Oldie, but not a goodie.

Among other (unsuccessful) challenges to the exclusion of summary judgment evidence, the appellant in Warren v. Fannie Mae invoked Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285 (1892), the case that led to the hearsay exception in Fed. R. Evid. 803(3) for “then-existing mental, emotional, or physical condition.” (The opinion was written by Justice Horace Gray, right). The citation did not succeed, however, as the Fifth Circuit observed: “Hillmon looked at a declarant’s words as evidence they later followed through with a plan. Warren is arguing that her post-conduct statements of intention imply that she actually told Peters about Finch. Therefore, Hillmon is inapposite.” No. 17-10567 (May 3, 2018, unpublished).