Hearsay Exception #3 – Then-Existing Mental, Emotional or Physical Condition

February 2, 2014

The third hearsay exception – TRE’s 803(3) then existing mental, emotional or physical condition – is also similar to the first hearsay exception, the present sense impression.  As its name implies, this exception applies to statements about a declarant’s state of mind at the time the statement is made.  Included within this exception are statements about thoughts, emotions, sensations and physical condition.

Texas courts have held that the type of statement contemplated by this rule would include a statement which, on its face, expresses or exemplifies the declarant’s state of mind, e.g., fear, hate, love, pain. What isn’t included in the exception are statements of memory or belief.*  As with the excited utterance, this exception includes an element of contemporaneity. Once the subject matter sensation has passed, a declarant’s statement about it no longer falls within this exception.

Likewise, while a statement regarding the existence of a mental, emotional or physical condition falls within this exception, its cause does not. One federal court has explained this distinction this way:

A (declarant may say) “I am scared,” but not “I am scared because the defendant threatened me.” The first statement indicates an actual state of mind or condition, while the second statement expresses belief about why the declarant is frightened. The phrase “because the defendant threatened me” is expressly outside the state-of-mind exception because the explanation for the fear expresses a belief different from the state of mind of being afraid.

That being said, don’t let the inquiry stop there.  In the above example a creative lawyer still might manage to get both statements into evidence by looking to other hearsay exceptions.  Depending upon the circumstances under which the statement “the defendant threatened me” was made, the latter statement, while not falling within the state of mind exception, might constitute an excited utterance discussed in the last post.

Most understand the notion of objecting to evidence on the grounds of “double hearsay” (hearsay-within-hearsay); don’t forget the possibility of offering evidence under a “double hearsay exception” as well.

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

*(unless the statement is related to the execution, revocation, identification or terms of a declarant’s will)


Hearsay Exception #2 – The Excited Utterance Exception

September 8, 2013

Hearsay exception number two – the excited utterance exception – is often confused with previously-discussed hearsay exception number one, the present sense impression.  And while they are similar, and even on occasion, simultaneously applicable, the excited-utterance exception is significantly broader in scope.  One way to differentiate between these first two hearsay exceptions is to identify the rationale underlying each of them.  As discussed in the prior post, the rationale for the present sense impression exception stems from the statement’s contemporaneity.  The rationale for the excited utterance exception, on the other hand, is rooted in its spontaneity.

Texas Rules of Evidence 803(2) defines the excited utterance as a statement relating to a startling event or condition made while the declarant was under stress or excitement caused by the event or condition. So, unlike the present sense impression statement which must have been made at or near the time the declarant was perceiving the event or condition, the excited utterance may occur at any time – hours or even days later.  The test in determining whether a statement is an excited utterance is not when the statement was made, but whether the declarant was still dominated by the emotions, excitement, fear or pain of the event when the words were uttered. Of course, the amount of time which has elapsed between the occurrence of the startling event and the utterance is a factor considered in determining the admissibility of the hearsay statement, but it is not the only consideration.

Another key difference between the present sense impression and the excited utterance is the type of testimony which can be elicited using these exceptions.  The subject matter restriction of the excited utterance exception is considerably more liberal than that of the present sense impression.  Statements of present sense impression are limited to statements “describing or explaining an event or condition,” whereas, excited utterances need only “relat(e) to a startling event or condition.”

For the excited utterance exception to apply, three conditions must be met:

  1. the statement must be a product of a startling occurrence that produces nervous excitement in the declarant and renders the utterance spontaneous and unreflecting,
  2. the state of excitement must still so dominate the declarant’s mind that there is no time or opportunity to contrive or misrepresent, and
  3. the statement must relate to the circumstances of the occurrence preceding it.

