Sunday, January 24, 2016

"The Rule" and other Lessons from Texas

There is a rule in Florida. In fact, in litigation in Florida there are more rules than you can imagine. It seems like they are all around us and forever changing. It is a challenge to keep up with the rules, of procedure, of evidence, of judicial administration. 

But in the hearing room, we often hear reference to "The Rule;" as in "Judge, we would like to invoke The Rule." It sounds so imposing. Certainly it sounds so to unrepresented parties. I am sometimes surprised at how many attorneys, having thus invoked The Rule, cannot cite "The Rule" or provide any details regarding it. 

"The Rule" is found in the Florida Evidence Code, Fla. Stat. 90.616, which says

(1)At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2). (Emphasis added).

This is "The Rule" that says witnesses can be made to wait their turn outside the hearing room, and not listen to the testimony of other witnesses. There are exceptions to "The Rule." It does not apply to a party, a "party representative" which is a the person designated to embody a corporate party for the purpose of the trial, or "a person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause." In Florida, there is a fourth exception in criminal cases, but that is of little interest in this setting. 

"The Rule" sometimes causes some consternation when a party has no attorney. The attorney across the table invokes "The Rule" and the judge may have to pause and explain the situation to the unrepresented party. 

Recently, a case in Texas reminded me of "The Rule." WorkCompCentral reported that in Quintanilla v. Baxter Painting, No. 05-14-00685-CV, 12/01/2015, the judge in a personal injury action denied the plaintiff's motion to sequester the other witnesses in the case, denied his request to invoke "The Rule."

The facts support that the plaintiff did make this request, and the judge did deny it. When the plaintiff sought appellate review, after losing at trial, the appellate court acknowledged the request in Texas is "is governed by Texas Rule of Evidence 614 and Texas Rule of Civil Procedure 267." Thereby the "witnesses shall be removed from the courtroom to some place where they cannot hear the testimony delivered by any other witness, upon the request of any party." (Emphasis added). This is similar to the Florida Code quoted above. 

The Texas appellate court explained that this "sequestration is mandatory upon the request of a party." Unequivocally, the trial judge was wrong in declining to enforce "The Rule." This is the kind of thing an appellant (the one seeking relief from the appellate court) loves to hear. Their point in filing their appeal is that they believe the trial judge is wrong; they are glad to have the appellate court agree with them. 

The second object lesson of Quintanilla v. Baxter Painting is a bit more subtle. As glad as the Texas plaintiff/appellant was to have the court agree with this error argument, he was likely equally disappointed in the court's next conclusion. The court concluded that although the denial of "The Rule" was wrong, the court "said this error was harmless since Quintanilla had no admissible evidence to show how one of the defense witnesses had allegedly changed his testimony from that given earlier in a deposition to be more beneficial to the defense."

In other words, the plaintiff/appellant had to do more than show that the trial judge was wrong, the plaintiff/appellant had to have evidence to show that this error resulted in actual harm or damage to his case. This is an important reminder, on appeal error is one key and an actual harm is the other. 

The third object lesson is in making sure the appeal that is filed addresses all of the issues for the court. The plaintiff/appellant in Quintanilla v. Baxter Painting wanted to put "admissible evidence" in the record for the appellate court to consider. The plaintiff/appellant asked the trial court to "include the witness' deposition testimony in the appellate record" so that the appellate court could see what, if any, changes occurred in the testimony, that is show the harm from the error. The trial court denied that request regarding the deposition testimony. 

Although the plaintiff/appellant appealed the denial of "The Rule," the plaintiff/appellant did not appeal the trial judge's denial of that motion to include the deposition transcript in the record. The appellate court therefore did not see the deposition testimony and did not consider whether the trial court was right or wrong to exclude the depositions. The appellate court only considered whether the plaintiff/appellant had proven harm, and finding no evidence in the record, concluded he had not. 

American appellate courts are concerned with error. They are neither interested in retrial before them, nor equipped, to retry a case. Trial of the case is for the trial court. The appellate court looks at that trial on a written record and discerns whether error has been demonstrated, as it was here. Then it looks at whether such error resulted in harm. It is the job of the appellant to both point out the error and prove the harm.

The case is a great reminder of "The Rule" and just as useful for reminding ourselves about the purpose and process of appellate courts. 

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