Phillip F. Winskunas v. James G. Birnbaum & Wisconsin Lawyers Mut. Ins. Co., 23 F.3d 1264 (7th Cir. 1994). · Go Syfert
Phillip F. Winskunas v. James G. Birnbaum & Wisconsin Lawyers Mut. Ins. Co., 23 F.3d 1264 (7th Cir. 1994). Cases Citing This Book View Copy Cite
“even if was identified, that someone's out of court declaration . . . is pure hearsay, admissible under none of the myriad exceptions to the hearsay rule and therefore incapable of creating a genuine issue of material fact”
139 citation events (79 in the last 25 years) across 22 distinct courts.
Strongest positive: Socha v. City of Joliet (ilnd, 2023-08-18)
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examined Cited as authority (verbatim quote) Socha v. City of Joliet
N.D. Ill. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
even if was identified, that someone's out of court declaration . . . is pure hearsay, admissible under none of the myriad exceptions to the hearsay rule and therefore incapable of creating a genuine issue of material fact
discussed Cited as authority (rule) Mayberry v. Hall
N.D. Ind. · 2025 · confidence medium
Evid. 802 (rule against hearsay); see also Gunville v. Walker, 583 F.3d 979, 985-86 (7th Cir. 2009) (declining to consider hearsay at the summary judgment stage); Logan v. Caterpillar, Inc., 246 F.3d 912, 925 (7th Cir. 2001) (“Logan's claim that the State’s Attorney told him that she was dismissing the charges because she was concerned that she would not be able to obtain a conviction is hearsay, and it is thus not enough to preclude summary judgment on this issue.” (citation omitted)); Winskunas v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1994) (“Even if he was identified, that someone�…
discussed Cited as authority (rule) Cover, Jr. v. OSF Healthcare Systems (2×) also: Cited "see"
N.D. Ill. · 2023 · confidence medium
Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994).
discussed Cited as authority (rule) Paul Thom v. Gary S Palmer
Mich. Ct. App. · 2022 · confidence medium
As explained in Maiden v Rozwood, 461 Mich 109 , 124 n 6; 597 NW2d 817 (1999), quoting Winskunas v Birnbaum, 23 F3d 1264, 1267-1268 (CA 7, 1994) (cleaned up): The evidence need not be in admissible form; affidavits are ordinarily not admissible evidence at trial.
discussed Cited as authority (rule) Schmelzer v. Animal Wellness Center of Monee, LLC
N.D. Ill. · 2022 · confidence medium
Next, Defendants argue that Exhibits G, H, and I (declarations of Mandy Holt, Melinda White, and Jessica McCaslin, respectively) are hearsay statements “created by Schmelzer’s counsel to attempt to create a question of fact and should be stricken or provided zero weight.” Reply at 1 (citing Winskunas v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1994)).
discussed Cited as authority (rule) Schmelzer v. Animal Wellness Center of Monee, LLC
N.D. Ill. · 2021 · confidence medium
Next, Defendants argue that Exhibits G, H, and I (declarations of Mandy Holt, Melinda White, and Jessica McCaslin, respectively) are hearsay statements “created by Schmelzer’s counsel to attempt to create a question of fact and should be stricken or provided zero weight.” Reply at 1 (citing Winskunas v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1994)).
cited Cited as authority (rule) Metris-Shamoon v. City of Detroit
E.D. Mich. · 2021 · confidence medium
Bd. of Educ., 106 F.3d 135 , 145 (6th Cir. 1997) (citing Celotex Corp., 477 U.S. at 324 ; Winskunas v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1994)).
cited Cited as authority (rule) Bradford v. Wexford Health Sources, Inc.
N.D. Ill. · 2020 · confidence medium
Winskunas v. Burnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Fed.
discussed Cited as authority (rule) In the Matter of the Estate of Thomas James Klein
Iowa Ct. App. · 2018 · confidence medium
Exch., 432 F.3d 1114, 1122 (10th Cir. 2005) (“At the summary judgment stage, the parties need not submit evidence in a form admissible at trial; however, the content or substance of the evidence must be admissible.”); Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994) (“The evidence need not be in admissible form; affidavits are ordinarily not admissible evidence at a trial.
cited Cited as authority (rule) Bowens v. Zhang
N.D. Ill. · 2018 · confidence medium
Ill. 2001) (quoting Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994)).
discussed Cited as authority (rule) Cartwright v. Silver Cross Hospital
N.D. Ill. · 2018 · confidence medium
Thus, although Plaintiff refers to unnamed documents that he “will provide to the Court,” see [113] at 4, such references do not constitute evidence and cannot affect this Court’s ruling at summary judgment, see, e.g., Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994) (to ward off summary judgment, the plaintiff must “present evidence of evidentiary quality”) (citing Fed R.
cited Cited as authority (rule) Isbell v. Baxter Healthcare, Corp.