These first two exceptions – the present sense impression and the excited utterance – often occur at the same time, and when they do the hearsay statement will fall within both exceptions.  However, it is important to recognize the differences between them.  Especially when too much time has passed between the occurrence and the statement, or when the statement delves into matters beyond mere description or explanation of the event, the proponent should move to hearsay exception number two, the excited utterance exception, to find a basis for admissibility.

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


Hearsay Exception #1 – The Present Sense Impression

June 30, 2013

The first exception to the hearsay rule, Rule 803(1) of the Texas Rules of Evidence, is the present sense impression – a statement describing or explaining an event made while the declarant was perceiving the event or immediately thereafter.  A simple rule requiring little explanation or discussion, this exception is based upon the premise that the contemporaneity of an event and the declaration that follows ensures reliability of the statement.  The reliability rationale which underlies the present sense impression exception is that:

  1. the statement is safe from any defective memory errors because of its contemporaneous nature;
  2. there is little or no time for a calculated misstatement; and
  3. the statement will usually be made to another (the witness who reports it) who would have an equal opportunity to observe and therefore check a misstatement.

One court has characterized the rule as “predicated on the notion that the utterance is a reflex product of immediate sensual impressions, unaided by retrospective mental processes:”

It is instinctive, rather than deliberate.  If the declarant has had time to reflect upon the event and the conditions he observed, this lack of contemporaneity diminishes the reliability of the statements and renders them inadmissible under the rule.  Once reflective narratives, calculated statements, deliberate opinions, conclusions, or conscious thinking-it-through statements enter the picture, the present sense impression exception no longer allows their admission.  Thinking about it destroys the unreflective nature required of a present sense impression (Fisher v. State, 252 S.W.3d 375, Tex. Crim. App. 2008).

Understanding the rationale for the rule will help the practitioner understand whether a particular statement falls under this exception. While the declarant need not be in an excited or agitated state, as with the exited utterance exception (which will be discussed in the next post), the declarant’s statement should evince a stream-of-consciousness or unguarded quality that would not be present in a declarant’s later statement regarding the very same observation or event.

The present sense impression is to hearsay statements what the play-by-play announcer is to broadcast sports.  When Frank Gifford said, “Thiesmann’s in a lot of trouble,” no one had yet seen the replay which later became NFL’s Most Shocking Moment in History.  Yet Gifford’s present sense impression was dead-on accurate, reliable and worthy of repeating, even in a court of law.

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


Statements Which Are Not Hearsay

May 5, 2013

While it is generally true that if an animal looks like a duck and quacks like a duck, it’s a duck, when it comes to hearsay statements, this isn’t necessarily so.  A statement can look like hearsay, sound like hearsay and still not be hearsay at all.  Several general types of statements fall squarely within the definition of hearsay provided in Texas Rules of Evidence 801, but simply aren’t.  Why not?  Because subsection (e) of TRE 801 says so.

As mentioned in the prior post, these five categories of non-hearsay which have been carved out and enumerated in TRE 801(e) are:  (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding.  These statements described in TRE 801(e) are not hearsay exceptions, but rather statements which are not considered hearsay to begin with.  When responding to a hearsay objection lodged against these types of statements, the proper response is not that the statement falls within an exception to hearsay.  The appropriate response is that these statements are not, by rule, hearsay at all.

Impeachment by Prior Inconsistent Statements:

Any witness may be impeached by showing that on a prior occasion he made a material statement inconsistent with his trial testimony.  Such a statement can be taken from many sources – from formal, sworn statements made in prior testimony, affidavits or discovery responses, to casual remarks made by a witness to a bartender at the local pub.  With regard to the latter, because it is unsworn, this statement can only be used to attack the credibility of the witness, and may not be received as evidence to prove the truth of the matter asserted by the witness on the prior occasion.  (In such situations, the attorney resisting the admission of the prior statement should request that the court give a limiting instruction to the jury that the statement can be considered for impeachment purposes only.)

