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


Limine Motions – Their Uses And Limitations

July 9, 2011

I can’t think about that right now.  If I do, I’ll go crazy.  I’ll think about that tomorrow.
- Scarlett O’Hara

Limine motions use a Scarlett O’Hara approach to evidentiary problem-solving  –  at best, the most they accomplish is putting off the ultimate decision for another day.  No matter whether a limine motion is granted or denied, no final ruling has been made on the admissibility of any evidence whatsoever.  A limine order simply establishes the ground rules by which an offer of evidence can later be made.  Because of this, no limine ruling will ever be considered error or grounds for reversal on appeal.  Understanding this concept is a key component to learning how to most effectively use this evidentiary tool.

It is also important to understand the two basic ground rules which a limine order puts into play.  They are simply this:  If the limine motion is granted, the proponent of evidence must first approach the bench for a ruling outside the jury’s presence before referring to the matter in front of the jury.  If the limine motion is denied, the proponent of the evidence may offer that particular evidence at trial just like any other piece of evidence.

Keeping these broad concepts in mind, when making or responding to a limine motion, here are the basic guidelines:

  • Rules:  Limine motions are creatures of common law.  Because in Texas there are no procedural rules which govern their use, attornneys should generally look to case law for guidance on substantive issues concerning limine rulings, and look to local rules for guidance on deadlines and other procedural aspects of getting them filed and heard.
  • Purpose:   Motions in limine are best used for situations involving inflammatory or highly prejudicial facts of questionable admissibility.  It is an exceptionally good method of identifying in advance evidentiary situations which invoke Rule 404 of the Texas Rules of Evidence – evidence, which although relevant, may be excluded because its probative value is outweighed by the risk of unfair prejudice.  A limine order keeps the skunk out of the jury box until the court has made a TRE 404 determination on whether the evidence can come in.  Because this is the essential purpose of the rule, many judges are disinclined to waste time considering limine requests on more mundane matters, absent an agreement between the parties which can be enforced without argument on the point.
  • Preserving Error:  Never rely on a limine ruling to preserve error — it doesn’t.  If the judge denies a motion in limine, then the objecting party must act just as though the limine motion were never filed at all.  At the time the objectionable evidence is offered, a timely, specific objection must be made and a ruling must be obtained thereon.  If the judge grants the motion, the proponent of the evidence must approach the bench outside the hearing and presence of the jury, make an offer of the evidence and get a ruling on the offer.  Oftentimes these offers are made during a bench conference or during a break when the court reporter is not recording the proceedings.  No error is preserved if no record is made of the offer and ruling.  It is also important to remember that error is not preserved unless this offer is made before the jury is charged (even if the parties agree otherwise).  
  • Violations:  The appropriate remedy for a limine violation is contempt of court, which is punishable by up to a $500 fine, a 6-month imprisonment, or both.   Because contempt (of court order) is the appropriate remedy for a limine violation, it is important to have a limine order actually entered.  Therefore, a prudent attorney will provide the judge with an order to sign immediately after the court rules on the limine motion.  Without a written order, contempt may not be available as a remedy.  However, a judge may also grant a mistrial in response to a limine order violation. 
  • Persuading the Court to Grant the Motion:  Given the fact that many courts don’t allocate much time to hear limine arguments, don’t bury an important limine issue among voluminous boilerplate requests.  Pick the most important issues and focus on them.  Don’t wait until the last minute to file the limine motion.  Absent a local rule governing their use, limine motions may be filed at any time, even after a trial has commenced.  But waiting that late is not advisable.  If a limine motion is important enough to file, then it’s important enough to be filed early and heard well in advance of voir dire.  This is especially important if the admissibility issue is unique or complex.  The chances of having a limine motion granted increase if the judge has had ample time to consider the issue, arguments and perhaps briefing.  Finally, since many limine issues cut both ways, obtaining agreement from opposing counsel on limine issues which are clearly appropriate and mutually beneficial is the easiest way to ensure that your motion is granted. 
  • Persuading the Court to Deny a Motion:  Most judges frown on conducting jury trials in piecemeal or disjointed fashion.  If an opponent’s limine motion would require frequent bench conferences outside the jury’s presence on non-inflammatory issues, an attorney may argue that this would impair the effective and efficient presentation of evidence in the case.  So, if the matters raised in the limine motion aren’t potentially prejudicial or inflammatory (such as an attempt to call a non-disclosed witness), then it may be argued that these matters are the type which would best be ruled upon in the ordinary course of trial.
  • When Not to File:  In a bench trial, for obvious reasons, although, believe it or not, I’ve actually seen that attempted a few times.

