The Dead Man’s Rule

April 11, 2012

It is said that dead men tell no tales.  But in Texas, sometimes they do.  It all depends on whether the Dead Man’s Rule applies.

Although reference to the Dead Man’s Statute is still fairly common in legal practice, the former Article 3716 Dead Man’s Statute, which was enacted in the 1870’s was actually repealed by the Texas Legislature in the early 1980’s.  The current law is found in Texas Rules of Evidence 601(b), and is now called the Dead Man’s Rule:

“Dead Man Rule” in Civil Actions: In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement…

Although the Dead Man’s Rule is similar to the former Dead Man’s Statute, it is less restrictive.  Thus, much of the case law decided prior to 1983 dealing with the admissibility of statements made by decedents is inapplicable because the language of the statute interpreted by those cases was considerably broader in scope.  The statute applied to all testimony, not just testimony at trial, and it applied to all transactions with a decedent, not just transactions based on oral statements made by a decedent.  

The purpose of the doctrine remains the same, however, and that is to prevent a party in litigation from offering testimony attributed to a deceased person when that person is no longer available to refute it.  Once death has sealed the decedent’s lips, the rule works to seal the lips of any other party who might benefit from fabricating conversations or statements.  Without such a rule, it is feared that a fraud could be more easily perpetrated either on behalf of or against a decedent’s estate.

While the former Dead Man’s Statute barred evidence of a decedent’s oral statements as to any transactions involving the decedent, the Dead Man’s Rule applies only to civil actions[1] when one party to the lawsuit is the executor, administrator, heir or legal representative of the decedent’s estate[2].  Unless the oral statement can be corroborated by a disinterested witness, it is excluded from evidence under the rule.  The Rule applies only in cases involving parties in their representative capacity, and does not apply when a party is suing in his own individual capacity.  For that reason, while the Dead Man’s Rule would apply to survival actions, it would have no applicability in a wrongful death action.[3]

Corroboration.  If any disinterested witness offers testimony as to prior statements made by a decedent, then such testimony will corroborate the testimony of the executor, administrator, heir or legal representative as to those same statements.  In that event, the executor, administrator, heir or legal representative is no longer barred from providing testimony about the statements.  Generally speaking, for purposes of this Rule, a disinterested witness is any person who is not an executor, administrator, heir or legal representative.  This may include relatives and close friends, as long as they do not have a financial interest in the decedent’s estate or the outcome of the lawsuit.  The corroboration may also come in the form of a document.

It is not necessary that the corroborating witness provide direct testimony about the decedent’s oral statement, so the corroborating witness need not actually have heard the words spoken.  All that is required is that the corroborating witness provide testimony that tends to prove the truthfulness of the testimony that would otherwise be barred.  For example, proof that a decedent subsequently acted in conformity with the decedent’s alleged oral statement would suffice as corroboration and render an executor’s testimony as to the statement admissible.

Waiver.  The applicability of the Dead Man’s Rule can be waived by calling the adverse party to the stand and eliciting testimony about statements which would otherwise be barred under the rule.  Unlike the Dead Man’s Statute, however, there is no waiver in the eliciting of these statements during discovery.  As with virtually all evidence that may be offered at trial, waiver can also occur by failing to object when testimony is offered in violation of the Dead Man’s Rule.

Jury Instruction.  In cases where a witness’s testimony has been excluded under the Dead Man’s Rule, the trial court is required to instruct the jury as to the application of the rule.  The last sentence of Rule 601(b) provides that a trial court shall “instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.”  The purpose of this instruction is to prevent one party from improperly suggesting to the jury that because there is no evidence at trial about decedent’s statements, the decedent must not have made any.

So, the bottom line is that dead men do tell tales inTexas.  Was there ever really any doubt?

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


[1] The Dead Man’s statute never applies in criminal cases.

[2] The rule also applies to guardians of estates.  In this circumstance, prior oral statements by a person later declared incompetent are treated the same as prior oral statements made by a decedent.

[3] But where the two causes of action are intertwined, the Rule would be applicable unless the claims are severable. 


Summaries of Evidence

February 26, 2012

Perhaps the best summary ever written appears in the Hitchhiker’s Guide, a fictitious travel guide touted in Douglas Adams’ humorous five-part “trilogy,” Hitchhiker’s Guide to the Galaxy, as the most comprehensive source of information on intergalactic space travel destinations. In the Guide, planet Earth is summed up in two words: “Mostly harmless.”

Summaries are a very efficient means of communication.  They can also be an effective evidentiary tool at trial, especially when a jury, or judge for that matter, would be otherwise overwhelmed with voluminous data necessary to determine a fact issue in dispute.  In recognition of that, the Texas Supreme Court long ago wisely decided that in certain circumstances summaries should be allowed to substitute for voluminous documents at trial and established a three-part test for admission of summaries. Applying this test, a summary of records would be admissible as long as the underlying records on which the summary was based were:  (1) admissible, (2) voluminous, and (3) provided to the opposing counsel for inspection.  

The purpose of this common law rule was convenience and ease in handling of exhibits, a practical solution to the problem presented to the trier of fact who faces massive amounts of documents in evidence. 