However, if the prior inconsistent statement meets the requisites of sworn testimony under TRE 801(e)(1)(A-D), then it is admissible as non-hearsay both to impeach credibility and to prove the truth of the matter asserted.  In order to rise to the level of substantive, probative evidence, the witness’s prior statement must be: (1) inconsistent with the witness’s current testimony during a trial or hearing, and (2) given under oath, subject to the penalty of perjury, at a trial, hearing, deposition or other proceeding (see TRE 613(c)).  In addition, the witness must testify at trial or hearing and be subject to cross-examination concerning the prior inconsistent statement.  Assuming these conditions have been met, the actual substance of a witness’s prior inconsistent statement is admissible as non-hearsay to prove the truth of the matter previously asserted.

Prior Consistent Statement to Rebut:

Bolstering a witness by attempting to elicit prior consistent statements is generally not permitted.  However, while a witness’s prior consistent statements would normally be inadmissible hearsay, TRE 801(e)(1)(B) categorizes certain prior consistent statements as non-hearsay.  Under this rule, the admissibility of prior consistent statements is restricted to use in rebutting an express or implied charge of either recent fabrication or improper influence or motive.  Absent such an allegation, either express or implied, a prior consistent statement remains inadmissible under TRE 613(c).

If admissible, then the prior consistent statement may be used to both rebut the charge levied and to prove the truth of the matter asserted in the prior staement.  However, the statement must have been made before the charged recent fabrication, improper influence or motive arose in order to fall within the ambit of TRE 801(3)(1)(B).

Statement of Identification:

A prior statement of identification of a person made after perceiving the person is also defined as non-hearsay.  While this rule is obviously used mostly in criminal cases, the rule is applicable in civil cases as well, so it’s a good rule to remember, especially for situations where a tortfeasor’s identity is at issue.

(Applicable only to criminal cases, a statement made by a child under the age of 13 is also defined in TRE 801(e) as non-hearsay, if the statement comples with Texas Code of Criminal Procedure 38.071.)

Admissions by Party-Opponent:

Admissions by party-opponent are included in TRE 801(e) as statments which are considered non-hearsay.  This type of admission is defined as a statement which is offered against a party and is (A) the party’ own statement in either an individual or representatiave capacity; (B) a statement of which the party has manifested an adoption or belief in its truth; (C) a statement by a person authorized by the aprty to make a statement concerning the subject; (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.  The rule is broad in application and basically boils down to this – any relevant statement of fact made by a party (or his authorized agent, acting within the scope of the existing agency) is admissible against that party.

  • Pleadings and Other Statements Made by Attorneys:  Included within this rule are not only statements appearing in discovery responses and pleadings from the present case, but also statements appearing in other proceedings as well.  Given the nature of the relationship between attorney and client, it is understandable why courts have little trouble finding that the allegations and statements made by the party’s attorney in motions and pleadings constitute authorized admissions under this rule.  The Texas Supreme Court has construed the rule to apply even to pleadings which have been superceded and not inconsistent with the party’s position at trial.  Stepping beyond written motions and pleadings, federal courts have applied the federal rule (which mirrors the Texas rule) to statements made by attorneys during advocacy in opening statements and closing arguments.  Even pleadings of a party in other causes of action which contain statements inconsistent with that same party’s present position are receivable and admissible as admissions.  Finally, one Texas appellate court has extended these general rules even further, proclaiming that even pleadings which have not been verified and “bear no file mark” may constitute admissions under this rule.
  • Statements from Interpreters:  If a party makes an interpreter his agent to communicate – whether by authorizing the interpreter to translate a statement for him concerning a specific subject, or by designating the interpreter as his agent for purposes of translating a specific statement – the fact that the original statement, as received in English, came through a translator will not turn an otherwise admissible out-of-court admission into objectionable hearsay.  To determine whether a party has adopted an interpreter as his agent, four factors are considered: (1) who supplied the interpreter; (2) whether the interpreter had any motive to mislead or distort; (3) the interpreter’s qualifications and language skills; and (4) whether actions taken subsequent to the translated statement were consistent with the statement as translated.  After taking these factors into account, if the proponent can demonstrate to the satisfaction of the trial court that the party authorized the interpreter to speak for him on a particular occasion or otherwise adopted the interpreter as his agent for purposes of translation, then the out-of-court translation may be properly admitted under TRE 801(e)(2)(C) and (D).  If the court, acting within its discretion, is not so satisfied, then the court should not admit it over a hearsay objection.
  • Admissions in the Context of Social Media:  Admissions by a party-opponent can often be found in social media postings.  If relevant to the issues in the case, statements in the form of texts, tweets, emails, wall posts and blogs are textbook, albeit new-fangled, examples of admissions by a party-opponent.  Some statements may lend themselves to particular hearsay exceptions.  For example, tweets are often present-sense impressions, “OMG” may signal that a text includes an excited utterance, and what is an emoticon if not a statement of then-existing emotional condition?  Each of these fit squarely within the traditional rules regarding hearsay exceptions.  But no hearsay exception need be urged if the witness posting the social media message is a party to the litigation.  Because admissions are not hearsay to begin with, a hearsay objection, standing alone, cannot work to keep these statements away from the jury’s ears (although these statements may be subject to objection on other grounds).

