Dallas Bar Association
HEADNOTES May 2013 Volume 38 Number 5
Focus Appellate Law/Trial Skills
Judicial Investitures at Belo
Downton Att’y Hits the Greer Garson Theatre in June by Kandice Bridges
The Judicial Investitures for Judge Phyllis Lister Brown, of the 162nd Civil District Court, (being sworn in by Hon. Sam Lindsay), Justice David Lewis (left) and Justice David Evans (right), both of the Fifth District Court of Appeals, shown with DBA President Sally Crawford, were held in April at the Belo Mansion.
Focus
Appellate Law/Trial Skills
It is Almost Never too Late to Re-Open the Evidence! By Leland de la Garza
An English poet wrote: “It is never too late to be what you might have been.” This applies to trials. Trial can be daunting. With so many things to worry about, it is not surprising that mistakes are made and evidence is not introduced. But rather than accept a possibly bad trial result and a very difficult discussion with the client, fix your mistake. It is almost never too late to introduce missing evidence. T.R.C.P. Rule 270 states: “when it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” The rule permits introduction of evidence after the evidence is closed. And, in fact, the Texas Supreme Court in Texas Employers’ Insurance Ass’n v. Elder suggested that the latest such evidence could be admitted would be when the case is affirmed by an appellate court. Whether to allow re-opening of the evidence is discretionary. Texas appellate courts have stated that, in the interest of justice, the trial court should
liberally exercise its discretion in the interest of permitting both sides to fully develop the case. Texas appellate courts have held that the trial court should consider the following factors in exercising its discretion to re-open: (a) whether the party exercised diligence in obtaining the evidence, (b) the decisiveness of the evidence, (c) whether reception of the evidence will cause undue delay, and (d) whether granting the motion will cause an injustice. Most appellate courts reviewing a trial court’s decision permitting re-opening have found no abuse of discretion. Appellate courts are less likely to reverse a denial of a request to re-open when the proponent fails to show due diligence in obtaining the evidence. One court wrote that “the interests of justice do not warrant a second bite at the apple” when the proponent of the evidence failed to show diligence in coming forward with the evidence. For example, in a jury trial, I proved up attorney’s fees by narrative testimony. My testimony provided all the necessary proof for an attorney’s fees
Kandice Bridges is an attorney turned freelance writer and is Chair of the Marketing Committee of the Bar None Production Company. She can be reached at kandicebridges@sbcglobal.net.
continued on Page 6
Inside 7
Join the cast and crew of Bar None June 12-15 as they present Downton Att’y. This is the 28th year for the Bar None variety show and it promises to be the best show yet. Watch Dallas area lawyers and judges sing, dance and make you laugh so hard your sides hurt. As much as the cast and crew love performing and making people laugh, their real motivation is to support the Sarah T. Hughes Diversity Scholarship program. The scholarship program was established in honor of U.S. District Judge Sarah T. Hughes, a former trustee of the Dallas Bar Foundation, who devoted herself to improving the rights of women and minorities. The Hughes Scholarship at the Dedman School of Law at SMU provides tuition and fees for deserving minority students each year. The Dallas Bar Foundation takes its responsibility for finding deserving recipients seriously. If you have ever met a Hughes Scholar, you know how impressive these students are. Support them
by coming to Bar None. Thousands of volunteer hours go into putting on such a large production each year. The hours come from lawyers all over the metroplex including 28-year veteran Director Martha Hardwick Hofmeister and Producer Tom Mighell, as well as the choreographers, script writers, committee members, actors and numerous behind-the-scenes staff. All of these Bar Noners share a passion for making a difference in the lives of the Scholars, our legal community and, for a few hours, the audience members. Show your support for the Dallas legal community and the Hughes Scholars by heading to the Greer Garson Theatre on the SMU Campus June 12-15. To purchase tickets, visit www.barnoneshow.com. Or contact Elizabeth Philipp at (214) 220-7487 or ephilipp@dallasbar. org for sponsorship and ticket HN information.
Turning Pre-Trial Motions Into First Strike Weapons
11 The Jury’s Verdict Is In! Now What? 13 To Appeal or Not To Appeal: That Is the Ethical Question
HELP WEST, TEXAS! Give through the Red Cross. To send a $10 donation to the Red Cross text ‘REDCROSS’ to 90999, log on to www.redcross.org or call 1-800-REDCROSS.
Donate blood through Carter Blood Care. Log on to www.carterbloodcare.org to find a donation location near you.
Thank you for your generosity.