Rule 1006 Summaries:

More than a decade later, the Texas Rules of Evidence codified the common law rule on summaries and expanded it to include recordings and photographs.  The three-prong test was also incorporated into the language of the rule.  TRE 1006 now provides: 

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary or calculation.  The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place… 

 Under Rule 1006, a summary which meets the original three-prong test has one additional hurdle to admission.  Pursuant to the express language of the rule, a proponent must show that the summary is necessary because the voluminous underlying materials “cannot conveniently be examined in court.”  Trial courts are given broad discretion to decide what is convenient and what’s not. Provided the summary meets the requirements of Rule 1006 and does not convey a false impression of the evidence, it should be admitted into evidence.

The value of a Rule 1006 summary is in the use the jury may make of it.  When a summary is admitted into evidence, it is sent to the jury room as an exhibit, the same as would the underlying records on which it is based.  The jury may rely on the summary as evidence and base a verdict on it.  This is the essential difference between a Rule 1006 summary and the next type of summary, the pedagogical summary. 

Demonstrative (Pedagogical) Summaries:

A demonstrative summary, or as the federal courts often call it, a “pedagogical summary,” is the most common summary used at trial.  Like a Rule 1006 summary, a demonstrative summary also summarizes evidence for the jury to consider.  It may look a lot like a Rule 1006 summary, but it serves a different purpose.  While a Rule 1006 summary is used for convenience, a demonstrative summary is generally used as a tool of persuasion. 

For example, a demonstrative summary chart might be used simply to connect evidence that might otherwise seem disjointed or unrelated, as opposed to summarizing voluminous data, which is the purpose of the Rule 1006 summary. While the demonstrative summary may also have the added benefit of being convenient to the jury in considering the evidence, it is used primarily to highlight or organize certain evidence to aid in persuasion.

Trial courts generally permit the use of demonstrative aids, including summaries, during trial, especially during closing argument, because they are useful to the jury in considering the evidence.  However useful they may be, though, demonstrative summaries have no place in the jury room during deliberations.  This is the primary difference between the Rule 1006 summary and the demonstrative summary – a Rule 1006 summary is evidence in and of itself, a demonstrative summary is not.

Business Record Summaries:

There is yet a third type of summary which is frequently offered into evidence at trial.  Like a Rule 1006 summary, it may be received as actual evidence and considered by the jury during deliberations as evidence, yet it doesn’t have to satisfy the Rule 1006 requirements for admissibility.  These are summaries of voluminous business records which are normally maintained in summary format.  If a summary is the format in which business records are normally kept, then they can be admitted under the rules of evidence providing for the admission of business records, such as Rule 902(10), instead of Rule 1006.

To determine whether the summary may be admissible as an exception to hearsay, rather than a Rule 1006 summary, one should look to its purpose.  Rule 1006 summaries (and demonstrative summaries) are prepared for the purpose of litigation.  In contrast, the business summary is prepared for use by the company who keeps the record.  If they are business record summaries, then their admission is governed by TRE 803(6), the business record exception to the hearsay rule.  None of the requirements of Rule 1006 will be a predicate to admissibility.              

As a practice pointer, don’t limit the use of summaries to jury trials.  Even in a bench trial, a well-organized demonstrative summary can be a surprisingly effective persuasive technique.  Perhaps even more helpful, however, is the Rule 1006 summary, which can save a judge countless hours of sorting through records, data or other information necessary to make a decision in a case.

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


Unfiled Discovery Products As Summary Judgment Evidence

January 29, 2012

Prior to 1999, courthouses across Texas were running out of storage space for the voluminous discovery documents which were being filed in civil cases, particularly in complex litigation matters.  The Texas Supreme Court responded with the promulgation of TRCP 191.4, which for the first time excepted out certain types of discovery documents which, according to the rule, should not be filed with the court.  While this change apparently did accomplish its purpose of reducing the space necessary to store civil files, it also raised new questions as to the proper use and treatment of discovery products relied upon in the summary judgment context.

Generally speaking, if the discovery relied upon to support or defend a summary judgment motion is filed with the court, then a movant or respondent relying upon it need only make specific reference to it in the motion or response for the discovery to be considered properly before the court as summary judgment evidence.  However, if the discovery is unfiled, then additional steps must be taken to ensure that the discovery products are before the court for consideration as evidence in the summary judgment context.

TRCP 166a(d) provides that in order for unfiled discovery products to be used as summary judgment evidence, the party relying upon it must file a “statement of intent” to use the specific discovery as summary judgment proof.   To comply with this rule, many attorneys will file a “Statement of Intent” either as a part of the summary judgment motion or response, or as a separate pleading.  The latter is the safest approach, but is oftentimes unnecessary. 

First, case law is clear that a separate pleading is not required.  Moreover, despite the plain language of the rule, in certain circumstances even use of the words “statement of intent” is not necessary.  The requirement to file a “statement of intent” will be fulfilled when the discovery is attached to the motion and the motion clearly relies on the attached discovery for support, notwithstanding the lack of a formal “statement of intent” on file.  Blake v. Intco Investments of Texas, Inc., 123 S.W.3d 521 (Tex. App. — San Antonio 2003).