Depositions:

In a civil case, a statement is not considered hearsay simply because it is contained in a deposition.  TRE 801(e)(3) provides that as long as the deposition is one which was taken in the same proceeding, the statement may be admitted into evidence whether or not the witness is available to testify at trial.  This contrasts with federal practice, which requires a showing of witness unavailability before deposition testimony may be used in lieu of live testimony.

  • “Same Proceeding”:  Beware, the Texas Rules of Civil Procedure define the term “same proceeding” to include a proceeding in a different court that involves the same subject matter and the same parties, or their representatives, or successors in interest.  Also, under TRCP 203.6, a deposition is admissible against a party, even if that party was not joined in the lawsuit until after the deposition was taken, if (1) the deposition is admissible under the former testimony exception, or (2) if the party was given a reasonable opportunity to re-depose the witness but failed to do so.
  • Hearsay Within Non-Hearsay:  While the deponent’s testimony is considered non-hearsay, this rule extends only to testimony provided by the deponent which has been made on personal knowledge.  To the extent that a deponent offers testimony regarding statements made by others, these other statements would be subject to a hearsay objection.  This is similar to the concept of hearsay-within-hearsay (except that it is, technically speaking, hearsay-within-non-hearsay).  Hearsay-within-hearsay is a hearsay statement which is contained within another hearsay statement.  When this occurs, both layers of hearsay must independently satisfy an exception to the hearsay rule in order to be admissible into evidence.  A court would commit error if it allowed hearsay statements made by a deponent into evidence simply because the deponent repeated the hearsay statement during the course of a deposition.  Even if non-hearsay, the deposition testimony may be objectionable on other grounds.  TRCP 199.5(e) provides only three objections which can be raised during a deposition: (1) Objection – Leading, (2) Objection – Form, and (3) Objection – Nonresponsive, but don’t forget that any other objections to a deponent’s testimony – relevance, reliability, hearsay-within-hearsay – may be raised afterwards before the trial judge.
  • Non-hearsay vs. Hearsay Exception:  TRE 801(e)(3) defines a witness’s deposition testimony in the same proceeding as non-hearsay.  On the other hand, if taken in a different proceeding, a witness’s deposition testimony is hearsay.  Nevertheless, this deposition testimony may still be admitted into evidence, under the exception provided by TRE 804(b)(1), an exception which will be discussed later.  For now, however, suffice it to say that in order for deposition testimony taken in a different proceeding to be admissible, the deponent must be unavailable for trial.

In the next post, we will begin to take up the twenty-four hearsay exceptions found in TRE 803.

