Admissibility of Interested Witness Evidence in Summary Judgment Proceedings

January 14, 2012

One of the most striking differences between summary judgment evidence and evidence at trial is in the use of interested witness testimony. While the evidence at most trials includes interested witness testimony – often riddled with contradictions and inconsistencies – the use of this type of evidence in the summary judgment context is quite restricted. 

Rule 166a(c) of the Texas Rules of Civil Procedure provides that interested witness testimony used to support a summary judgment must be: 

  1. uncontroverted, 
  2. clear, 
  3. positive and direct, 
  4. otherwise credible and free from contradictions and inconsistencies, and 
  5. capable of being readily controverted. 

Whether interested witness testimony must be excluded pursuant to Rule 166a(c) often depends upon the answers to two questions:

Whose evidence is it?

Which party is offering the evidence should always be the threshold inquiry because the rule is entirely one-sided in application. While the rule is quite clear that a summary judgment cannot be based on the testimony of an interested witness [unless it complies with 166a(c)], the 166a(c) restrictions do not apply to the use of interested witness testimony by a non-movant to overcome a summary judgment motion. In other words, the same type of interested witness testimony that may be objectionable as against a movant seeking summary judgment could actually be used to raise a fact issue on behalf of a non-movant seeking to defeat one.  Tabor v. Medical Center Bank, 534 S.W.2d 199 (Tex. App. — Houston [14th Dist.] 1976) (testimony of interested witness is sufficient to raise a fact issue precluding summary judgment).

Is the witness “interested”?

Another important area of inquiry is whether the witness is actually “interested,” within the meaning of the rule.  Clearly, parties in a case are interested witnesses, as are expert witnesses.  Not so clear is what other types of witnesses are considered “interested” for the purposes of Rule 166a(c).  

Generally speaking, an “interested witness” is one who has a stake in the outcome of the pending litigation.  Brooks v. Sherry Lane National Bank, 788 S.W.2d 874, 877 (Tex. App. – Dallas 1990).  The rule has also been extended to include a witness who has a stake in other litigation involving the same subject matter. Hayes v. E.T.S. Enter, Inc., 809 S.W.2d 652 (Tex. App. – Amarillo 1991). While employees of parties are considered “interested witnesses,” Castaneda v. Texas Dept. of Agriculture, 831 S.W.2d 501 (Tex. App. – Corpus Christi 1992), former employees are not.  Nicholson v. Smith, 986 S.W.2d 54 (Tex. App. – San Antonio 1999).  One court has extended the interested witness rule to include witnesses who have no stake in the litigation and who are not associated with either litigant, but who may have a pecuniary interest in the outcome. Martin v. Cloth World of Texas, Inc., 692 S.W.2d 134 (Tex. App. – Dallas 1985) [a real estate agent who could potentially earn income based on a particular outcome of the suit would have a “partisan feeling” about the case sufficient to subject the testimony to the requirements of 166a(c)]. 

When interested witness testimony is offered to support a motion for summary judgment, the most frequent objections lodged are that the testimony is: 

  • self-serving,
  • not free from contradictions or inconsistencies, and 
  • not readily controverted. 

Because each of these objections is problematic in its own way, attorneys should take care in making and responding to these types of objections.

Self-serving:  When dealing with interested witness testimony, this is perhaps the most common objection raised. Ironically, the term “self-serving” doesn’t even appear in Rule 166a(c) (or any other rule of evidence, for that matter). While interested witness testimony does tend to be self-serving, the mere fact that it is self-serving does not necessarily make the evidence improper in the summary judgment context. Trico Tech Corporation v. Montiel, 949 S.W.2d 308 (Tex. 1997). Assuming the interested witness testimony otherwise complies with Rule 166a(c), the fact that it is self-serving forms no basis for objection.

Contraditions and Inconsistencies:  Most often this objection is raised in the context of a “sham affidavit.”[1]  When raised in this context, this objection is also improper, because the 166a(c) “interested witness” rules apply only to the movant’s evidence.[2] However, when a movant offers contradictory or inconsistent interested witness testimony, then this objection is properly raised.