The bigger question arises as to whether unfiled discovery need be filed at all.  The rule itself does not clearly state whether it must be filed.  TRCP 166a(d) simply provides that unfiled discovery products may be used as summary judgment evidence if “a notice containing specific references to the discovery” is filed along with a statement of intent to use the specified discovery as summary judgment proof.”  The rule is silent as to whether the unfiled discovery must be attached to the motion or response as well, although the comments following the rule have been read by some to imply that they should be attached.  And, of course, that is the safest approach.

At least one court has applied TRCP 166a(d) to require that the unfiled discovery documents be filed with the court in advance of the hearing.  Gomez v. TriCity Community Hospital, Ltd., 4 S.W.3d 281 (Tex.App. — San Antonio 1999) (the summary judgment evidence was not before the trial court because appellants “failed to file the discovery materials referenced in their notice” prior to the summary judgment hearing).  Two other courts have interpreted the rule to permit specific references to be used rather than requiring a party to file the discovery document itself.  In both of these cases, however, the courts did require a recitation of the substance of the discovery product in order to meet the “specific reference” requirement of the rule.  E.B. Smith Co. v. U.S. Fidelity and Guaranty Co., 850 S.W.2d 621 (Tex. App. — Corpus Christi 1993) (interpreting the term “specific reference” to require the party relying on unfiled discovery to show the court “language” from the document); Salmon v. Miller, 958 S.W.2d 424 (Tex. App. — Texarkana 1997) (holding deposition testimony not properly before the court because movant provided specific page and line number references instead of excerpts). 

One court has held, albeit inferentially, that specific page numbers and other identifiers of that nature will suffice.  Grainger v. Western Casualty Life Insurance Co., 930 S.W.2d 609 (Tex. App. — Houston [1st Dist.] 1996) (unfiled deposition identified by deponent, volume and page number, unfiled interrogatories referred to by set and number, with a six-page summary of the evidence in a memorandum filed with the court).  The dissent in Grainger points out the two major problems with this approach.  First, this interpretation leaves no mechanism for a trial judge to access or verify the information which is not on file with the court.  Second, allowing a memorandum summary of the evidence in lieu of actual excerpts blurs the line between argument and evidence.  (In fairness, the opinion in Grainger was also based on the fact that the appellant had waived error by failing to object at the trial court level to movant’s reliance on unfiled discovery in this manner.)

In many ways, the law remains unclear as to how to treat unfiled discovery in the summary judgment context.  Until the Texas Supreme Court weighs in, at minimum, a movant or respondent should provide extensive verbatim quotes of the contents of any unfiled discovery which is being relied upon.  It is never a bad idea to file the discovery products themselves, but keep in mind that even when the discovery products are filed, the inquiry doesn’t stop there.  Especially when such documents are voluminous, specific references must be made to the particular excerpts being relied upon.  Otherwise, the trial court may refuse to consider it.  Kelly v. Gaines, 181 S.W.3d 394 (Tex. App. — Waco 2005).  As one court put it, a court shouldn’t be expected to “sift through a 500-page deposition to search for evidence.”  Guthrie v. Suiter, 934 S.W.2d 820 (Tex. App. — Houston [1st Dist.] 1996). 

Amen to that.

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


Summary Judgment Evidence – The Pleadings

January 7, 2012

Summary Judgment 101 teaches that pleadings, even sworn pleadings, are not competent summary judgment evidence.  All Texas lawyers learn early-on that they cannot rely on pleadings to prove a fact, raise a fact issue in dispute or otherwise provide evidentiary support for a summary judgment. 

While this is true as a general rule, it is not always so.  There are times when a summary judgment may be properly based upon the pleadings standing alone.  Whether a summary judgment can be based on pleadings depends in part on what cause of action is contained in the pleadings and whose pleadings are being considered.

Movant’s Pleadings

Generally speaking, a party moving for summary judgment cannot rely on statements of fact contained in its own pleadings, even if those pleadings are verified or sworn to.  However, if the plaintiff’s underlying cause of action requires a sworn response and if the defendant has failed to file a verified denial, then the plaintiff may move for summary judgment. 

The most common example of this is in cases involving suits on sworn accounts.  If a plaintiff properly pleads a suit on a sworn account and the defendant fails to file a verified denial of the account, then summary judgment may be granted based on the pleadings alone.  Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558 (Tex. App. — Dallas 2003) (“a defendant’s noncompliance with Rule 185 conclusively establishes that there is no defense to the suit on the sworn account).  Quite often, a respondent may be given an opportunity to cure the pleading defect prior to summary judgment, but failing that, a summary judgment would be appropriate.  In these cases, the movant’s pleadings are not considered summary judgment “evidence,” but absent a verified denial, movant’s pleadings do constitute prima facie proof sufficient to support the summary judgment. 

Non-Movant’s Pleadings

Likewise, a non-movant may not rely on its own pleadings to establish a fact necessary to defeat a summary judgment motion, even if the pleading is verified.  However, under certain circumstances, a movant may rely on the non-movant’s pleadings to establish its entitlement to summary judgment. 

