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


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.


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. 


Use of Prior Testimony

November 6, 2011

When it comes to admissibility, all prior testimony is not created equal. In Texas, different rules apply, depending on how it is offered and under what circumstances the testimony was originally given.  

Although it is important to understand how prior testimony may be used generally, the rules regarding its admissibility become particularly important when a case is re-tried after remand or order of new trial, or if an attorney wants to offer testimony at trial that was previously given at a pre-trial evidentiary hearing.  Before an attorney decides to rely on prior testimony in lieu of calling live witnesses, several questions must be asked.  

What type of testimony is it?  There are three types of prior testimony:  (1) affidavits, (2) depositions, and (3) prior testimony at hearing or trial. 

Affidavits.  Affidavits are generally inadmissible at trial to prove the matter asserted therein unless they fall under a hearsay exception in the rules or statutes (such as §18.001 affidavits).  However, even when an affidavit doesn’t fall within a hearsay exception, it will still be given full probative value if it is admitted into evidence without objection.  (This rule is not limited to affidavit testimony, and applies to all hearsay which is admitted into evidence without objection.)  For that reason, it can’t hurt to at least make the offer.  And certainly the parties could stipulate to the admissibility of affidavit testimony in order to streamline the presentation of evidence at trial (or for any other reason).   Furthermore, certain portions of an affidavit could possibly be admissible under rules regarding admissions and statements against interest.

Depositions.  For deposition testimony, the attorney may need to ask additional questions:   Was the deposition given in the same case or a different case?  Is the witness a party? 

Was the deposition testimony given in the same or a different proceeding?  Rule 801(c)(3) of the Texas Rules of Evidence clearly provides that a deposition taken in the same proceeding in which it is offered is not considered hearsay.  Therefore, assuming a deposition is not subject to exclusion under some other rule (e.g., a discovery rule), a deposition taken in the same proceeding is admissible into evidence.  The substance of the deposition testimony, like any other evidence, however, must also meet the requirements for admissibility under all other evidentiary rules as well. 

If the deposition testimony was taken in a different case, then its admissibility hinges upon the question of whether the witness is a party.

Is the witness a party?  If the deposition witness is a party, then testimony given in a different case may be admissible under TRE 801(e)(2), which defines statements by party opponents as “non-hearsay.”  To be admissible under 801(e)(2), the statement need not be against interest, but it must be made by a party opponent.  (A party’s own deposition testimony in a different proceeding may not be admitted into evidence unless it is admissible under some other rule.) 

If the witness is a non-party, then deposition testimony taken in a different proceeding will be admissible only if the deponent is unavailable to testify.  The requirement for “unavailability” is a hurdle for admissibility in some circumstances, but it is not always insurmountable.  First of all, the definition of “unavailable” includes more than death, illness or disappearance.  For example, a witness’s purported “lack of memory” as to a particular matter is sufficient to deem that witness “unavailable” under TRE 804(b)(1), rendering prior deposition testimony on that particular point which was given in another proceeding admissible.  Other situations which will confer “unavailable” status to a witness include:  the claiming of a privilege, refusal to testify (after being ordered to do so by the trial court) and mental infirmity.

Prior Testimony.  Finally, for prior testimony given in the same or other proceedings, the first thing that needs to be ascertained is whether the witness is a party or a non-party?  If the prior testimony comes from a party, then the analysis further examines whether the prior testimony offered was elicited from a party opponent or the party who is offering the testimony into evidence. 

A party opponent’s prior testimony will be treated the same as if it were a party opponent’s deposition in a different proceeding.  Because TRE 801(e)(2) defines statements by party opponents as “non-hearsay,” the hearsay bar would not preclude its admissibility.  However, a party’s own prior testimony is generally inadmissible.  In order for it to come into evidence, the testimony would have to be admissible under some other rule, e.g., as a prior consistent statement offered to rebut a charge of recent fabrication, under TRE 801(e)(b).  

Prior testimony of a non-party is no different than a non-party’s deposition testimony from a different proceeding.  Before prior testimony of a non-party will be admissible, whether same or different proceeding, the proponent must show that the non-party witness is “unavailable” within the meaning of TRE 804(b)(1) and discussed above.

Even if none of the rules or principles above provide an avenue for admissibility of the prior testimony you want to offer, don’t give up.  Even if the prior testimony is not generally admissible, certain specific portions of the testimony may still be admissible under other theories.  For example, if it’s a statement against interest, it may be admissible as an exception to the hearsay bar, whether made by affidavit, deposition or testimony, by a party or a non-party, in the same or different proceeding.  So keep trying. 

The Rolling Stones said it best:  “You can’t always get what you want, but if you try sometimes, you just might find you get what you need.”

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


Witness Competency

October 22, 2011

Long before Robinson and Daubert subjected expert witnesses to a judicial pre-screening process, Texas judges were acting as gate-keepers as to fact witnesses on the basis of competency. In fact, legal history inTexas is replete with many grounds to exclude witnesses due to incompetency, most of which have long-since been abandoned or repealed, such as religion, race and criminal convictions. Two exclusionary grounds remain, however, in the current rules of evidence – witnesses who are mentally incompetent and children.

According to Rule 601(a) of the Texas Rules of Evidence, the following witnesses shall be incompetent to testify in any proceeding: (1) persons “in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify,” and (2) children “who appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.”   

The Burden of Proof:  The mandatory prohibitory language of the rule would suggest that before a party may offer a child or mentally challenged adult as a witness, testimonial competency must first be proven.  This approach would be consistent with the burden of proof required in expert witness gate-keeping, i.e., that the burden lies with the party proffering the witness. However, with regard to witness competency, the rule has been applied in quite the opposite manner. With one exception, the burden of proof belongs to the objecting party, not the offering party, to prove incompetency to testify at trial. The only exception occurs when the witness has previously been declared insane or incompetent. In that situation, a presumption against competency exists, which may be rebutted with evidence of competency (but the mere fact that a witness has previously been declared insane or incompetent will not automatically render the witness’ testimony incompetent).

The Standard:  The three elements to consider when determining testimonial competency are:  (1) the competence of the witness to observe intelligently the events in question at the time of the occurrence; (2) the capacity of the witness to recollect the events, and (3) the capacity of the witness to narrate the facts.  With regard to the third element, a witness must be able: (1) to understand the questions that are asked, (2) to frame intelligent answers to those questions, and (3) to understand the moral responsibility to tell the truth. 

Notably missing from this analysis is any requirement that the testimony be consistent, and it is important to keep that in mind.  Inconsistencies in testimony will not render a witness incompetent.  For example, in Rodriguez v. State, even though the witness, an Alzheimer’s patient, couldn’t remember her own age, the day of the week she was testifying, or that she had been attacked with a knife instead of a pistol, she was still held competent to testify because in other ways her testimony provided a “lucid and purposeful” account of the events surrounding the robbery and assault. Furthermore, all of the witness’s testimony was independently corroborated by either circumstantial or direct evidence. Most frequently, this issue arises in the context of young child witnesses whose testimony can often be inconsistent and confusing. The fact that a child’s testimony is confusing and inconsistent may make it less credible, but it does not render the testimony incompetent. 

Child witnesses are also frequently scrutinized for their ability to understand the moral responsibility to tell the truth.  Because there is no absolute cut-off as to the age in which a child is deemed incompetent to testify as a matter of law, many child witnesses may be too young to articulate or even understand the meaning of a legal oath. Nevertheless, a child may demonstrate competency if he or she has an understanding that it is wrong to lie and is impressed with the need to be truthful. (In those circumstances, a child witness would not be required to take a formal oath prior to testifying.)

Applicability of the Rule:  While at first blush, TRE 601(a) may seem to apply only to the mentally disabled and youngsters, the rule actually has a broad range of applicability, including the physically disabled, the elderly and those suffering from chemical dependency. For example, the capacity of a witness to narrate the facts, including the ability to frame “intelligent answers” to questions, may form the basis of challenge to the testimony of a stroke victim. In one such case, the testimony from the witness who seemingly understood the questions but could respond only with the expression “uh-huh,” which, according to his caretaker/interpreter, meant both “yes” and “no,” depending upon other gestures used at the time he uttered the phrase, was excluded on competency grounds. 

While the capacity to “recollect events” could form the basis of a competency challenge to an elderly witness, infirm memory is not an absolute bar.  For example, one court has held an 80-year old witness with memory deficits competent to testify even though he could not recall the current month or any current events in the news.  In that case, the court held that the witness’s failure to recall certain events should not preclude him from testifying about matters that he could recall.

Finally, while alcoholism or drug dependency does not automatically render a witness incompetent, intoxication may give rise to two grounds for a competency challenge:  (1) a challenge based upon the witness’s inability to observe, recollect or narrate the events at the time of the occurrence due to the witness’s intoxication at the time the events occurred, or (2) a challenge based upon the witness’s inability to observe, recollect or narrate the events in court due to the witness’s intoxication at the time the testimony is offered. Either situation would provide sufficient grounds to exclude testimony on the basis of incompetency.

Texas has come a long way from the days when a witness would be considered legally incompetent based on his or her race, gender, ethnicity or religious beliefs.  Nevertheless, modern day concerns, such as the aging population (and medical issues associated therewith) and society’s struggle with problems of chemical dependency and addiction, raise new questions regarding witness competency at trial.

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


The Formal Bill of Exception

October 11, 2011

Previously, we took a look at the offer of proof, which is also known as the “informal” bill of exception. The informal bill is a tool of error preservation, and is used to inform the appellate court of the substance of evidence which the trial court refused.

In addition to an informal bill of exception, the Texas rules provide for a formal bill of exception as well. Although they share a similar name, generally one cannot substitute for another. Informal and formal bills are rarely interchangeable because they are intended for different situations and designed for different purposes.

One characteristic that both formal and informal bills share is that they both serve to supplement the record for appellate purposes and preserve error for appellate review. However, they differ in what they actually prove. An informal bill of exception provides proof of the substance of something that was not permitted into evidence at trial. A formal bill of exception, however, provides proof of something that occurred at trial but isn’t reflected in the record. For example, if a judge made a ruling during the course of a trial which wasn’t included in the court reporter’s record, then the attorney complaining of the ruling could seek a formal bill in an attempt to get the ruling included in the record on appeal.

A second difference between an informal bill and a formal bill is one of timing. Informal bills must be made before the jury is charged, or any error in excluding evidence is waived. A formal bill isn’t due for filing until 30 days after the Notice of Appeal has been filed.

Another, perhaps technical, difference between an informal bill and a formal bill is where they appear in the record. Informal bills will be included in the reporter’s record on appeal, whereas formal bills will be found in the clerk’s record.

The Judge’s Bill: While there are two types of formal bills of exception, for all practical purposes nowadays there is really only one: the “judge’s bill.”  Rule 33.2 of the Texas Rules of Appellate Procedure  provides that when a party wants to complain about a matter which does not appear in the official record of the proceedings, the party should present to the trial judge a formal bill of exception. While there are no magic words which should be used in a formal bill, the rules do require that the bill be sufficiently specific to make the trial court aware of which of the trial court’s actions or rulings is being complained of. Once presented with the bill, what the judge chooses to do with it depends upon the posture of the parties and, in some instances, the discretion of the judge.

If both sides agree to the contents of the formal bill, then the court has no discretion but to sign the bill and file it with the clerk. (According to the rule, this is mandatory even if the judge disagrees with what the parties agree to.) Absent agreement, however, on the bill’s contents, then, after notice and hearing on the matter, the court will be left with three options:

  1. If the judge agrees with the bill, then the judge will sign it and file it with the clerk. If the judge disagrees with the bill, then the judge may suggest corrections to it that, in the court’s opinion, would make it accurate. If the moving party accepts and makes the suggested corrections, then the judge will sign the corrected version and file it with the clerk. (Interestingly enough, if a formal bill of exception conflicts with a reporter’s record, the bill, not the reporter’s record, controls.)
  2. If the moving party disagrees with the suggested corrections, then the judge will return the bill marked “refused” and will instead file a judge’s bill (usually prepared by the other side) which, in the court’s opinion, accurately reflects what occurred.

The Bystander’s Bill: The second type of formal bill, the “bystander’s bill,” is filed by a party who is dissatisfied with the judge’s bill. Today, the bystander’s bill has become a rarity, at least in civil trials. This is because a bystander’s bill must be supported by the affidavit of three disinterested witnesses who were present in the courtroom and witnessed the event which does not appear in the record. These three disinterested bystanders must also attest to the correctness of the bill which the judge refused. (The refused bill must be filed with the clerk as well.)

The requirement that these bystanders be disinterested disqualifies most everyone who is present in the courtroom during the trial of most civil cases today. (Attorneys, parties, and paralegals are all considered “interested.”) The rule permitting the bystander’s bill is still there — TRAP 33.2(c)(3) — but, alas, bystanders are not. With the advent of television and the internet, the bystander’s bill has gone the way of dinnertime conversation, letter-writing and book clubs.

For better or for worse, gone are the days when the courthouse was the center of entertainment for the community. Instead, the community tunes into the more interesting drama of Judge Judy, the People’s Court, and the courtrooms of prime-time T.V. In the event that a courtroom does manage to attract a disinterested audience of three or more — perhaps during a T.V. blackout, or in a criminal trial, which will sometimes manage to muster a decent-sized live audience despite today’s competitive entertainment market — a bystander’s bill will be the only recourse in challenging the accuracy of the judge’s bill. When this happens — when the court of appeals is presented with competing bystander’s bills and judge’s bills — the appellate court will sit as a fact-finder to determine which bill correctly reflects what actually occurred in the courtroom.

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


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