N.D. Ill. · 2017 · confidence medium
Ill. 2001) (quoting Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994)).
cited Cited as authority (rule) Lora Wheatley v. Factory Card and Party Outlet
7th Cir. · 2016 · confidence medium
Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994).
discussed Cited as authority (rule) Hartford Fire Insurance v. Taylor (2×) also: Cited "see"
N.D. Ill. · 2012 · confidence medium
The evidence need not be in admissible form ... [b]ut it must be admissible in content.” Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994) (internal citations omitted).
cited Cited as authority (rule) Cotton v. Auto-Owners Insurance Co.
Ind. Ct. App. · 2010 · confidence medium
Id. at 1240-41 (emphases and omissions in original) (citing Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994)).
discussed Cited as authority (rule) Terry Tindle v. Pulte Home Corp.
7th Cir. · 2010 · confidence medium
Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262 , 265 n. 2 (7th Cir.1997), and Tindle must come forward with admissible evidence that demonstrates there are genuine issues of material fact to survive Pulte’s summary judgment motion, Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009); Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).
cited Cited as authority (rule) LUPESCU v. Napolitano
N.D. Ill. · 2010 · confidence medium
Winskunas v. Bimbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).
cited Cited as authority (rule) Dextrom v. Wexford County
Mich. Ct. App. · 2010 · confidence medium
Winskunas v Birnbaum, 23 F3d 1264, 1267-1268 (CA 7, 1994) (citations omitted; original emphasis in Winskunas omitted).
discussed Cited as authority (rule) Patterson v. Indianapolis Metropolitan Police Officer Burns (2×) also: Cited "see"
S.D. Ind. · 2009 · confidence medium
R.Evid. 801(c) (defining hearsay); Winskunas, 23 F.3d at 1268 (affirming summary judgment where plaintiff relied on inadmissible hearsay to oppose it).
discussed Cited as authority (rule) Barnard Manufacturing Co. v. Gates Performance Engineering, Inc.
Mich. Ct. App. · 2009 · confidence medium
Id. at 124 n 6. “ ‘But it must be admissible in content____Occasional statements in cases that the party opposing summary judgment must present admissible evidence ... should be understood in this light, as referring to the content or substance, rather than the form, of the submission.’ ” Id., quoting Winskunas v Birnbaum, 23 F3d 1264, 1267-1268 (CA 7, 1994).
discussed Cited as authority (rule) 1300 Lafayette East Cooperative, Inc v. Savoy
Mich. Ct. App. · 2009 · confidence medium
Occasional statements in cases that the party opposing summary disposition must present admissible evidence ... should be understood in this light, as referring to the content or substance, rather than the form, of the submission.” [ Maiden, supra at 124 n 6 (emphasis added), quoting Winskunas v Birnbaum, 23 F3d 1264, 1267-1268 (CA 7, 1994).] Thus, documentary evidence that would be “plausibly admissible” at trial if a proper foundation is laid is sufficient to survive a C(10) motion.
discussed Cited as authority (rule) Batchelor v. MERCK & CO., INC.
N.D. Ind. · 2008 · confidence medium
See Matthews 534 F.3d at 557 (“Offering a statement by a third party ... to prove a fact contained in that statement is inadmissible hearsay.”); Winskunas v. Bimbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994) (affidavit containing statement by unnamed third party is inadmissible hearsay).
discussed Cited as authority (rule) Boim v. Holy Land Foundation for Relief & Development (2×)
7th Cir. · 2008 · confidence medium
E.g., Rozenfeld v. Medical Protective Co., 73 F.3d 154, 155-56 (7th Cir.1996); Winskunas v. Bimbaum, 23 F.3d 1264, 1267 (7th Cir.1994).