Admissions:  The first way that this can occur is when a non-movant’s pleadings contain statements of fact or conclusions which are not pled in the alternative and which are directly contrary to its own theory of recovery or defense.  Statements of fact such as these contained in the non-movant’s pleadings are considered judicial admissions which are conclusively established without the necessity of other evidence.  For that reason, a non-movant’s pleadings of this nature may support a summary judgment for the moving party.  As with the rule on suits on sworn accounts, admissions contained in the non-movant’s pleadings are not considered summary judgment “evidence” per se, but may nevertheless support the judgment. Judicial admissions are not considered summary judgment proof, but rather a waiver of proof because of their binding effect as an admission.  Galvan v. Public Utilities Bd., 778 S.W.2d 580 (Tex. App. — Corpus Christi 1989) (defendant’s pleadings stating it was “an agency of the City of Brownsville, Texas” held sufficient proof to support plaintiff’s summary judgment on the issue of agency).

No Viable Cause of Action:  The second way that this can occur is when a party’s pleading contains no viable cause of action under the law.  This can occur in one of two ways:  (1) pleading a cause of action which is not recognized under Texas law, or (2) failing to plead any cause of action at all.  In either situation, a movant may support its motion for summary judgment on the non-movant’s pleadings alone.  Helena Lab. Corp. v. Snyder, 886 S.W.2d 767 (Tex. 1994).  Beware, however, that the Supreme Court expects that before a court grants a “no cause of action” summary judgment, the respondent be given an adequate opportunity to plead a viable cause of action.  Friesenhahn v. Ryan, 960 S.W.2d 656 (Tex. 1998) (holding that because the movant’s special exceptions were denied, the respondents were “never on notice that their pleadings may be deficient”; therefore, summary judgment was improper).

While in some cases summary judgment may be based upon pleadings alone, when the summary judgment motion is based on a pleading defect, such as a lack of verification required by law or failure to plead a viable cause of action, the movant should first file a special exception and have that matter heard sufficiently in advance of the summary judgment motion to allow respondent adequate opportunity to cure its pleading defects.  However, with regard to summary judgment motions based on admissions, an opportunity to cure is not required under the law.

In the next blog, we will explore issues regarding use of the more customary types of summary judgment evidence.

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


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.


Duplicates and the Best Evidence Rule

November 25, 2011

Your client has a perfectly legible photocopy of a deed, contract or other document, but despite a diligent effort to locate the original, it simply cannot be found.  In order to prevail, you know that that the contents of the original document must be proved at trial.  Can you overcome a “best evidence” challenge to the photocopy?  “Not bloody likely,” would have been the answer of the day in merry olde England.  In modern times, however, the prospects are substantially improved. 

For centuries, the common law best evidence rule provided that in order to prove the contents of a document, the original document must be produced in evidence at trial.  While this basic tenet still exists in Rule 1002 of the Texas Rules of Evidence, the codified version of the best evidence rule, perhaps the most important aspect of the modern version appears in the last ten words of the rule:

To prove the content of a writing…the original…is required except as otherwise provided in these rules or by law.

And one need only look to the very next rule – TRE 1003 – to find an exception that some would argue swallows the rule. 

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

As codified, the best evidence rule provides no bar to the use of a duplicate instead of an original, except under two narrow circumstances: 

  1. when the original’s authenticity is questioned, or
  2. when unfairness would result.  

In practical terms, this means that any objection to the introduction of a duplicate in lieu of an original should either raise a question of authenticity or unfairness. 

A bare-bones “best evidence” objection would not be proper, as it would not apprise the court of the reason why the duplicate should be excluded. 

Allowing duplicates makes sense.  With modern-day reliance on highly-accurate document reproduction technology, including faxes and scanners, and in an era when even record custodians don’t necessarily retain records in their original form, the contents of most documents should be able to be satisfactorily proved without anyone having to actually touch the original.  Only when there is a legitimate question of whether the underlying document is authentic or whether it’s fair to rely on a duplicate should the original be required. 

Authentication:  Up until the end of the 20th century, authentication could pose a legitimate concern to an attorney who sought admission of a document at trial which had been obtained from the other side in discovery.  However, with the promulgation of Rule 193.7 of the Texas Rules of Civil Procedure in 1999, which provides that any document produced by a party in response to a discovery request is automatically authenticated for use against the producing party, these authentication problems have disappeared.  Now the only documents which need formal authentication are the documents which are obtained from other sources. 

Keep in mind, however, that the issue is not whether there’s a question as to the duplicate’s authenticity.  Only when a question is raised as to the authenticity of the original will the duplicate be disallowed.  At least one court has held that a duplicate of a self-authenticated document is admissible under Rule 1003.  Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997) (holding a facsimile of a certified copy of a court record was admissible).   Englund was decided on a peculiar set of facts (the fax was sent from the office which also provided the authentication), and the court certainly did not go so far as to hold that authenticity could never be challenged as to all duplicates of self-authenticated documents.  However, a very strict reading of Rule 1003 would support such an argument.

Unfairness.  Assuming no authentication issues, a claim of unfairness will provide the only remaining hurdle to admissibility of a duplicate in lieu of an original.  Unfortunately, this evidentiary point is rarely raised on appeal, so there is little to guide in its application.  In Ladd v. State, a criminal defendant did argue that poor-quality photos of a crime scene were unfair due to their failure to accurately depict the scene.  This argument did not meet with success, however.  The sponsoring witness’ testimony that the photos did fairly depict the scene was held sufficient to satisfy Rule 1003.  3 S.W.3d 547 (Tex. Crim. App. 1999).