Not Readily Controverted:  “Could have been readily controverted” generally describes a particular type of evidence that can be effectively countered by opposing evidence. It is not a rule of convenience, it is a rule of possibility. Just because obtaining controverting evidence may be a difficult task does not mean that testimony is not readily controvertible. Casso v. Brand, 776 S.W.2d 551 (Tex. 1989). “Not easily controverted” most often applies to testimony regarding mental state, such as what an affiant knew or intended. When it involves the mental workings of an individual’s mind, the opponent could have no knowledge or ready means of confirming or disputing, and it would be considered not readily controvertible. Lukasik v. San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394 (Tex. App. – San Antonio 2000). Likewise, when the credibility of the affiant may be essential to the resolution of the case, then the testimony is not considered readily controvertible. One court held that since a deponent was not an eye-witness and he based his knowledge only on what others told him, the testimony was not readily controvertible. CEBI Metal v. Garcia, 108 S.W.3d 464 (Tex. App. – Houston [14th Dist.] 2003) (opponent could not readily controvert the deponent’s testimony by cross-examination at the deposition, since one cannot cross-examine a declarant who is not present).[3] Finally, in a spoliation situation, when a critical piece of evidence has been discarded, testimony regarding the missing evidence may not be readily controverted. Id

The importance of recognizing incompetent interested witness testimony cannot be overstated. If a proper objection is not raised in a timely manner, it is waived, and a summary judgment based on improper evidence may be affirmed on appeal. Some summary judgment evidence objections cannot be waived, however. But that’s a blog for another day.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


[1] A “sham affidavit” is an affidavit that contradicts the witness’ earlier testimony in order to create a fact issue to avoid summary judgment.

[2] There is a split in authority as to whether sham affidavits can be stricken in the summary judgment context.  However, rather than striking the affidavit at the summary judgment stage, many courts believe that the safer approach is to impose sanctions for filing an affidavit in bad faith after trial on the merits has been concluded.

[3] This was a novel and seemingly unnecessary use of the rule, since it appears that a simple hearsay objection may have sufficed.


Exceptions to the Best Evidence Rule

December 12, 2011

Best evidence is a lot like hearsay.  To understand the rule, you must understand the exceptions.  And, although the best evidence rule exceptions certainly aren’t as numerous as the hearsay exceptions, they are significant. 

There are five major exceptions to the best evidence rule, and they are found in Rule 1004 of the Texas Rules of Evidence.  Rule 1004, which codified existing state common law exceptions, specifically authorizes “other evidence” to prove the contents of a document[1] when the document (or its duplicate[2]):

  1. has been lost or destroyed;
  2. cannot be obtained;
  3. cannot be found in Texas;
  4. is in the possession of an opponent who fails to produce it; or
  5. is offered for a collateral purpose

(These Texas exceptions mirror the Federal Rules of Evidence, except that the federal rules contain no geographical exception equivalent to the third exception.)

 The importance of these exceptions can’t be overstated.  If an exception applies, then the best evidence rule no longer bars the use of secondary evidence to prove document contents.  In practical terms, this means that a witness may, through testimony alone, prove up the contents of a memo or a videotape, without ever tendering the memo or the videotape into evidence.  This is why it is so important to understand the exceptions, the applications and the limitations.

Lost or Destroyed:  This exception generally applies to inadvertent loss or destruction.  Under this exception, a claim that despite a reasonable and good faith effort to locate a document, it cannot be located may be sufficient to permit proof of the contents of a document through testimony or other secondary sources.  While the rule envisions accidental loss or destruction, even documents which have been intentionally destroyed may be proved up through secondary sources, assuming no bad faith on the part of the proponent. For example, in one federal case, the I.R.S. was able to use secondary proof of the contents of a taxpayer’s records, even though the agency itself had destroyed the records because the court found the destruction “negligent,” but not in bad faith.    

Not Obtainable:  This exception provides that secondary sources may be used to prove the contents of a document when it can’t be obtained by any available judicial procedure.  The exception is aimed at documents which are not in the possession of any party to the lawsuit which, despite reasonable efforts, simply cannot be obtained, either by informal persuasion or formal process.  Obviously, this exception would not apply to any document which could be obtained through subpoena duces tecum or deposition discovery subpoena. 

