is it admissible? is this a legitimate question and inquiry of the witness?



A: I do.



Q: And what did Mr. Dunbar tell you about Ms. Palmer?



4. A: He said that Susan Palmer was a very attractive employee. He asked me if Ms. Palmer was married, and when I said that I thought she was divorced he said that he was going to try to find out more about her.



Q: How did you respond? Is the above in #4 admissible? under what exception, if any?



5. A: I said that the bookstore was always a place where we respected employees' privacy, that I felt that Ms. Palmer was very sensitive, and that I intended to do whatever I could to protect her privacy and her feelings.



Q: Shortly thereafter, did you have a conversation with Ms. Palmer?



A: Yes, I'd say a day or two later.



Q: And what did she tall you?



6. A: She said she was very upset, because Mr. Dunbar had asked her to have a drink after work.
statement that she was upset, is there a hearsay exception for that? what FRE rule?



Q: Did she say anthing else?



7. A: Yes. She said she was going to meet with Mr. Dunbar in the bookstore the next day, and tell him that she wanted nothing to do with him socially.
is this hearsay, see FRE 803(3) and explain if that applies here?



Q: What's the next thing that happened?



8: A: A few minutes later, I saw Ms. Palmer using the phone at the rear of the shop. She seemed to be on hold, so I asker her who she was talking to. She said she was talking with Mr.Dunbar, and that she was telling him that she wanted to have nothing to do with him. 
what exception to hearsay rule here? (psi?)



Q: How did that affect you?



9: A: I was glad she was telling him to stop his abusive conduct.
is state of mind of witness relevant here? why or why not?



Q: Ms. Olsen, I would like to call your attention to an episode in late January. Do you recall a customer making a statment to you about Ms. Palmer?



A: I do, but not too well to tell you the truth.



Q: Well, did you make a note of the comment?



10 A: I think I did, because I thought that Mr. Dunbar was probably going to cause problems in the future for Ms. Palmer.
why should counsel make a motion to strike the above statement, and from what word above and forward should it be striken from the record and why?



Q: Ms. Olsen, I had you plaintiff's Exhibit 3, which I have shown to counsel for Mr. Dunbar. Please look over Exhibit 3, and tell us what it is.



A: This is a note I made about what a customer told me about Susan Palmer. I put it in her personnel folder.



11. Q: You recognize your handwriting?



A: Yes, it's my handwriting.



Q: Do you recall when you made this note?



A: As best I can remember, the same day the customer made the remark to me, probably after work. No later than the next day, for sure.



Q: Was the customer's statement fresh in your mind when you wrote out this note?
is this a leading question, refer to FRE 104(a)?



Def. Attorney Objection: Your honor, Calls for a legal conclusion.



12. The Court, I agree. Counsel, rephrase the question.



Q: At the same time you wrote the note, were you able to remember clearly what the customer told you?



Def. Att: Same objection, Your Honor.
what ruling on the part of the judge and why?



13. The Court: No, I'll overrule the objection, the witness may anser.



A: Yes, I was.



Q: And what did you write down?



A: Just what the customer told me.



Q: Ms. Olsen, could you please read what is written on Exhibit 3?



A: All Right. It says, "January 23. A man named Sidney Winter told me that Susan Palmer had been extremely helpful to him. He said he had needed a book of off-color jokes for a fraternity party, and that Susan Palmer had found just the right one. He said she was very friendly and helpful." Then there is my signature, "Martha Olsen."



Def. Att. Objection. Your Honor, Inadmissible hearsay of Ms. Olsen.



14. The Court. I should admit the evidence as long as there is sufficient evidence from which the jury could reasonably conclude that the statement was made in the regular course of business.
is this a correct standard applied by the judge? isn't the judge to make a final determination of admissibility of evidence under an exception to the hearsay rule? explain?



15. The Court: overruled: the statement qualifies as the witness' recorded recollection.
is this a correct ruling by the Judge, why or why not? Have the requirements of FRE 803(5) been met?
16. The Court: I'd also admit it as a business record.
correct ruling, why or why not? has the foundation for the business record been laid, or established? is the customer under some duty to make accurate reports, why or why not?