Scope of RuleLadd v. State also demonstrates that when it comes to modern-day application of the best evidence rule, it’s not just about documents anymore.  Pursuant to Rule 1001, the best evidence rule applies to:

  • Writings and Recordings – consisting of “letters, words, or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording or other form of data compilation;” and
  • Photographs – consisting of “photographs, x-ray films, videotapes and motion pictures.” 

Given the broad scope of Rule 1001, using duplicates in lieu of originals pursuant to Rule 1003, would encompass using photocopies of original photographs, duplicate recordings of original DVDs, videotapes and audiotapes, and scanned images of x-ray films, etc.

Allowing for duplicates to be used instead of originals provides a significant exception to the original doctrine of best evidence.  But the exceptions don’t stop there.  Next time we’ll take a look at what to do when your client can’t even manage to find a duplicate.

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


The Best Evidence Rule – Its Origins in Common Law

November 19, 2011

It’s a doctrine as old as the Middle Ages, yet it still lingers in the law.  Codified, modified, expanded almost beyond all recognition, the Best Evidence Rule remains the source of one of the most frequently misused objections at trial.  In the next series of posts, we will examine this most misunderstood doctrine, from common law to the codified rule, and its applicability to the modern-day practice of law.

It is often true that the best place to start in explaining what something is, is to explain what it is not.  What the best evidence doctrine is not is a rule which measures the value of evidence.  The law does not demand that an attorney produce the very best evidence to prove a fact in dispute.  Anything less than best – good, better or even poor evidence – if it tends to prove or disprove a material fact at issue, may be given probative value at trial without necessarily being subject to a best evidence objection.

For example:  A person makes a statement against interest in the presence of three people – the local constable, the parish priest and the village idiot.  Later at trial, the lawyer calls the village idiot to the stand to prove up the contents of the statement made.  Even though most would agree that testimony from either of the other two witnesses – the constable or the priest – would be better, the village idiot’s testimony can’t be stricken on the basis of a best evidence objection.  Just because better evidence exists, or a better source of evidence is available, doesn’t necessarily invoke the best evidence rule.[1]  The best evidence rule was not designed to be used as a method to critique an opponent’s evidence, but instead was developed for the purpose of insuring that evidence received has reliability.

At its inception, the common law best evidence rule was directed to disputes involving written documents.  To understand the source and rationale of this rule, perhaps it would help to understand its historical context.  The best evidence doctrine finds its roots in the same era as that of Johannes Gutenberg.  It was developed at a time when documents were rarely reproduced, and if they were, they were reproduced by hand.[2] 

Oftentimes the rights asserted by parties in court are derived from a written document, such as a will or a deed, and, historically speaking, reproductions or oral testimony regarding the content of such documents was simply not reliable.  Because of these circumstances, a best evidence rule emerged, requiring that if a document was the source of the rights, duties or responsibilities of a party, the original document itself should be examined to determine its contents.  Hand-written reproductions, or someone’s mere recollection or belief as to the contents of a document, were considered fraught with too much potential for human error or outright fraud. 

Texas courts continue to examine the purpose for this age-old doctrine.  Even in the modern era, four somewhat overlapping reasons have been advanced to justify a rule preferring production of the original: 

  1. The nature of documents is often such that the exact words are “of more than average importance, particularly in the case of operative or dispositive instruments … where a slight variation of words may mean a great difference in rights.”
  2. Secondary evidence — whether parol testimony or copies — is susceptible to both human and mechanical error.  The rule, therefore, enhances the probability of accuracy.
  3. The rule promotes the prevention of fraud because it allows the parties to examine documents for any defects or alterations, and it dampens any desire to color testimony as to the contents of documents, since any testimony is subject to immediate corroboration.
  4. The appearance of the original may furnish information as to its authenticity and significance that may be lacking in a copy, such as handwriting, paper and the like.

As with most new rules, the best evidence rule was for many years strictly enforced.  However, as courts began to realize the harsh consequences that sometimes resulted from such a strict application of the rule, exceptions developed.  Courts slowly began to accept some secondary evidence to prove contents of writings, especially in circumstances where the original had been lost or destroyed.  Over time, as technology continued to advance, even more flexibility was permitted in the substitution of copies for the original.

Given the fact that the best evidence doctrine was developed in an era as foreign to us today as is life on other planets, one may wonder whether it should have any place in our current body of law.  In modern times, where even the smallest businesses, and many private homes, are equipped with scanners and photocopiers, it is surprising that the doctrine hasn’t gone the way of the dinosaurs.  But the doctrine has survived, primarily because, unlike the dinosaurs, it has adapted to the changing world.   

Many would argue that the modern, codified version of the best evidence rule, which is found in Article 10 of the Texas Rules of Evidence, bears little resemblance to its ancestor in common law.  It is true that the best evidence rule has been liberalized considerably, but its primary purpose remains intact – to assist in the search for truth by minimizing opportunities for mistake and fraud in the introduction of evidence at trial.

In the next post, we will discuss the best evidence rule in the 21st century.

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


[1] At least one legal scholar has cited Young v. Young as an example of a Texas case which misapplies the best evidence rule in a similar way.  In that case, the court held, albeit in a footnote, that the court clerk’s file marks were “the best evidence” of when a document was filed.  854 S.W.2d 698 (Tex. App. – Dallas 1993).  Although the court clerk’s file marks might be the best evidence in a qualitative sense, the best evidence rule, applied correctly, shouldn’t bar other evidence to prove the date of filing. 