Not in Texas:  You don’t have to cross the Red River to look for documents.  As a practical matter, however, it may not be a bad idea to make the trip, since your opponent will not be precluded from doing so.  And if your opponent should obtain the document, then the exception would no longer apply.  In that event, the secondary source of evidence you planned to introduce at trial would now be inadmissible as violative of the best evidence rule, since the document would now be available in Texas.

Opponent Fails to Produce It:  This is an interesting rule which allows one party to put the other party on notice that proof of a particular document under the other party’s control[3] will be a subject of proof.  If, after being put on notice “by the pleadings or otherwise,” the other party does not produce the original, then secondary sources may be used to prove its contents.  One might wonder why this rule is necessary, given all of the discovery tools available today.  Since this exception applies to hearings as well as trials, it could be particularly useful in situations involving time constraints.  For example, when there is no time to obtain discovery prior to a hearing, or when outstanding discovery has been resisted, the contents of a document which has not yet been produced by the other side may be admissible, as long as adequate notice has been given.  Once on notice, then the other side has two choices:  (1) produce the document, or (2) face the secondary proof of its contents. 

Collateral Purposes:  This is perhaps the most important exception to the best evidence rule, and if an attorney can remember only one thing about the best evidence rule, this is it.  The best evidence rule does not apply when evidence is offered to prove something other than the contents of a document or when the contents do not relate to a controlling issue.  For example, the best evidence rule does not apply when the matter sought to be proven is not content, but notice, service or delivery of a document.   Likewise, if a heavy book falls off a shelf and injures a customer standing below, the best evidence doctrine does not require that the book be produced at trial, as the content of the book is a collateral matter. 

Summary: In this last series of three blogs, we have examined what the best evidence rule is and what it is not.  It is a rule which applies only to “documents” and testimony concerning the contents of documents.  It is a rule which allows a duplicate of any document to be just as admissible as the original, with a couple of narrow exceptions. 

What it is not is a rule which requires that the best witness be called or the best proof be offered at trial.  The application of the best evidence rule does not exclude evidence based on any type of qualitative assessment of the evidence as poor, good, better or best.  Its only aim is to insure accuracy of evidence under the premise that proof of the contents of a document should ordinarily come from the document itself.

– Bonnie Sudderth, Judge of the 352nd District Court, Tarrant County, Texas


[1] The term “document” includes writings, recordings or photographs.  TRE 1001.

[2] Originals and duplicates are used interchangeably here, because TRE 1003 elevates the status of a duplicate to that of an original, except under two narrow exceptions discussed in the last blog.

[3] Rule 1004 uses the word “control,” not merely possession.


The Running Objection

September 6, 2011

When a trial court commits error in admitting evidence, it’s a lot like the proverbial tree falling in the woods.  If no objection is lodged, it’s as if no one was in the woods to hear the sound.

Texas Rule of Appellate Procedure 33.1(a) requires that in order to preserve error for appellate review, a party must make a timely, specific objection and obtain a ruling on that objection. A corollary is that even if error is preserved by timely objection and ruling, prior or subsequent presentation of essentially the same evidence without objection will cure the error.  Consequently, all good trial lawyers understand the need to object each time objectionable evidence is offered or risk forfeiture of complaint on appeal.

Compare these rules with yet another which has also been generally accepted in the law:  When a party makes a proper objection to the introduction of certain testimony and is overruled, it may be assumed that the judge will make the same ruling as to other offers of similar evidence, and the attorney is not required to repeat the objection.  Sauceda v Kerlin, 164 S.W.3d 892, 920 (Tex App.–Corpus Christi, 2005) (reversed on other grounds in Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008).

How can these seemingly contradictory rules be reconciled?  It may depend on whether the case is being tried to the court or to a jury.  In some cases involving bench trials, appellate courts seem to dispense with the requirement for ongoing objections on a subject once the court has ruled.  Crispi v. Emmott, 337 S.W.2d 314 (Tex. Civ. App. — Houston 1960); Bunnett/Smallwood & Co. v. Helton Oil, 577 S.W.2d 291 (Tex. Civ. App. — Amarillo 1979).  However, in most cases, particularly those involving jury trials, the only way for error to remain preserved – short of continuous and repetitive objections – is to obtain a running objection.