Def. Att: Also Object that the testimony constitutes inadmissible hearsay of Sidney Winter.



17. The Court: I will overrule that objection.
correct ruling? is the customer's statment in the form of "operative conduct" - explain. 



Q: Plaintiff asks that Exhibit 3 be received in evidence, Your Honor.



18. The Court: What ruling?
should the Judge deny? why, can the statement be read into evidence? why? may the document be received into evidence? why or why not?



Q: Ms. Olsen, as manager of the bookstore, was it your duty to maintain the personnel files for all employees?



A: Yes.



Q: And if customers made remakrs to you about any employee, positive or negative, would you try to make a note of it in that employee's pesonnel file?



A: Yes, I'd usually just jot a note on a peice of paper and put in in the file.



Q: Were other employees asked to do likewise?



A: Yes.



Q: Have yor reviewed Ms. Palmer's personnel file for the period during which you were the store manager after Mr. Dunbar purchased the bookstore?



A: I have.



19. Q: And according to Ms. Palmer's personnel file, did customers make any negative reports about Ms. Palmer during that period of time?
is this a proper question, why or why not? is there "proper foundation" for this question, what does that mean?



A: No, they did not.



20. Q: Ms. Olsen, I'd like to turn your attention to another matter. Do you recall a meeting in early February with Susan Palmer in the storeroom in the back of the bookstore when Ms. Palmer was in tears?



A: Yes, very well.



Q: Can you remember when in early February this conversation took place?
is this a leading question? why or why not? canthe counsel call the witness attention to a specific event that the witness is to describe?



A: Probably around the 5th or 6th, sorry I can't be any more specific. It was in the late afternoon, I do remember.



Q: Could you please describe what happened?



Def. Att. objection, calls for a narrative response.



21. The Court: overruled, witness may answer.
is this within the discretion of the judge, why or why not?



A: Well, I remember I was discussing ordering a book for a customer with another employee. Ms. Palmer grabbed my arm and said she had to talk to me right then. I could see her eyes were red and she was shaking, so I walked her back to the storeroom where we could talk in private. She immediately burst into tears and said she didn't know what to do. She said that Mr. Dunbar had told her that he wanted her to attend an out-of-town book convention with him, and that it would be his chance to get to know her a lot better. She also said that for the past few weeks he'd been asking her out to drinks for dinner meetings and she didn't know how much longer she could handle it.



Def. Att. Objection to what Palmer told her, hearsay.



22. The Court: Overruled, it is non-heasay as it indicated to the witness why Ms. Palmer was upset.
correct ruling, why or why not? is it relevant whether Olsen understands why Palmer was upset? why or why not?



23. The Court: Even if the statement is admitted for its truth, it qualifies as an excited utterance.
correct ruling, why or why not? could you move to strike the "drinks and dinner meetings" statement, why or why not?



Q: Did you ever discuss this conversation with Mr. Dunbar?



A: I did say something to him a day or so later when he came to the store to discuss some new materials he wanted to stock.



Q: What did you say to him?



A: I asked whether he was going to attend the upcoming book convention.



Q: And how did Mr. Dunbar respond?



A: He said that he was going to attend, and that he hoped Ms. Palmer would go with him to learn the business. At the same time he mentioned Ms. Palmer learning the business, he winked at me.



Def. Attorney: Objection and move to strike the wink testimony, conclusion.



24. The Court: overruled.
proper ruling? why or why not?



Q: What did Mr. Dunbar mean by the wink?



Def. Attorney: Objection, improper opinion.



25. The Court: what ruling?
sustain the objection? why or why not? can the trier of fact (i.e. the jury) infer the purpose of Dunbar's winking? as well as the witness, why or why not?



26. Q: One final question before the recess, Ms. Olsen. Based on everything that went on, were you suprised to learn that Ms. Palmer had filed a sexualy harrassment suit?
relevant question? why or why not



A: Not at all.



The Court: We will take the luncheon recess at this time.

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