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


Let’s Talk Hearsay

November 3, 2012

HEARSAY, GENERALLY

Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.[1] The Texas Rules of Evidence define the term “matter asserted” to include any matter explicitly asserted, as well as any matter implied by a statement, if the probative value of the statement as offered flows from declarant’s belief as to the matter.[2] (Under the Federal Rules of Evidence the term “matter asserted” is not defined, thus limiting the applicability of the hearsay rule in federal courts to those matters actually asserted, not to those merely implied.)

TRE 802 boldly declares hearsay to be inadmissible unless otherwise permitted by rule or statute.[3] Never has there been a better example of the “exception swallowing the rule” than in the notion that hearsay is inadmissible. Not counting hearsay that is admissible pursuant to statutory authority, four separate hurdles in the Rules of Evidence themselves must be cleared before hearsay evidence will actually be inadmissible.  In order to constitute inadmissible hearsay, the statement must: (1) fall within the Rule 801(a-d) definition of hearsay and not within the Rule 801(e) definition of “non-hearsay”; (2) not fall within 24 enumerated exceptions which apply no matter whether the declarant is “available” or “unavailable”; (3) not fall within the three other enumerated exceptions which apply when the declarant is “unavailable”;[4] and (4) meet resistance in the form of a timely, specific objection.  The fourth hurdle is especially significant, because if no objection is lodged, hearsay evidence is both competent and probative.[5]

When it comes to hearsay, it is never too ambitious an undertaking to look for an exception for every objection. Even hearsay-within-hearsay is admissible, as long as each offered portion fits a rule or exception.[6]  The next series of posts will examine the hearsay exceptions, but before tackling the exceptions, it might be a good idea to take another quick look at what hearsay is, and what it isn’t.

STATEMENTS THAT ARE NOT HEARSAY

Wise practitioners follow the King’s advice to the White Rabbit and “begin at the beginning”[7] when considering the admissibility of evidence within the context of hearsay. Rather than skip directly to the exceptions, it is usually best to begin with the more fundamental question – is this evidence really hearsay?

The answer isn’t always as obvious as it seems. For example, an attorney need not fret over whether a lunatic’s outburst “Repent now – the end is near!” meets the excited utterance exception to the hearsay rule if the statement isn’t offered to prove that, in fact, the world is coming to an end. Not offered for the truth of the matter asserted, the apocalyptic warning simply isn’t hearsay to begin with. On the other hand, just because a witness is available and providing testimony in court doesn’t mean that his own prior out-of-court statement isn’t hearsay.  If offered to prove its truth, a prior statement may very well be barred by hearsay notwithstanding the fact that the witness is available in court and subject to thorough cross-examination regarding it.

HEARSAY BASICS

TRE 801 defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The three terms, “statement,” “declarant,” and “matter asserted” are defined in the rule.

The “declarant” is the person who made the statement. The term “matter asserted” includes any matter explicitly asserted, as well as any matter implied by the statement.  “Statement” means: (1) an oral or written verbal expression, or (2) nonverbal conduct, if it is intended as a substitute for verbal expression. Because hearsay statements encompass both verbal and non-verbal assertions, silent gestures such as pointing, nodding, or headshakes may be subject to challenge if these gestures are used as a substitute for a verbal response such as “over there,” “yes,” and “no.”  However, other non-verbal gestures, such as tears, may not be characterized as hearsay if the declarant did not intend the gesture to be an assertion.

In the hearsay context, an out-of-court “statement” will generally fall within one of six categories, as explained below:

  1. Explicit Verbal Assertion.  Example: The statement – “A section of the bridge collapsed, and I fell into the icy water as I walked across it” used to prove that the bridge collapsed and the declarant fell into the water.  HEARSAY
  2. Implicit Verbal Assertion.  Example: The statement – “Don’t walk on that bridge,” used to prove that the bridge was unsafe. HEARSAY
  3. Explicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – a shake of the head in response to the question, “Is the bridge safe?” used to prove that the bridge was unsafe.  HEARSAY
  4. Implicit Non-Verbal Assertion Substituting for Verbal Assertion.  Example: The gesture – declarant grabs another person’s arm to impede his progress as his approaches the bridge, used to prove that the bridge ahead was unsafe. HEARSAY
  5. Verbal Expression. Example: The question – “Do you have a blanket I could use?” used to prove that the declarant was cold. HEARSAY
  6. Non-Verbal Expression.  Example: The gesture – declarant’s teeth were chattering, used to prove that declarant was cold. NOT HEARSAY