The running objection is a procedural device which permits an attorney to lodge one objection which applies to all testimony relating to a particular line of questioning.  Unfortunately, because the running objection is a creature of common law, there is no specific rule to guide attorneys in the proper procedure for invoking its use.  Traditionally, however, attorneys will request a running objection after one or two objections on a similar subject matter have been lodged and overruled. 

A running objection which has been properly requested will satisfy the TRAP 33.1(a) requirements for preservation of error on appeal.  Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000).  However, the protection afforded by a running objection is limited.  Care should be taken in articulating the running objection, as it will be effective only as to questions which fall squarely within its stated scope.  It should be specific and unambiguous, City of Fort Worth v. Holland, 748 S.W.2d 112, 113 (Tex. App. — Fort Worth 1988), and should also clearly identify the source and specific subject matter of the expected objectionable evidence.  Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). 

Some courts have held that the scope of a running objection is limited to similar evidence elicited from the same witness.  Leaird’s, Inc. v. Wrangler, Inc., 31 S.W.3d 688, 690-691 (Tex. App. — Waco, 2000).  Others allow a broader application, extending it to all testimony pertaining to the same type of evidence, as long as the running objection has been “properly framed” to embrace testimony elicited from other witnesses.  Huckaby v. A.G. Perry & Son, Inc., 20 S.W.3d 194 (Tex. App. — Texarkana 2000). 

The most recent Texas Supreme Court case which addresses the use and limitations of a running objection is the 2004 decision in Volkswagen, 159 S.W.3d 897.  In that case, Volkswagen requested a running objection to the introduction of a television news report interview of an unidentified witness to the collision at issue.  Before trial, Volkswagen lodged a hearsay objection to “showing that videotape and… to any reference to any alleged witness and… any reference to…what he may or may not have seen out there.”  The trial court overruled the objection, but granted a running objection.  Thereafter, the jury viewed a videotape of not only the witness interview, but also of the news reporter’s additional commentary regarding her conversation with the witness. 

The Supreme Court held that Volkswagen’s initial objection to the evidence complied with TRAP 33.1(a) and its requested running objection clearly identified the source and specific subject matter of the expected objectionable evidence. By “plainly identi(fying) the source of the objectionable testimony, the subject matter of the witness’s testimony and the ways the testimony would be brought before the jury,” Volkswagen, through its running objection, “preserved the complaint not only to the unidentified witness’s testimony but also to the reporter’s testimony concerning what the witness said.” Id.at 907.

Three notes of caution:  

  1. Even after a running objection has been granted, an attorney should remain vigilant as to the questions asked and answers given.  If subsequent testimony is objectionable on grounds which weren’t included in the original running objection, then the new grounds for objection must be asserted in a timely manner or they will be waived.
  2. Make sure you receive a ruling on your request for a running objection, or you may waive that, too.  Diversified Energy Products, Inc. v. Texas Development Co., 1999 WL 93265 (Tex.App.-Hous. (14 Dist.) Feb 25, 1999) (not designated for publication); City of Fort Worth, at 113.
  3. When in doubt, re-urge the objection and the request for a running objection. (It can’t hurt.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Judicial Admissions Through Statements by Attorneys

August 2, 2011

Anything you say can and will be used against you in a court of law.  Although the importance of this warning in the criminal law context is well understood, lawyers who venture into the arena of civil litigation would do well to consider how that concept might apply to them.

The reality is that any statement, whether oral or in writing, made to the court by an attorney on behalf of his or her client could potentially be used against that client later in court.  And, unfortunately, the more articulate, lucid and straight-forward the statement, the more likely it is to get the client into trouble.