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


The Non-Responsive Objection

June 14, 2011

One of the most common trial objections is “Objection, non-responsive,” an objection which is often followed up by a motion to strike or to instruct the jury to disregard.  Yet, conspicuously absent from the Texas Rules of Evidence is any rule providing that non-responsive answers are inadmissible or subject to exclusion. 

The fact is, many non-responsive answers may be properly received into evidence, and when a court declines to exclude or strike a non-responsive answer, oftentimes no error is committed.  Because there is no wholesale bar to admissibility of non-responsive answers, one must look to other rules for guidance to determine admissibility in specific circumstances.

Texas Evidence Rule 402 provides that relevant evidence is generally admissible.  Rule 103(a)(1) provides that if the ground for objection is not apparent from the context, an attorney has the duty to enlighten the court as to why it is inadmissible.  Reading the two rules together suggests that a court may allow non-responsive testimony into evidence if it is relevant and no other objection is lodged or apparent from the context.  However, TRE 611(a) confers authority to the court to exclude that evidence as well:

“The court shall exercise reasonable control over the mode and order of interrogating a witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

Provided the court’s exercise of control is “reasonable,” in the quest for truth, efficiency and fairness, whether to admit or exclude non-responsive answers is left to the discretion of the trial court when no other ground of objection is lodged or apparent from the context.

In practical terms, when an attorney makes a “non-responsive” objection to evidence which otherwise appears to be admissible, the trial court has several permissible options.  If an answer is completely non-responsive to the question posed, then a judge is very likely to sustain the objection.  After all, attorneys are entitled to receive answers to questions properly propounded. 

However, the outcome becomes less predictable if, after responding to the question, the testimony takes a non-responsive turn.  In that situation, a judge might sustain a non-responsive objection on the basis that the additional testimony is repetitious.  An objection might also be sustained to avoid a rabbit trail which the judge believes would result in ineffective presentation of the evidence.  But a judge might also overrule the objection, especially if the testimony, albeit non-responsive, serves to clarify, explain or provide further details about the responsive portion of the answer in an effective and efficient manner.  Finally, there is nothing to prevent a judge from applying a very rigid approach, requiring strict adherence to responsive answers in Q & A form at all times, sustaining all valid non-responsive objections raised.  All of these approaches are well within the discretion of the trial court.

For that reason, a trial attorney should not rely on a “non-responsive” objection, especially when considering the preservation of error.  Instead, attorneys should focus on whether non-responsive answers are objectionable on other grounds.  Assuming other grounds exist to exclude the evidence, then the trial court’s discretion to admit or exclude the non-responsive answer can be substantially limited by combining another valid objection with the non-responsive objection. 

If a non-responsive answer contains hearsay, for example, then a hearsay objection should be included, e.g., “Objection — non-responsive, hearsay,” or simply “Objection — hearsay.”  Either objection will apprise the court of the true reason why the answer should not be admitted into evidence, i.e., that it is objectionable hearsay.  By so doing, the court’s attention is focused toward a particular rule which would require, as opposed to simply permit, exclusion under the circumstances. 

What does this mean for trial testimony?  There is nothing inappropriate about making a non-responsive objection.  It’s a great objection when an attorney wants the court to rein in a witness who is either evading questions or simply won’t shut up.  But the court is not bound to do so.  If the real problem is what is being said, as opposed to when it is being said, then the objection needs to identify that ground of objection, e.g., “Objection — irrelevant,”  “Objection — hearsay,” “Objection — best evidence,” etc.  By so doing, the court is forced to make an evidentiary ruling which carries with it far less discretion on review.

What does this mean for deposition testimony?  Ironically, the only objection permitted to deposition answers under Texas Rules of Civil Procedure 199.5(3)(e) is “Objection, non-responsive.”  Nonetheless, since non-responsive deposition answers, if otherwise admissible, may be received into evidence, an attorney cannot rely on the “non-responsive” objection alone as a basis for exclusion of the testimony at the time of trial.  At the time of challenge to the admissibility of deposition testimony for use at trial, the attorney should focus on the substantive objection.  As with live testimony, such an objection will serve to both apprise the court as to why the evidence needs to be excluded and preserve error for later review.