[2] Even with the invention of Gutenberg’s revolutionary printing press, Bibles could only be printed six pages at a time, and required 100,000 pieces of type.  The making of the type alone was a two-year process, and the setting up of pages prior to printing took at least a half a day per page. 


The Offer of Proof

October 1, 2011

Perhaps the broadest discretion enjoyed by trial judges is in the admitting or excluding of evidence at trial.  Much of the protection afforded a trial court judge in making evidentiary rulings is found in Rule 103 of the Texas Rules of Evidence, which clearly provides that an erroneous evidentiary ruling, standing alone, is not enough to get a case reversed on appeal.

First, as the rule makes clear, a bad evidentiary call isn’t even error unless it affects a “substantial right” of a party.  In other words, even if the appellate court disagrees with the judge’s evidentiary ruling, if the ruling did not affect the “substantial rights” of a party, there will be no error on appeal. The second, and perhaps most significant reason why trial courts are rarely reversed on appeal for evidentiary rulings is because most errors are waived.  Whether admitted or excluded by the court, Rule 103 provides the guideline on how to preserve error on the ruling. 

If the error is one of admitting evidence, then the steps for preserving error are fairly simple.  The party seeking its exclusion must make a timely and specific objection or motion to strike.  The two essential components of this rule are that the objection be timely and include specific grounds, unless apparent from the context. 

If the error is one of excluding evidence, then preservation of error becomes a bit trickier.  In most circumstances, Rule 103 requires that the proponent of excluded evidence make an “offer of proof” in order to preserve any error on appeal. 

An “offer of proof” is an informal bill of exception, and its purpose is two-fold:  (1) to give the trial court a second chance to look at the evidence before finally ruling on its admissibility, and (2) to complete the record on appeal so that it is clear to the appellate court exactly what was excluded at trial.

With offers of proof, timing is key.  Rule 103 provides that an offer of proof must be made before the jury is charged.  This deadline makes sense.  After all, if one rationale for requiring an offer of proof is to give the trial judge a second chance to make the correct ruling, it would make no sense for an offer of proof to occur after the time for introducing evidence has passed.

Trial courts have broad discretion in directing when the offer of proof can be made, but it is the attorney’s duty to make sure it’s timely.  What this means is that if the trial court directs an attorney to wait until lunchtime, or the end of the day, or some other time to make the offer, it will be incumbent upon the attorney to remember to make the offer at the appropriate time.  However, if the trial court refuses to allow an attorney to make the offer prior to the jury being charged, then reversible error has occurred.  4M Linen & Uniform Supply Co. v. Ballard, 793 S.W.2d 320 (Tex. App. – Houston [1st Dist.] 1990). 

Once the jury has been charged, the time for making an offer has passed.  Tempting though it may be, it is inadvisable for the parties to “agree” to postpone the making of offers until after the jury has begun deliberations.  While arguably a valuable time-saving device, this would thwart one of the primary purposes of the offer.  After all, what would happen if the court actually decided to admit the evidence which the parties agreed to offer while the jury was deliberating?

Furthermore, an attorney should never make a late offer when the trial court has refused to allow a timely one.  In this circumstance, the trial court has committed reversible error, and in the event of an adverse verdict, a new trial is guaranteed.  Why make a late offer and risk satisfying the appellate court that the trial court’s ruling was correct after all?  Id.

The mechanics of making an offer of proof are straight-forward.  The proponent simply needs to demonstrate the nature of the evidence with enough specificity so that the appellate court can determine its admissibility.  This can occur in one of two ways, both of which occur outside the presence of the jury. 

The easiest way is for the attorney to summarize the substance of the testimony.  Most attorneys and judges prefer this method because of its simplicity and expediency.  The second method is to call the witness to the stand and elicit the testimony in question-and-answer form.  While this approach is less convenient and more tedious, a question-and-answer format is mandatory if the other side demands it. 

For tangible evidence, simply mark the evidence as an exhibit and request its inclusion in the record on appeal.  (The same thing can be done for deposition testimony which has been excluded.)

Always keep in mind that an offer of proof is just that – an offer.  Therefore, at the conclusion of the recitation or presentation of the evidence, the proponent of the evidence should re-urge its admission.  As with any other offer of evidence, a ruling must be secured in order to preserve error.  In other words, after giving the court a second chance to consider the evidence, the attorney should secure a final ruling on admissibility.

One last pointer for those who successfully argued for exclusion:  If the excluded evidence could have been impeached or discredited through cross-examination, then it is a good idea to request a question-and-answer format during the offer of proof, followed by a request for brief cross-examination.  On appeal, an effective cross-examination may demonstrate that there was no harm in the trial court’s exclusion of the evidence, even if such exclusion was erroneous.

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


Use of the Fifth Amendment Privilege in a Civil Case

September 26, 2011

According to a 2006 survey, while almost 25% of Americans cannot name a single right guaranteed by the First Amendment, 38% erroneously believe that the right against self-incrimination is one of them.[1] Thanks in part to television crime shows, a third of all Americans at least understand that they have the right to remain silent, even if they don’t know exactly where that right can be found in the Constitution.