It is well-settled in Texas law that any assertion of fact not pleaded in the alternative which appears in a party’s live pleadings will be regarded as a formal judicial admission.  Houston First American Savings v. Musick, 650 S.W.2d 764 (Tex. 1983).  As long as the admission stands unretracted, the fact admitted is accepted as true.  Texas Processed Plastics, Inc. v. Gray Enterprises, Inc., 592 S.W.2d 412 (Tex. App. – Tyler 1979).  As with other types of judicial admissions, the statement must be deliberate, clear and unequivocal.  Id.  

Over the years, this rule has expanded beyond live pleadings, to statements made in briefs and other motions, as well as arguments made by attorneys during hearings and at trial, including:

  • Remarks at Charge Conferences:  Attorney’s stated rationale for not lodging an objection to the omission of a separate damage question – that he agreed that the damages already sought under a different legal theory would be the same – was held sufficient to bind his client to that position.  American National Petroleum Co. v. TransContinental Gas Pipeline Corp., 798 S.W.2d 274 (Tex. 1990).
  • Argument at Trial:  Urging the statement-by-agent hearsay exception as one ground for admissibility of declarant’s statement was an admission establishing that the declarant was his client’s agent as a matter of law.  Carroll Instrument Co., Inc. v BWB Controls Inc., 677 S.W.2d 654 (Tex. App. – Houston [1st Dist.] 1984).  
  • Stipulations:  Stipulation by a party that he signed an instrument in the capacity of guarantor is a judicial admission requiring no written evidence of guaranty status, notwithstanding the Statute of Frauds.  Menendez v. Texas Commerce Bank, 730 S.W.2d 14 (Tex. App. – Corpus Christi 1987).

Perhaps the biggest trap for the unwary is in summary judgment proceedings.  While it is elementary that pleadings do not constitute summary judgment proof, an exception is made for the admissions contained therein.  Judicial admissions contained in pleadings may be used to support a summary judgment.  Underhill v. Jefferson County Appraisal District, 725 S.W.2d 301 (Tex. App. – Beaumont 1987).

The easiest trap to avoid is typographical errors.  In De La Fuente v. Home Savings Assn., what appeared to be a typographical error as to a particular date in a live pleading was held to conclusively prove that a note was assigned to a third party on the very same day that it was executed, rendering it void and unenforceable by law.  669 S.W.2d 137 (Tex. App. – Corpus Christi 1984) (providing yet another reason to avoid over-reliance on spell-check).

Fortunately, there are some safe harbors: 

  • Law vs. Fact:  An attorney can’t judicially admit what the law is or a legal conclusion to be drawn from facts pleaded.  Barstow v. Texas, 742 S.W.2d 495 (Tex. App. – Austin 1988); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex. App. – Amarillo 1967).  Keep in mind, however, that while the law itself cannot be judicially admitted, judicial error can. Flores v. Texas Department of Health, 835 S.W.2d 807 (Tex. App. – Austin 1992) (holding that the defendant’s assertion that he agreed with plaintiff that a particular finding of fact was not supported by the evidence was not “mere acquiescence to appellant’s argument” but a judicial admission “amounting to a confession of error.”) 
  • Impressions vs. Facts:  Statements which are merely impressions may not be sufficiently clear and unequivocal to be considered a judicial admission.  National Savings Insurance Co. v Gaskins, 572 S.W.2d 573 (Tex. App. – Ft. Worth 1978).
  • References:  Simple reference to another party’s affidavit will not constitute an admission that the facts contained therein are true.  American Casualty Co. v. Conn, 741 S.W.2d 536 (Tex. App. – Austin 1987).  Take care, however, when you assume for purposes of argument that your opponent’s position is true, to clearly demonstrate the conditional nature of your argument.  Hill v. Steinberger, 827 S.W.2d 58 (Tex. App. – Houston [1st Dist.] 1992) (wherein movant “accepted as true” all the factual allegations contained in his opponent’s original petition, thereby defeating his own summary judgment motion).
  • Damage Control:  By amending, withdrawing or retracting, you can at least eliminate the binding effect of an admission.  However, the pleading will still remain a statement “seriously made” and can be introduced in evidence as an admission against interest.  Kirk v. Head, 152 S.W.2d 726 (Tex. 1941).  This is very tricky business, however.  While a request made in final argument for a court to “overlook” an erroneously pleaded fact will not undo the admission, De La Fuente at 145, pleading the opposite or an inconsistent fact in the same document will.  Texas Processed Plastics at 416.