cited Cited as authority (rule) Boim, Stanley v. Holy Land Foundation
7th Cir. · 2008 · confidence medium
E.g., Rozenfeld v. Medical Protective Co., 73 F.3d 154, 155-56 (7th Cir. 1996); Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994).
discussed Cited as authority (rule) Rosaura Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC
7th Cir. · 2006 · confidence medium
Williams v. Seniff, 342 *665 F.3d 774, 785 (7th Cir.2003); see also Payne, 337 F.3d at 771-73 (evidence presented in a “self-serving” affidavit or deposition is enough to thwart a summary judgment motion provided it meets the usual requirements for evidence at summary judgment stage); Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994) (plaintiff can present deposition testimony demonstrating the existence of a genuine issue of material fact to ward off the grant of summary judgment).
discussed Cited as authority (rule) Paz, Rosaura v. Wauconda Healthcare
7th Cir. · 2006 · confidence medium
Williams v. Seniff, 342 F.3d 774 , 785 (7th Cir. 2003); see also Payne, 337 F.3d at 771-73 (evidence presented in a “self-serving” affidavit or deposition is enough to thwart a summary judgment motion provided it meets the usual requirements for evidence at summary judgment stage); Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994) (plaintiff can present deposition testimony demonstrating the existence of a genuine issue of material fact to ward off the grant of summary judgment).
cited Cited as authority (rule) Brown v. Chicago Transit Authority Retirement Plan
7th Cir. · 2006 · confidence medium
To defeat a motion for summary judgment, however, the nonmoving party must produce “evidence of evidentiary quality.” Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).
cited Cited as authority (rule) Collins v. BUECHEL STONE CORP.
E.D. Wis. · 2005 · confidence medium
Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994) (internal. citations omitted).
discussed Cited as authority (rule) United States v. Antoine Johnson
7th Cir. · 2004 · confidence medium
A fundamental principle of tort law is that there is no tort without an injury, e.g., Rozenfeld v. Medical Protective Co., 73 F.3d 154, 156 (7th Cir.1996); Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir.1994), and so since neither fire was a sine qua non of the plaintiffs injury, it could be argued that neither fire maker had committed a tort.
discussed Cited as authority (rule) United States v. Johnson, Antoine
7th Cir. · 2004 · confidence medium
A fundamental principle of tort law is that there is no tort without an injury, e.g., Rozenfeld v. Medical Protec- tive Co., 73 F.3d 154, 156 (7th Cir. 1996); Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994), and so since neither fire was a sine qua non of the plaintiff’s injury, it could be argued that neither fire maker had committed a tort.
discussed Cited as authority (rule) Bailey v. Skipperliner Industries, Inc.
N.D. Ind. · 2003 · confidence medium
Accordingly, supporting materials “must be of evidentiary quality — either admissible documents or attested testimony, such as that found in depositions or in affidavits” Id. (citing Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir.1994)).
examined Cited as authority (rule) Reeder v. Harper (4×)
Ind. · 2003 · confidence medium
Id. at 1267-68 (citation omitted) (italics in original); see also McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) (holding that evidence in an inadmissible form may be considered at the summary judgment stage as long as the evidence is submitted in an admissible form at trial), affd sub. nom, McMillian v. Monroe County, Ala., 520 U.S. 781 , 117 S.Ct. 1734 , 188 L.Ed.2d 1 (1997); Treff v. Galetka, 74 F.3d 191, 195 (10th Cir.1996) ("The nonmoving party is not required to produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be ad…
cited Cited as authority (rule) Stinnett, Kerry v. Iron Works Gym
7th Cir. · 2002 · confidence medium
Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994).
cited Cited as authority (rule) Kerry Stinnett v. Iron Works Gym/executive Health Spa, Incorporated
7th Cir. · 2002 · confidence medium
Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).
cited Cited as authority (rule) Sillins v. Sillins (In Re Sillins)
Bankr. N.D. Ill. · 2001 · confidence medium
Russell v. Acme-Evans Company, 51 F.3d 64, 67 (7th Cir.1995)(cit *898 ing Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994)).
cited Cited as authority (rule) Erickson v. Baxter Healthcare, Inc.
N.D. Ill. · 2001 · confidence medium
Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).
discussed Cited as authority (rule) Fredric Karl Saecker v. William H. Thorie and Doar, Drill & Skow, S.C.