Of course, a witness’s right not to self-incriminate is found in the Fifth Amendment. (Article I, Section 10 of the Texas Constitution contains a similar provision as well.)  This Constitutional right includes a defendant’s right to: (1) remain silent, (2) not be called as a witness for the prosecution, and (3) not have the fact that he exercised his right against self-incrimination used against him. This principle is well-established in the criminal context where juries are instructed that the defendant cannot be compelled to testify, and that if he exercises his right not to testify, the jury cannot use this as any evidence of guilt whatsoever.

In civil cases, however, the juries receive no such instruction.  First of all, any party or witness in a civil case may be called to testify, whether they are facing criminal charges or not.  Second, witnesses in civil actions do not enjoy an unfettered right to refuse to answer questions on Fifth Amendment grounds. Finally, in a civil case it is perfectly permissible for a judge or jury to infer that a witness is guilty of wrongdoing if they invoke the Fifth Amendment privilege against self-incrimination in response to a question. (Of course, civil juries can’t send witnesses to jail for invoking the Fifth Amendment; they can only find them civilly liable.)

The Right to Refuse to Answer:

Just because a witness can been called to testify in a civil case doesn’t mean that the witness must answer every question posed.  Witnesses still enjoy their federal and state Constitutional rights against self-incrimination, even though they are not testifying in a criminal proceeding. If a question calls for an answer that might cause the witness to self-incriminate, then the witness may invoke the Fifth Amendment privilege against answering that question. Even in the civil context, this right against self-incrimination is an important one, because if a witness fails to invoke the Fifth Amendment and thereafter provides an incriminating answer, that answer can be used against the witness in a subsequent criminal case.

Unlike criminal cases, however, when a witness in a civil case invokes the protections of the Fifth Amendment, the inquiry does not simply stop there. It is well-settled law in Texas that when a witness in a civil case invokes the Fifth Amendment, the assertion of this privilege is subject to scrutiny by the judge, who will determine whether the refusal to answer is made in good faith and is justifiable under the circumstances.  Such an inquiry is a delicate undertaking, because the witness cannot be compelled to disclose the very information that the privilege protects, but in order to uphold the privilege, it must be shown that answering the question is “likely to be hazardous” to the witness.

As the Texas Supreme Court pointed out in Ex Parte Butler, the witness must be in potential jeopardy of prosecution under criminal law. 522 S.W.2d 196 (Texas 1975). For example, the threat of civil penalties and forfeitures – even if considerable in scope and amount – will not give rise to Fifth Amendment protections, since the conduct does not subject a witness to criminal prosecution. Likewise, for example, a witness may be compelled to testify as to the facts surrounding his committing insurance fraud (a crime), if it occurred more than five years earlier and hence beyond the criminal statute of limitations. (In that situation, further inquiry might be required to determine any applicable tolling provisions before the testimony is compelled.)  If after careful inquiry and consideration of all the circumstances of the case, the judge is perfectly clear that the witness is mistaken and that the answer cannot possibly have a tendency to incriminate, then the judge can compel the witness to answer the question.  Failure to answer at that point will subject the witness to possible contempt of court, which, ironically enough, may involve assessment of jail time.

It is also important to note that judicial scrutiny of the legitimacy of the Fifth Amendment invocation does not occur automatically. A court is not required to perform this inquiry sua sponte – opposing counsel must seek the trial court’s intervention through a motion to compel or other procedural tool. If counsel fails to raise this issue and provide the trial court with the opportunity to consider the issue, then any complaint as to improper use of the privilege is waived on appeal.

The Evidentiary Value of Invoking the Fifth:

Once it has been established that the witness has a right to refuse to answer a question, what happens next?  Simply stated, the judge or jury can infer that a witness committed the very crime that he was protected from testifying about.[2] But infer is all they can do. Invoking the Fifth Amendment does not give rise to a presumption of culpable conduct nor is it, standing alone, sufficient evidence to prove wrongdoing. Courts have routinely held that a Fifth Amendment claim of privilege will not substitute for other relevant evidence, pointing to the language of the U.S. Supreme Court case which first recognized the negative inference concept, that “the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them.” 

The failure to offer probative evidence in addition to the assertion of the Fifth Amendment privilege leaves the fact-finder with only an inference, and because an inference is considered nothing more than a mere suspicion, the inference in and of itself does not constitute more than a scintilla of evidence. Therefore, without more evidence, the negative inference which is permitted in these circumstances will not support a finding of fact or raise a fact issue which precludes summary judgment.

Consequently, while the negative inference associated with a Fifth Amendment claim of privilege is an important tool in a civil attorney’s arsenal, it is important that other evidence be discovered and presented both in summary judgment proceedings and at trial. When faced with a no-evidence challenge, either by motion for summary judgment or directed verdict, it will be important that the record contain additional probative evidence of the culpable conduct. Reliance on the inference of guilt alone simply will not overcome the evidentiary hurdle.

One might ask if the very person, perhaps the only person, who can testify as to essential evidentiary facts refuses to testify, how then can a party obtain probative evidence sufficient to defeat a no-evidence challenge?  In a recent appeal involving a hit-and-run fatality, an attorney raised this very point, arguing that public policy and the interests of justice are not served by allowing a wrongdoer to conceal all evidence, frustrate the discovery process, and evade civil liability through use of the Fifth Amendment. Unfortunately, because the attorney failed to raise these public policy arguments before the trial court, the issue was deemed waived and not considered on appeal.  Webb v. Maldonado, 331 S.W.3d 879 (Tex. App. — Dallas 2011).