Finally, in an elegant twist of irony that could find its place only in the law, simple ineptitude may be the one sure thing to keep an attorney out of trouble.  Canales v. Canales, 683 S.W.2d 77 (Tex. App. – San Antonio 1984) (The transcript of the hearing “fails to convey with any degree of lucidity what was actually said or meant by the attorney.  There can be no judicial admission under those circumstances.”)

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


Use of Admissions at Trial

July 16, 2011

Admissions are powerful evidence.  Properly used, they not only conclusively establish the admitted fact, but they also serve to bar any evidence to the contrary.  The bar may be short-lived, however, if vigilance is not exercised to prevent inadvertent waiver.

Rule 198 of the Texas Rules of Civil Procedure addresses two types of admissions:  (1) admissions and (2) deemed admissions.  Of course, admissions respond to a request for admission by admitting the facts sought.  Deemed admissions occur when no response, or a late response, is made.  Deemed admissions are considered admissions without the necessity of a court order.

Both admissions and deemed admissions will retain their status as admissions until they have been withdrawn or amended by court order.  Hence, untimely denials, even if only a day or two late, are ineffective to negate deemed admissions.  Deemed admissions remain admissions until and through the date of trial, unless their withdrawal is sought and obtained by the trial court.

Most often admissions are read into evidence at trial.  However, this is not necessary if they have been filed with the court.  Admissions which are on file are effective without being introduced into evidence and will support a finding of that fact on final judgment.  Welch v. Gammage, 545 S.W.2d 223, 226 (Tex. App. — Austin 1977) (“[Although] the better practice is to introduce the requests for admissions and the responses into evidence… [nevertheless, they] may be considered as a part of the record if they were filed with the clerk of the court at trial time.”)

Whether admissions are read into evidence or simply filed with the papers of the court, no evidence which contradicts the admission may be introduced at trial over an objection.  In other words, the court should sustain any objection made to evidence which attempts to controvert the admitted fact.  The key, of course, is in lodging a timely objection.  Marshall v. Vise, 767 S.W.2d 699, 699 (Tex. 1989) (“a party waives the right to rely upon an opponent’s deemed admissions unless objection is made to introduction of evidence contrary to those admissions”).

Absent timely objection, however, evidence which controverts the admission may be properly received into evidence.  And once this happens, the admission is automatically downgraded from its status as a conclusively-proven fact and is relegated to mere evidence to be considered by the trier of fact.  Should this occur during a jury trial, then it becomes important that the admissions actually be formally received into evidence as well (as opposed to being on file with the clerk of the court).  Although there appears to be no case law on point, it is logical to assume that admissions which are of mere evidentiary value, i.e., admissions which simply furnish evidence on a fact in dispute, must be heard by a jury (as with any other piece of evidence), or they would not support a jury’s finding of fact consistent with them.

The treatment of admissions at the summary judgment stage, however, differs dramatically from that at trial on the merits.  Notwithstanding whether an objection is lodged, it seems well-established in case law that for purposes of summary judgment, the trial court cannot consider evidence which contradicts admissions.  Controverting evidence of this type will not create a fact issue to preclude summary judgment.  Instead, any evidence which controverts an admission is simply barred.  Beasley v. Burns, 7 S.W.3d 768 (Tex. App. — Texarkana 1999).

Beware, however, the Texas Supreme Court case which reversed a summary judgment based entirely upon deemed admissions.  Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam).  In Wheeler, the Supreme Court held that basing a summary judgment on deemed admissions alone was tantamount to a “merits-preclusive sanction” violative of due process. (“When a party uses deemed admissions to try to preclude presentation of the merits of a case, the same due process concerns [addressed in TransAmerican Natural Gas. Corp.] arise.”)