7th Cir. · 2000 · confidence medium
See Borello v. U.S. Oil Co., 130 Wis.2d 397 , 388 N.W.2d 140, 146 (1986); Smith v. Herding, Myse, Swain & Dyer, Ltd., 211 Wis.2d 787 , 565 N.W.2d 809, 811 (1997); Winskunas v. Birnbaum, 23 F.3d 1264, 1266 (7th Cir.1994).
discussed Cited as authority (rule) Saecker, Frederic K. v. Thorie, William H.
7th Cir. · 2000 · confidence medium
See Borello v. U.S. Oil Co., 388 N.W.2d 140, 146 (Wis. 1986); Smith v. Herrling, Myse, Swain & Dyer, Ltd., 565 N.W.2d 809, 811 (Wis. App. 1997); Wiskunas v. Birnbaum, 23 F.3d 1264, 1266 (7th Cir. 1994).
discussed Cited as authority (rule) Edwards & Associates, Inc. v. Black & Veatch, L.L.P.
D. Kan. · 2000 · confidence medium
Winskunas v. Bimbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994).... "[Gjeneralized, unsubstantiated, non-personal affidavits are insufficient, to successfully oppose a motion for summary judgment.” Stevens v. Barnard, 512 F.2d 876, 879 (10th Cir. 1975).
discussed Cited as authority (rule) Rainforest Café, Inc. v. Amazon, Inc.
D. Minnesota · 1999 · confidence medium
While the nonmoving party at the summary judgment stage “need not produce evidence ‘in a form that would be admissible at trial,’ [citation omitted] ... the content or substance of the evidence must be admissible.” Thomas v. International Business Machines, 48 F.3d 478, 485 (10th Cir.1995) (citing Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994)).
discussed Cited as authority (rule) Maiden v. Rozwood (2×)
Mich. · 1999 · confidence medium
Occasional statements in cases that the party opposing summary judgment must present admissible evidence ... should be understood in this light, as referring to the content or substance, rather than the form, of the submission." Winskunas v. Birnbaum, 23 F.3d 1264, 1267-1268 (C.A.7, 1994) (internal citations omitted). [7] The supplemental police report indicates that" Mr. Myles states that Paul Troy was lying across Leith's back and Henry Rozwood was lying across Leith's upper back and shoulder area." [8] The dissent essentially concedes that Myles' statement in the police report is inadmissib…
discussed Cited as authority (rule) Bickerstaff v. Nordstrom, Inc.
N.D. Ill. · 1999 · confidence medium
However, to avoid summary judgment, the plaintiff must present “evidence of evidentiary quality — either admissible documents or attested testimony, such as that found in depositions or in affidavits— demonstrating the existence of a genuine *796 issue of material fact.” Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994).
discussed Cited as authority (rule) Terrell Walters and Joseph Ganci, on Behalf of Themselves and All Others Similarly Situated v. James Edgar
7th Cir. · 1999 · confidence medium
Trials within trials are sometimes unavoidable, as in cases of legal malpractice, e.g., Mattson v. Schultz, 145 F.3d 937, 938 (7th Cir.1998); Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994), but they are to be avoided where possible.
cited Cited as authority (rule) Cox v. National Football League
N.D. Ill. · 1998 · confidence medium
Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir.1994) (citations omitted).
discussed Cited as authority (rule) Bernhardt v. Interbank of New York
E.D.N.Y · 1998 · confidence medium
In Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir.1994), the Seventh Circuit explained that the evidence presented by a non-movant need not be in admissible form, but the substance of the evidence must be admissible.
cited Cited as authority (rule) Stegall v. Great American Insurance
D. Kan. · 1998 · confidence medium
Celotex Corp., 477 U.S. at 324 ; Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).
cited Cited as authority (rule) Hysten v. Jefferson County Board of County Commissioners
D. Kan. · 1998 · confidence medium
Celotex Corp., 477 U.S. at 324 ; Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994).
discussed Cited as authority (rule) Eisenstadt v. Centel Corporation
7th Cir. · 1997 · confidence medium
P. 56(c), (e); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir.1994); Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994), provided, of course, that the affiant's or deponent's testimony would be admissible if he were testifying live.
discussed Cited as authority (rule) Eisenstadt v. Centel Corp.
7th Cir. · 1997 · confidence medium
P. 56(c), (e); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir.1994); Winskunas v. Bimbaum, 23 F.3d 1264, 1267-68 (7th Cir.1994), provided, of course, that the affiant’s or deponent’s testimony would be admissible if he were testifying live.
discussed Cited as authority (rule) Mazur v. United States Immigration & Naturalization Service
N.D. Ill. · 1997 · confidence medium
After she then retained counsel (Complaint ¶ 12), on September 8,1993 her lawyer wrote the INS official involved confirming that the official had said that Mazur’s case had “fallen between the cracks.” At the very outside, then, any tort claim by Mazur had then accrued (United States v. Kubrick, 444 U.S. 111, 120-22 , 100 S.Ct. 352, 358-60 , 62 L.Ed.2d 259 (1979)), so that the two-year -time clock established by 28 U.S.C. § 2401 (b) (“Section 2401(b)”) for filing an administrative claim began to tick not later than that date (cf. Winskunas v. Birnbaum, 23 F.3d 1264, 1266-67 (7th Ci…
Phillip F. WINSKUNAS, Plaintiff-Appellant,
v.
James G. BIRNBAUM and Wisconsin Lawyers Mutual Insurance Company, Defendants-Appellees
93-2641.
Court of Appeals for the Seventh Circuit.
May 12, 1994.
23 F.3d 1264
Michael R. Wherry, Perry H. Friesler (argued), Davis & Kuelthau, Milwaukee, WI, for plaintiff-appellant., Ward I. Richter, Stephen Ehlke (argued), Bell, Metzner, Gierhart & Moore, Madison, WI, for James G. Birnbaum, Wisconsin Lawyers Mut. Ins. Co.
Posner, Rovner, Gilbert.
Cited by 112 opinions  |  Published
POSNER, Chief Judge.

The plaintiff in a diversity suit for legal malpractice appeals from the dismissal of his suit on the defendants’ motion for summary judgment. The essential facts, construed as favorably to the plaintiff as the record permits, are as follows. In 1982 the executive board of a hospital recommended that Dr. Winskunas’s surgical privileges be revoked. He requested review by the hospital’s peer review committee and retained lawyer Birn-baum to represent him before the committee. He and Birnbaum made elaborate preparations for the hearing but when the time came the lawyer unaccountably failed to raise the points they had discussed, to call the right[*1266] witnesses, or, in short, to represent Winsku-nas competently. Winskunas was concerned about Birnbaum’s performance but the lawyer told him not to worry; things were going well. Nevertheless the committee approved the board’s recommendation to revoke Win-skunas’s privileges, as did a further review committee before which Birnbaum’s performance was again lackluster at best. At that hearing Winskunas wrote himself a note saying, “Did Jim [Birnbaum] drop the ball again? I hope not.” Winskunas’s surgical privileges were revoked effective May 14, 1984. In July, after the hospital had notified the state medical examining board of its decision, Winskunas hired different counsel to try to save his medical license but retained Birnbaum to bring a suit in a Wisconsin state court to set aside the hospital’s decision revoking his surgical privileges. Again (according to Winskunas, whose version of the facts we must accept for purposes of this appeal) Birnbaum represented Winskunas incompetently, and on November 10, 1987, the court rendered a decision dismissing the suit. Winskunas instructed Birnbaum to appeal the decision, but he failed to do so. Winsku-nas read the decision, in which the judge noted that one of the grounds on which he had rejected an affidavit submitted by Birn-baum was that “the unsigned affidavit was prepared pursuant to an adjournment procured, at least in part, by [Birnbaum’s] chicanery.” And about a year later Winskunas read in a newspaper article that in another case Birnbaum had been hit with a $1000 sanction for delay in discovery. At last the scales fell from Winskunas’s eyes — yet he did not file this suit until 1992.

The district judge held that the suit, insofar as it challenges Birnbaum’s representation of Winskunas before the peer review committee, is barred by the six-year statute of limitations that is applicable to malpractice actions in Wisconsin. Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275, 277-79 (App.1989). Insofar as the suit challenges Birnbaum’s conduct of the Wisconsin state court action and his failure to appeal from the decision in that suit, the defendants conceded that the suit was not time-barred but they argued and the district court agreed that this part of the suit was barred by the plaintiffs failure to present evidence that he could have won the state court action if competently represented.

The general rule, in Wisconsin (Hansen v. AH. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983); Stroh Die Casting Co. v. Monsanto Co., 177 Wis.2d 91, 502 N.W.2d 132, 135-37 (App.1993)) as elsewhere (e.g., Singletary v. Continental Illinois National Bank & Trust Co., 9 F.3d 1236, 1240 (7th Cir.1993)), is that the statute of limitations begins to run in a tort case as soon as the victim of the tort knows that he has been injured (and by whom, Spitler v. Dean, 148 Wis.2d 630, 436 N.W.2d 308, 310-11 (1989)), not later when he finds out that he has a legal claim arising out of the injury. United States v. Kubrick, 444 U.S. 111, 122-23, 100 S.Ct. 352, 359-60, 62 L.Ed.2d 259 (1979); Kempfer v. Evers, 133 Wis.2d 415, 395 N.W.2d 812 (App.1986). The very purpose of giving a plaintiff time, here a generous six years, in which to sue is to enable him to find out whether he has a claim against the person who injured him.

The application of this rule is difficult in malpractice cases because the injury and the claim tend to merge. If a person goes to a doctor with a complaint and is treated and nevertheless dies, it may be entirely unclear whether it was the doctor who killed him or the disease that brought him to the doctor which killed him. And in this legal malpractice ease it may have been unclear, initially at any rate, whether the hospital, or lawyer Birnbaum, or both, or for that matter Winskunas himself — or all three — had, or more precisely ought to be deemed to have, caused the revocation of hospital privileges and the resulting loss of income and other harm. Understanding such a case requires recognition that the relevant knowledge is not only knowledge that one has been injured but also knowledge that one may have been injured by someone who conceivably might be legally liable. Hennekens v. Hoerl, 160 Wis.2d 144, 465 N.W.2d 812, 819 (1991). Without knowing that, the plaintiff would have no reason to begin to investigate the possibility that his legal rights had been infringed. If one’s house burns down in unsuspicious cireum-[*1267] stances — say in the midst of an electrical storm — and years later one discovers that in fact it had been torched by a business rival, one ought not be time-barred from suing him. That would be functionally the same case as where one knows that one has been tortiously injured but not by whom. Spitler v. Dean, supra.

There are two doctrinal paths to this conclusion. The first is that the cause of action does not accrue, that is, the statute of limitations does not begin to run, until the plaintiff learns not only that he has been injured but also that the injury may have had a culpable source. The second' is that the statute of limitations begins to run when the plaintiff learns that he has been injured, but its running is arrested for as long as it would take him with reasonable diligence to discover that he had been injured by someone who might be legally liable for the injury, and to prepare and file a suit against that someone. The second approach goes by the name “equitable tolling” and differs from the first or accrual approach only in that the plaintiff must act with reasonable diligence throughout, rather than having the full statutory period after discovery of the facts that he needs in order to sue within which to file the suit. Singletary v. Continental Illinois National Bank & Trust Co., supra, 9 F.3d at 1243.

The Wisconsin cases do not distinguish between the two approaches; indeed it is not clear that the doctrine of equitable tolling exists in Wisconsin. Esser Distributing Co. v. Steidl, 145 Wis.2d 160, 426 N.W.2d 62, 67 (App.1988), aff'd, 149 Wis.2d 64, 437 N.W.2d 884 (1989). In some cases the distinction could be important, as we have just indicated, but not in this one. Under either approach a plaintiff cannot sit back when he learns that he has been injured. He must make reasonable efforts to find out whether the injury came from a source that he can sue. Winskunas was injured in May 1984 when his surgical privileges were revoked. He could not be sure that the cause of the injury, or at least a cause sufficient to support a lawsuit, was negligence on the part of his lawyer. But he should have had a lively suspicion that such negligence had played a role. He did have a lively suspicion; he acknowledges, as he must in light of the “Jim dropped the ball again” note and other evidence, that he had what he redundantly terms a “subjective hunch” that Birnbaum had blown his case. A reasonable person in Winskunas’s position would not have needed eight years to decide that Birnbaum had committed malpractice and to file this suit so charging. Whatever the precise level of suspicion necessary to impose a duty of inquiry under either formulation discussed above, Winskunas had it in 1984; and so clear is this that the district judge was entitled so to find on summary judgment.

