by Leland C. de la Garza and Lily H. Shanks
Search Westlaw for Texas cases using “res inter alios acta” and you will quickly notice that the most recent case law incorporating the antiquated Latin phrase is more than 10 years old. However, for those not into or familiar with fancy Latin phrases, the translation and rationale of this doctrine underpin rules of evidence still virile and vital in litigation today.
Res inter alios acta alteri nocere non debet means “a transaction between others does not prejudice one who was not a party to it.” Or, things done between strangers must not cause an injury to people who are not parties to such acts. The general rule, also known as the doctrine of “res inter alios acta,” is that transactions of a party to a lawsuit with persons not parties to the same suit are inadmissible because they are irrelevant, immaterial, and highly prejudicial. The Courts of Appeals continued to cite the common law rule well after the adoption of the Rules of Evidence in 1983, and the logic underlying this dictum is clearly alive and well in the form of Texas Rules of Evidence 401 through 406, which provide that a party’s prior bad acts are generally inadmissible unless they are being introduced for limited purposes, such as to show intent or habit.
Awareness of the exceptions to res inter alios acta and the courts’ analyses under the exceptions will guide practitioners in their objections and arguments against the admission of evidence of previous bad acts.
Where a party’s intent is material to a plaintiff’s claims, courts may admit evidence of prior acts or transactions with other persons, if those individuals are so connected with the transaction at issue that they may all be parts of a system, scheme, or plan. For example, where an insurer’s intent in denying a claim is a central issue, the insurer’s previous denial of claims without adequate investigation might be admissible. A court would focus on the timing of the denial of claims—whether they were contemporaneous or around the same time—as well as whether the insurer’s reason for rejecting the claims was similar. The closer in time and the more similar the bases for denial—for example, failure to disclose past medical history or preexisting conditions—may make the other claims so connected with the transaction at issue that they could all be part of a system, scheme or design of the insurer.
Likewise, allegations regarding an employer’s policy of firing employees who filed workers’ compensation claims might also be proper circumstantial evidence of causation and, therefore, beyond the doctrine of res inter alios acta. A practitioner seeking to prevent the admission of previous acts should focus on distinguishing the act at issue based on number of occurrences, timing of the acts, and similarity of underlying claims.
Similarly, Rule 406 provides that evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. As under the intent exception, courts should strenuously test the resemblance of the act in question against prior acts before admitting the prior acts. For testimony of the routine practice of an organization to be admissible, it must show a regular response to a repeated specific situation. In other words, the response must be the same specific one to the same set of facts. One to two examples is insufficient to demonstrate a habit.
In the context of a driver’s history of previous car accidents, for example, three low-speed accidents during a six-year period would be properly excluded as not rising to the level of a habit under Rule 406. Contrast this rationale for excluding a history of accidents with a premises liability case in which evidence of similar accidents could be admissible as relevant to the premises owner’s knowledge of the condition causing the accident.
Call it what you will, and gauge your audience before citing the doctrine in Latin, but there are still judges who will sustain objections for “res inter alios acta,” likely surprising opposing counsel in the process. Regardless of whether you say it in Latin or by Rule number, a good working knowledge of res inter alios acta and the Rules is necessary to keep out that confounding evidence of other bad acts.