While Rule 198 places no limits on a party seeking any number of admissions of fact, opinion or application of law to facts, which, when combined, may serve to admit away an entire cause of action or defense, Wheeler cautions that admissions were “never intended to be used as a demand upon a (party) to admit that he had no cause of action or ground of defense.”  In light of this holding, one might expect that summary judgment motions based solely upon deemed admissions would be frowned upon by both trial courts and appellate courts upon review.

There are three other points which merit brief mention.  First, while admissions may be used by all parties in a case, they may only be used against the party who answered (or failed to answer).  This is true even in multi-party cases involving related persons and entities — an admission by one party cannot be used against another party, no matter how similar their interests.  Second, admissions may only be used in the case in which they were made.  And, finally, denials to requests for admissions are not admissible (although erroneous admission into evidence has been held to be harmless error).

– Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas

Update October 27, 2011:  See the recent Texas Supreme Court case reaffirming the holding in Wheeler regarding the use of admissions as a “merits preclusive sanction.”  http://www.supreme.courts.state.tx.us/historical/2011/oct/100854.pdf


About Judge Bonnie Sudderth

June 7, 2011

Judge Bonnie Sudderth, at age 30, was the youngest judge ever appointed as Chief Judge of the Fort Worth Municipal Courts. Six years later, in 2006, she ran in a contested Republican primary for election to the 352nd District Court bench, winning the seat for a term commencing on January 1, 1997. Because the bench was vacant at the time of her primary election, then-Governor George W. Bush appointed her to fill the vacancy for the remainder of 1996.  She has been re-elected three times to the district court bench, and is now serving her fourth term in office. All combined, Judge Sudderth brings more than 20 years of judicial experience to the bench. Judge Sudderth is also Board Certified in both Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specialization.

On the bench, Judge Sudderth is generally known for three qualities – a gentle and patient temperament, a common-sense approach to problem solving and a solid understanding of the law, evidence and procedure. “Despite what we see on T.V. and in the movies,” Judge Sudderth explains, “the Texas Code of Judicial Conduct requires that judges be ‘patient, dignified and courteous’ while on the bench. I take my ethical obligations very seriously.”

In 2000, she was elected President of the American Judges Association.  In the 2010-2011 term, she served as President of the Eldon B. Mahon Inn of Court. In 2010, her peers – the district judges of Tarrant County – elected her to serve as the Chair of the Tarrant County Juvenile Board.She currently serves on the Court Rules Committee of the State Bar of Texas.

Judge Sudderth also takes time from her duties as a judge to serve as a mentor to young lawyers. In 2008, Judge Sudderth was awarded the Outstanding Mentor Award by the Tarrant County Young Lawyers Association. That same year, she went on to win the statewide award, receiving the Texas Outstanding Mentor Award by the 24,000 member-strong Texas Young Lawyers Association.

Judge Sudderth is a legal scholar and teacher. For more than 10 years, she has served as an Adjunct Law Professor at the Texas Wesleyan School of Law, where Judge Sudderth teaches Texas Trials & Appeals to upper level law students. She also volunteers as a judge for Mock Trial and Moot Court intramural comopetitions. Between the fall and spring semesters, she also teaches a one-week intensive practicum on civil motion practice. Judge Sudderth has received the Distinguished Faculty Award for her service.

Judge Sudderth is well-known for her high ethical standards and her expectation that lawyers who appear before her exhibit the highest standards of ethics and professionalism. In the 1990s, Judge Sudderth served as a Commissioner on the state Judicial Conduct Commission, which is the disciplinary agency for all judges throughout Texas. She is a frequent lecturer on legal and judicial ethics and other topics related to the practice of law.

Judge Sudderth is an award-winning writer, having received the “Outstanding Series of Articles” award by the State Bar of Texas on two separate occasions. She has contributed more than 30 articles to the Tarrant County Bar Bulletin from 2005 to 2008 on topics related to the Texas Rules of Evidence.  “Five Adages for Advocates,” a series of five articles Judge Sudderth authored for young lawyers on  professionalism and the law appeared on the Texas Wesleyan Law School Board of Trial Advocates website in 2008. Judge Sudderth’s articles also appear in the In Chambers magazine, Court Review magazine and the Municipal Court Recorder.


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