Also known as:predecessors in interest · predecessor-in-interest · prior interest holder
Written by attorneys · grounded in primary & secondary sources — see below
A prior party in a civil action who had an opportunity and similar motive to develop testimony by direct, cross, or redirect examination at an earlier proceeding. The concept permits admission of the unavailable declarant's former testimony against the current party under the hearsay exception for former testimony.
Sources & Authorities
How it applies
Common Examples
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Prior Deposition in Subrogation Suit
Midnight Surety sued Frontier Claims for bad-faith denial of coverage after a warehouse fire. Frontier Claims had deposed its adjuster Mary in a related subrogation action against a suspected arsonist. Mary died before the bad-faith trial. Midnight Surety offered the deposition transcript against Frontier Claims. Because Frontier Claims was the same party that had examined Mary on the fire and policy in the earlier suit, the court treated Frontier Claims as having had the required opportunity.
Asbestos Litigation Successor
Workers sued Johns-Manville for asbestos injuries. Earlier testimony from a medical expert had been given in a prior suit brought by other plaintiffs against a corporate predecessor of Johns-Manville. The Sixth Circuit held that the predecessor had possessed a similar motive to cross-examine the expert on causation. The current defendants therefore stood in the position of a successor bound by that prior examination.
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Statutes
Federal Rules
Uniform Acts
Model Codes
Casebooks
Hornbooks
Course Outlines
Study Supplements
CLAY v. JOHNS-MANVILLE SALES CORP.722 F.2d 1289 (6th Cir. 1984)
Common questions
Frequently Asked
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Does the predecessor-in-interest requirement apply in criminal cases?+
No. Rule 804(b)(1)(B) limits the predecessor-in-interest language to civil cases. In a criminal prosecution the party against whom the former testimony is offered must personally have had the opportunity and similar motive to develop the testimony.
Supporting sources
Must the predecessor be in strict privity with the current party?+
Courts have rejected a narrow privity requirement. The legislative history shows that a shared community of interest and similar motive to examine the witness is sufficient, even without formal privity of estate or contract.
What happens when the prior and current proceedings involve different legal theories?+
The motives are not similar if the prior examination addressed a different objective. When the earlier proceeding focused on union issues and the current suit concerns reputational harm, the incentive to probe the testimony is not comparable and the exception fails.
Can a regulatory investigation supply the required predecessor examination?+
Yes, provided the agency or party had both an opportunity to question the witness and a motive comparable to the motive it would have in the later civil action. Overlap on the same factual issues, such as vehicle safety data, can satisfy the similar-motive element.
580 F.2d 1179 (3d Cir. 1978)Evidence
…was sufficient to satisfy the requirement of Rule 804. D. We turn now to the more difficult question: did Alvarez or a “predecessor in interest” have the “opportunity and similar motive to develop the testimony by direct, cross or redirect examination” as required by Rule 804(b)(1)? In rejecting the proffered evidence, the district…
EvidenceExceptions to the rule against hearsay · Hearsay exceptions—when the declarant is unavailable as a witnessNEXTGENFoundational