In a recent Texas auto accident decision, a woman appealed from a take nothing judgment after a jury trial in her personal injury lawsuit against a defendant, claiming injuries when the defendant’s vehicle hit hers from behind. The jury decided that both parties had been negligent. They believed that the plaintiff had caused 51% of the accident, and the defendant had caused 49%. Accordingly, a take nothing judgment was rendered. She appealed.
The plaintiff claimed that the lower court had made a mistake in not admitting the defendant’s deposition testimony. She argued that if a party doesn’t appear at trial but appears to be deposed, the deposition transcript must be admitted.
The appellate court explained that whether evidence is admitted is within the lower court’s discretion. If a party introduces some recorded testimony, the other party asks questions. An adverse party can ask about any other subject. The adverse party is allowed to bring forward any other recording that is needed to explain or allow the jury to understand the section that the opponent introduced. The purpose of the rule is to protect against a distortion that could be created if part of the evidence is introduced.
If it’s necessary for fairness, the court is allowed to permit other evidence under Texas Rule of Civil Procedure 270. The court has the discretion to permit a party to reopen his case even if he’s concluded it, as long as he can show his diligence. The moving party has to show diligence in making this request. When deciding whether to grant a motion to reopen, the lower court is also supposed to consider whether the evidence is decisive and whether receiving that evidence would cause too much of a delay.
In this case, the defendant didn’t come to trial. He also wasn’t called to testify by deposition or live. However, the defense attorney read some of his deposition testimony, in which he described his version of what happened. The judge asked the plaintiff’s attorney for her cross-examination of the deposition, but the attorney declined. The defendant then rested his case, and closing statements were given.
The next morning was when the plaintiff’s attorney raised the issue of admitting certain exhibits. He tried to offer all of the depositions and argued that the defendant’s deposition had been read in part, such that it should be in the record for optimal completeness and appeal purposes. The attorney was surprised that the defendant didn’t come to trial. The defense attorney said the deposition transcript included inadmissible statements. The plaintiff wanted the court to review the objections within the transcript and noted that the transcripts were part of the exhibits list.
Six months before trial, the defendant’s attorney designated parts of the deposition transcripts he planned to use. Once the trial began, the plaintiff’s attorney knew the defendant wasn’t going to testify at trial, and he chose not to cross-examine by using deposition excerpts.
The appellate court found that the plaintiff’s inability to show she couldn’t have tried to present the testimony herself showed a lack of diligence. On appeal, she wanted to admit the whole transcript, rather than just specified excerpts. The appellate court explained that under Rule 107, whoever was trying to complete the matter had to show what was being offered was on the same subject and was necessary to fully explain the matter. She didn’t meet the requirements to show additional evidence was needed for due administration of justice or to admit the deposition. The lower court’s judgment was affirmed.
If you are injured by someone else in a car accident, the experienced San Antonio attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.
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