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 award but, through oversight, and even though I marked my fee statements as an exhibit and fully discussed them, I did not offer the exhibit. This omission came to light after the jury was sequestered and had begun deliberating.
My initial reaction was to do nothing because I did not want to put a spotlight on the omission—although I told the client right away and he politely told me it was my call. Feeling confident in my presentation, I “let it ride.” That all changed when the jury sent out a note asking for the fee exhibits of both sides. My confidence faded. Then I remembered from my preparations for my civil trial law board certification exam the right to re-open. So, I promptly moved to re-open. The next morning, after briefing, the trial judge granted the motion. The jury was brought back into the courtroom and I offered the exhibit. It was admitted and the jury was returned to the jury room to resume deliberations. Two hours later, my client had a verdict for over one million in damages and all of my attorney’s fees.
The right to re-open is not unique to the state courts. While there is no rule permitting re-opening in federal court, federal trial and appellate courts have recognized the right and applied standards similar to those used in state courts.
One final tip relates to judicial notice. Rule 201 of both the Texas and Federal Rules of Evidence permits judicial notice to be taken “at any stage of the proceeding.” When you need to introduce essential evidence and you cannot re-open, Rule 201 may provide you a way to bridge the gap of missing evidence. That a judge may take judicial notice of a fact after the evidence is closed may seem surprising, but the argument works. Further, unlike the discretionary decision on a motion to re-open, Rule 201 makes mandates the taking of judicial notice when a court is supplied with the necessary information.
It is almost never too late to fix a mistake.
Leland de la Garza is a partner of Shackelford, Melton & McKinley, LLP. He can be reached at email@example.com.