Recap: Lessons Learned from Evidence Jeopardy

In case you missed it, DAYL’s CLE Committee recently sponsored an interactive CLE called “Evidence Jeopardy.” Former judge Marilea Lewis with Godwin Lewis and Hunter Lewis with Kinser & Bates, LLP quizzed attendees on the application of the Texas Rules of Evidence to common legal situations. Here are a few practical lessons from the presentation:

1. Rule 902(10)(a) of the Texas Rules of Civil Procedure requires business records and the accompanying affidavit to be filed with the Court 14 days prior to trial. There is currently a proposal to change the Rule to require the affidavit and the business records be served on opposing counsel at least 30 days prior to trial. If this potential change causes you concern, the Texas Supreme Court is accepting comments on the proposed change for the next two months. Comments may be submitted to Rules Attorney Martha Newton.
2. A party may authenticate an email communication by presenting evidence of its distinctive characteristics, taken in conjunction with the circumstances. For more about this process, read the Massimo v. State opinion, 144 S.W.3d 210 (Tex. App.—Fort Worth 2004, no pet.).
3. A computer printout of an electronically-stored document is an “original” under Rule 1001(c) (the “Best Evidence Rule”), which defines “original” to include any printout of data stored in a computer.
4. If a judge declines to admit your proffered evidence, you should be prepared to make an offer of proof, which tells the appellate court the contents of the excluded evidence and the purpose for which you are offering it. The judge must be present in the courtroom when you are making your offer of proof. But this alone does not preserve error regarding the exclusion of the evidence. Don’t forget to re-offer the evidence at the conclusion of your proffer and obtain a ruling from the judge!
5. Conjectural or conclusory expert testimony, even when admitted without objection, cannot support a judgment on appeal. The evidence is simply treated as irrelevant or incompetent under Coastal Transport Company v. Crown Central Petroleum Corp., 136 S.W.3d 227 (Tex. 2004).