As these six examples demonstrate, “statements” can be assertions or merely expressions, explicit or implicit, verbal or non-verbal.  Only in the latter category, the non-verbal expression, does the statement fall outside the definition of hearsay. The nonverbal expression fails to meet the definition of “statement” because the declarant did not intend it to be an assertion.  (According to the rule, only if the declarant intends for his conduct to be an assertion will nonverbal conduct be considered hearsay.)

THE HEARSAY STATEMENTS THAT AREN’T

Sometimes a statement can look like hearsay and sound like hearsay – heck, it can even meet the very definition of hearsay – and still it isn’t hearsay.  To remember which statements fall within this loophole, one must think like a child.  When is hearsay not hearsay?  Either when someone uses magic words, or when your mother says so, that’s why.

Magic Words:  When the mere making of an out-of-court statement – regardless of its truthfulness – has legal significance, then it is magically transformed into a statement of “operative fact” which is not hearsay.  In this situation, even though the statement itself could provide proof of the truth of the matter asserted therein, it is offered for a more essential purpose. For example, when the words themselves constitute a necessary part of the cause of action or defense, such as when the mere making of the statement forms the basis of a fraud claim or constitutes the offer, acceptance or terms of a contract, then the statement itself is an operative fact and, therefore, not hearsay.

Because The Rule Says So, That’s Why:  Then there are those statements which fit squarely within the definition of hearsay, but nevertheless Rule 801(e) simply declares them not to be. Rule 801(e) identifies five categories of non-hearsay statements: (1) prior inconsistent statements, (2) prior consistent statements offered to rebut a charge of recent fabrication, improper influence or motive, (3) prior statements of identification of a person made after perceiving the person, (4) admissions by a party opponent, and (5) depositions taken in the same proceeding.  (Some of these non-hearsay statements have been discussed in prior posts. Follow the link provided for a more in-depth look at these.)

Keep in mind that when responding to a hearsay objection lodged against these non-hearsay statements, it may be tempting to respond that these statements are exceptions to the hearsay rule.  But, technically, that is not correct.  These statements don’t fall within a hearsay exception – they are simply not hearsay to begin with.

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


[1] Tex. R. Evid. 801(d).

[2] Tex. R. Evid. 801(c).

[3] Tex. R. Evid. 802; see Tex. R. Evid. 801(e), 803, 804.

[4] See, Miranda v. State, 813 S.W.2d 724, 735 (Tex.App.—San Antonio 1991, pet ref’d).

[5] Unobjected to hearsay statements will not be denied their probative value merely because they are hearsay. Tex. R. Evid. 802.

[6] Tex. R. Evid. 805.

[7] Lewis Carroll, Alice’s Adventures in Wonderland.


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.


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.


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 in Testimony

July 24, 2011

It is a generally-understood principle that a statement of fact contained in a motion or pleading may constitute a formal judicial admission which is accepted as true by the court and jury and binds the party making it.  What is less understood are the circumstances under which this rule may be extended to in-court statements and testimony and when these statements may be held to be equally conclusive.

Although formal judicial admissions may look like the quasi-judicial admissions found in Rule 801 of the Texas Rules of Evidence (statements made during judicial proceedings which are exceptions to the hearsay rule and constitute some evidence, but not conclusive evidence), they actually work more like the discovery admissions of Rule 198 of the Texas Rules of Civil Procedure, because they do constitute conclusive evidence.  The main difference is that they aren’t governed by any rule or statute, and we must look to case law for guidance on their application.