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


The Limitations on Admissibility of Prior Consistent Statements

June 7, 2011

There are few pieces of evidence that attorneys love to lay their hands on more than an opponent’s prior inconsistent statement. Admissibility of these statements is rarely in doubt, and they provide attorneys with a golden opportunity to ask the ever-popular cross-examination question: Were you lying then, or are you lying now?

More troublesome, however, are those pesky prior consistent statements. What should be done when a witness keeps telling the same story, the same way, over and over again?

Offered for the truth of the matter asserted, a prior consistent statement is blatantly inadmissible hearsay. It’s an out-of-court statement offered for the truth of the matter asserted, and no matter how many times a witness has said it before, frequency will not change that basic analysis.

Setting aside the hearsay problem for a moment, most prior consistent statements won’t even meet a threshold test of relevancy, because most prior consistent statements do not tend to prove or disprove a material fact in issue. This is because at best, the probative value of a prior consistent statement requires a leap of faith. In order for a prior consistent statement to be relevant, one must believe that if a person has said something enough times, it’s probably true. Common sense and experience tells us that just because grandpa’s been spinning that same yarn for the last fifty years, doesn’t make the tale any less dubious. Luckily, the Texas Rules of Evidence reflect that basic reality. Otherwise, that’s-my-story-and-I’m-sticking-to-it would become the test for admissibility under the rules.

So, for reasons of relevancy and hearsay, the general rule is that a prior consistent statement is inadmissible:

TRE 613 (c): A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).

However, there may be circumstances when a prior consistent statement may become admissible, providing an exception to the general rule:

TRE 801(e)(1)(B): A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

Some may argue that Rule 801(e)(1)(B) opens the barn door to admission of virtually all prior consistent statements. It does no such thing. Rule 801(e)(1)(B) narrowly tailors an exception unique to particular factual circumstances. In order to be admissible, there must be: (1) an express or implied charge, (2) against the declarant, (3) of recent fabrication or improper influence or motive. If the other side doesn’t open the door to this testimony by making such a charge, then Rule 801(e)(1)(B) never comes into play, and the statement remains inadmissible.

The language of the rule is highly restrictive. For example, merely impeaching a witness or calling into question a witness’s veracity will not in and of itself invoke the Rule 801(e)(1)(B) exception. Furthermore, a prior consistent statement will remain inadmissible, even under a charge of recent fabrication, if the statement was made shortly before trial, in anticipation of trial, or after a motive to fabricate existed. Beaver v. State, 736 S.W.2d 212 (Tex. App. – Corpus Christi 1987).

Even when there has been an express or implied charge against the declarant of improper influence or motive, a predicate must be laid for the admission of the prior consistent statement. As a general rule, appellate courts will not require a trial judge to be a mind-reader. Unless it is painfully obvious from the context, rules of procedure and evidence require that an attorney, when faced with an objection, articulate to the judge the purpose of any offer of evidence. Under Rule 801(e)(1)(B), an attorney seeking the admission of a prior consistent statement over objection should be prepared to educate the judge as to the reason why the exceptions embraced in Rule 801(e)(1)(B) apply. It is not the judge’s burden to read between the lines and figure out that the statement would rebut the opponent’s charge. The statement must be “offered” into evidence for that purpose. If the attorney fails to lay the proper predicate for the prior consistent statement’s admissibility, then the judge may rightfully reject it.

Likewise, when challenging an opponent’s attempt to offer a prior consistent statement into evidence, an attorney needs to clearly articulate the basis for the objection. Simply saying, “Rule 801, hearsay” in opposition to a prior consistent statement has been held insufficient to put the trial court on notice as to the particular objection being lodged. Meyers v. State, 865 S.W.2d 523 (Tex. App. – Houston [14th] 1993). A concise statement that (1) the statement offered is a prior consistent statement, (2) which does not fall within the exceptions of Rule 801(e)(1)(B), should be adequate both to make clear your objection and to preserve error on the point, if necessary.

I’ve said all of this before, and now I’m saying it again. It’s just got to be true. And admissible. Well, maybe not.

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


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