We turn to the later acts of alleged malpractice — Birnbaum’s conduct of the state court suit challenging the hospital’s revocation of Winskunas’s surgical privileges and his failure to appeal the defeat in that suit. A suit for legal malpractice based on the handling of a trial or other litigation entails a suit within a suit in the following sense: the plaintiff cannot recover for legal malpractice if, even had he been competently represented, he would have lost the suit that his lawyer hobbled. Glamann v. St. Paul Fire & Marine Ins. Co., 144 Wis.2d 865, 424 N.W.2d 924, 926 (1988). For then he has not been injured by the bobble, and injury is an essential element of every tort, including the tort of legal malpractice. Lewandowski v. Continental Casualty. Co., 88 Wis.2d 271, 276 N.W.2d 284 (1979); Estate of Campbell v. Chaney, 169 Wis.2d 399, 485 N.W.2d 421, 423 (App.1992). When as in the present case a defendant moves for summary judgment on the ground that the plaintiff lacks evidence of an essential element of his claim, the plaintiff is required by Fed.R.Civ.P. 56, if he wants to ward off the grant of the motion, to present evidence of evidentiary quality — either admissible documents or attested testimony, such as that found in depositions or in affidavits — demonstrating the existence of a genuine issue of material fact. Lujan v. Defenders of Wildlife, — U.S.-, 112 S.Ct. 2130, 2137, 119 L.Ed.2d 351 (1992); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Lovejoy Electronics, Inc. v. O’Berto, 873 F.2d 1001, 1005 (7th Cir.1989). The evidence need not be in[*1268] admissible form; affidavits axe ordinarily not admissible evidence at a trial. But it must be admissible in content, in the sense that a change in form but not in content, for example a substitution of oral testimony for a summary of that testimony in an affidavit, would make the evidence admissible at trial. Celotex Corp. v. Catrett, 477 U.S. at 324, 106 S.Ct. at 2553; United States v. 1 Parcel of Real Property, 904 F.2d 487, 491 (9th Cir.1990). Occasional statements in cases that the party opposing summary judgment must present admissible evidence, e.g., Sokaogon Chippewa Community v. Exxon Corp., 2 F.3d 219, 224-25 (7th Cir.1993), should be understood in this light, as referring to the content or substance, rather than the form, of the submission.

Birnbaum invoked this rule by arguing in his motion for summary judgment that Winskunas could not win the suit within a suit — could not, in other words, show injury from the alleged malpractice — because he had no evidence with which to overcome the presumption created by Wisconsin law that the members of a peer review committee acted in good faith, Wis.St.Ann. § 146.37, in which event their decision cannot be attacked in court. Limjoco v. Schenck, 169 Wis.2d 703, 486 N.W.2d 567 (App.1992); Harris v. Bellin Memorial Hospital, 13 F.3d 1082, 1086-90 (7th Cir.1993). Winskunas acknowledges that to prevail in his legal malpractice suit he would have to prove that the peer review committee which advised revoking his surgical privileges acted in bad faith. Yet he presented no evidence in opposition to the motion for summary judgment other than his own affidavit in which he states that he had heard, from someone he does not name, about ex parte communications between the hospital administration and the peer review committee. Even if he was identified, that someone’s out of court declaration to Winskunas is pure hearsay, admissible under none of the myriad exceptions to the hearsay rule and therefore incapable of creating a genuine issue of material fact concerning the peer review committee’s bad faith. Fed. R.Civ.P. 56; Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 192 (5th Cir.1990); cf. Sokaogon Chippewa Community v. Exxon Corp., supra, 2 F.3d at 224. If there is thus no evidence that Winskunas could have won his state court suit, by the same token there is no evidence that he could have gotten the loss reversed by the appeal that Birnbaum failed to take. Of course the lack of evidence may be due to Birnbaum’s failure, itself possibly culpable, to have developed that evidence a decade ago in the proceedings before the hospital committees. But Winskunas’s effort to obtain redress for that failure is, as we have seen, time-barred. There is no escape from the conclusion that Winskunas has failed to establish an essential element of so much of his malpractice claim as is not time-barred. The district judge was therefore correct to dismiss the suit in its entirety.

AFFIRMED.