The general rule is that any formal declaration against interest made in open court by a party has the potential for being construed as a judicial admission.  Davidson v. State of Texas, 737 S.W.2d 942 (Tex. App. — Amarillo 1987).  At first blush, it may appear that such a broad rule would carry enormous risk that an unsophisticated or imprudent client might just talk himself right out of court.  Fortunately, the law provides certain safeguards to protect those who lack requisite wordsmithing skills to avoid the heartburn associated with a meal of their own words.

First, courts have clarified that this rule should be applied with caution.  United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex. App. — San Antonio 1951).  Second, courts seem to indulge an initial presumption that such statements are quasi-admissions, not true judicial admissions, and, as such, some evidence, but not conclusive of the facts admitted.  Mendoza v. Fidelity & Guaranty Insurance Underwriters, Inc., 606 S.W.2d 6924 (Tex. 1980).  Only when a party’s statement satisfies each prong of the Texas Supreme Court’s five-prong test will a quasi-admission be elevated to the status of a formal judicial admission and bind the party making it:

1.  The declaration relied upon was made during the course of a judicial proceeding.  This appears to include deposition testimony, Adams v. Tri-Continental Leasing Corp., 713 S.W.152 (Tex. App. — Dallas 1986) (deposition testimony in that case held not to be a judicial admission due to conflict in the testimony), but not out-of-court statements made after suit was filed but prior to trial. American Baler Co. v. SRS Sys, Inc., 748 S.W.2d 243 (Tex. App. — Houston [1st Dist.] 1988).

2.  The statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony.  The prong is fairly self-explanatory.  What it seems to suggest is that a party shouldn’t be put in peril of testifying himself out of court on matters that are merely tangential or non-essential.  Therefore, unless the admission goes to the heart of a party’s cause of action or defense, the statement will not bar a party from offering evidence contrary to their own testimony.

3.  The statement is deliberate, clear and unequivocal, and the hypothesis of mere mistake or slip of the tongue has been eliminated.  Most cases focus on this prong.  Unfortunately, they are few in number and most are decades old.  Nevertheless, these cases do provide some good examples of the type of testimony which has been held to be insufficiently “deliberate, clear and unequivocal”:

*          Opinion testimony by a party on matters which a lay person would not be qualified or competent to testify.  Mendoza at 694 (a plaintiff’s opinion about his own physical limitations).

*          Facts which are not peculiarly within the declarant’s own knowledge, but are mere impressions of a transaction or an event as a participant or an observer, especially when there is evidence to the contrary.  Gevinson v. Manhattan Construction Co., 449 S.W.2d 458, 466 (Tex. 1969) (a party’s sworn statement that the other party “foreclosed” on property).

*          Inexactitude in testimony.  Cranetex, Inc. v. Precision Crane & Rigging, 760 S.W.2d 298, 304 (Tex. App. — Texarkana, 1989) (“on or about” a certain date was equivocal as to the date); Bray v. McNeely, 682 S.W.2d 615 (Tex. App. — Houston [1st Dist.] 1984) (“I think so” was ambiguous).

4.  The giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based.  There is little to no case law which addresses the application of this prong.  However, the Supreme Court has clearly articulated the public policy which underlies this rule, to wit:  that it would be unjust to permit a party to recover after he has sworn himself out of court by clear, unequivocal testimony.  Mendozaat 694.

5.  The statement is not also destructive of the opposing party’s theory of recovery.  This final prong simply embraces the general rule that applies to all admissions, i.e., that one party’s admissions cannot be used against other parties. Griffin v. Superior Insurance Co., 338 S.W.2d 415 (Tex. 1960).

Given the potential for a party testifying himself out of court, most attorneys should feel at least some degree of trepidation anytime they see their clients raise their hands to take the oath.  Worrisome as that may be, however, there is one thing that is even worse than having your client talk himself out of court.  And that’s when you do it for him.  In the next post, we’ll take a closer look at that.

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


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