The bottom line is that in a civil case, the invoking of the Fifth Amendment is powerful evidence – juries instinctively understand that in order for a person to claim the right not to self-incriminate, there must have been incriminating conduct to begin with. When instructed by the court that they may consider this as evidence of guilt, most juries do not hesitate to do so.  So, while the Fifth Amendment claim may be used as the nail in the coffin of your opponent’s case, there will be no burial without something more.

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

(For more information about the use of the Fifth Amendment privilege and Miranda warnings regarding its use in the criminal context, see http://blog.amjudges.org/?p=110.)


[1] The First Amendment recites five basic freedoms – freedom of speech, freedom of the press, freedom of religion, freedom to assemble and freedom to petition for redress from the government.

[2] This inference is recognized in both federal and state case law as well as Rule 513(c) of the Texas Rules of Evidence.


Admissions by Silence

August 12, 2011

“Deafening silence” is not an oxymoron.  For better or worse, silence can be a powerful form of communication.  And sometimes it’s not what is said, but what is not said, that finds its way into evidence at trial. 

There are two basic types of silence which are addressed in Texas evidentiary law.  The first involves nonverbal conduct which substitutes for a verbal expression, such as the pointing of a finger or the nod of a head.  This type of silent communication will be discussed in more detail in the next blog in this series.

The second type of nonverbal communication is more subtle.  It is mere silence accompanied by no other conduct which would indicate an intent to communicate.  It is the second type of silence that carries with it the most risk, because the simple act of remaining mute may be admissible as an admission against interest under certain circumstances. 

Generally speaking, Texas law provides that if a statement is made in another’s presence, mere silence on the listener’s part will not constitute an adoption of the truth of the statement.  Failure to speak up in that situation would be no proof as to the truth or falsity of the words actually spoken.  However, when a statement is made in another’s presence which affects that party or his rights and is of such a nature as to call for a reply, then the statement, in connection with a total or partial failure to reply, is admissible as an admission to show a concession of the truth of the facts stated.  Miller v. Dyess, 151 S.W.2d 186 ( Tex. 1941). 

For example, in Dodd v. Harper, a trial court rejected a claim against a decedent’s estate, finding that the contract upon which the claim was based was illegal and unenforceable.  At trial, there was no direct evidence proving the illegal nature of the contract.  Nevertheless, the court of appeals affirmed, holding that when the creditor failed to contradict the administrator’s explanation as to why he would not honor the claim (because the cash loan was to carry a 5-to-1 payoff on an illegal drug transaction), his silence was a concession of the truth of the facts stated.  670 S.W.2d 646, 650 (Tex. App. — Houston [1st Dist.] 1983).  Rather than deny the administrator’s allegations, the creditor only countered that if the decedent were still alive he would have been “a gentleman” and repaid the money.  This partial failure to reply constituted an admission sufficient to support a finding that the creditor and the decedent had been involved in an illegal drug deal.  Id.  

Dodd further highlights the fact that although silence in the face of accusation may give rise to an admission, such admission is not direct evidence, but circumstantial evidence.  As such, the admission is subject to the equal inference rule, i.e., that when circumstantial evidence gives rise to two or more inferences, none more probable than another, neither inference may be reasonably inferred.  Hence, an admission by silence will arise only when no other explanation is equally consistent with silence.  West v. Austin National Bank, 427 S.W.2d 906 (Tex. App. — San Antonio 1968). 

Admissions by silence have also been found in statements made which omit facts later alleged.  Texas General Indemnity Co. v. Scott, 253 S.W.2d 651 ( Tex. 1953).  If the omitted fact was so important that a person would ordinarily have been expected to relate it, the failure to mention the fact in a prior statement is an admission that the event did not occur.  Waldon v. City of Longview, 855 S.W.2d 875 (Tex. App. — Tyle 1993) (finding no error in admitting a prior statement containing no mention of the use of a turn signal after the plaintiff testified at trial as to the use of the signal prior to the collision).

There are some circumstances under which an admission by silence will not occur.  Besides being subject to the equal inference rule discussed above, an admission will not arise:

  • when it is not shown that the party sought to be bound by the admission was present when the statement was made. Eardley v. Eardley, 253 S.W.2d 69 (Tex. App. — San Antonio 1952).
  • when the silent party would not know whether the statement was true or not. West at 909.
  • when the silent party did not fully hear or understand the statement made. Landers v. Overaker, 141 S.W.2d 451 (Tex. App. — Dallas 1940) (85 year-old grandmother didn’t fully hear or understand statements made in her presence).

“Why should I dignify that with a reply?”  It’s a rhetorical question we hear frequently which is usually intended to communicate the idea that the accusation itself is unfairly disparaging or without merit.  But in the legal world, this rhetorical question (especially when it is unspoken) is worthy of serious contemplation, and its answer can have significant practical implications. 

It’s not only the things your clients say that can get them into trouble.  The things left unsaid can cause problems, too.

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


Follow

Get every new post delivered to your Inbox.

Join 194 other followers

%d bloggers like this: