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Tom McFadden

Frorn: Thornas D. Gipson [tex-red-rider@hotrnail.com]

Senft Wednesday, February 13,2002 4:42 PM
Subject: Got Evidence?

TRICKS AND TRAPS {JSED BY ATTORNEYS, JUDGES'AND

OTHER SPECIES OF'RATS COI{CERNING EVIDENCE
by

VALIANT LIBERTY

The rats have laid a rninefield of tricks and traps for the unwary, uninitiated, and ignorant pro se litigant
rvho dares trespass into the monopolized realm of Texas Courts. By skillful and manipulative use of the
rules of court and judicial interpretations of the rules, the lawyers, with the complicity of the judges, are
able to g6t thek hearsay evidence entered into the record as facts and deprive the ignoranl pro se of his
evidencE. When the other side can get whatever they wanf including hearsay, admined into the record
as eyidence and thepro se ca*not get anything into evidenceo the outcome is going to be obvious. Ylu
cant win without evideace to prove your case. This does not sceTn to be fair or in the interest ofjtuticq
but faimess and justice have nothing to do with the operation of Texas courts. The pro se litigant is
e:cpected and requjred to fotlow the rules. Thepro se gets no slack in Texas courts. lA p"tty lcltng-plq
p'g[t6t ro*pfy *itn substantive law aad procedural rules." In re Caldwell, 1995, 918 SWZd 9, 10. If
on. ;r i$to*oiof the rutes and of how the rats manipulate the rules, the rats will invariably strip yo_u of
your prlperty, steal yoru children, throw you in prison, or all of the above. And the rats will have dsne
nottring{*oig in td eyes of the courts, "You should have hired an attomey," they will say, hoiurwer the
final oitcom* *ight well be the seme if you had- Even if a litigant wins with the aid of an attomey,
often the only diderence in the final out come is that the attomey; not the ldverse party, ends up rvith all
your money and property. In either instance, you will have been impoverished and reduced to a pauper
by the Texas forrn ofjustice. You cafl wiu, but still be the loser"

The following information and authority is found scattered through and is taken from OiCopners Te].{+s
Rules.-.Qivilifials-2001, published by Jones McClure Publishing, Irrc., excepting the comments in
br*k-15 U. Thir ir ttrg besi rule book conceming Texas Rules of Corut that the author has seen. It is
filled rvlth annotations and exptanation of the rules and procedures for Texas courts that can be-found in
no other one place. If you want to play in Texas courts, you should have a copy. It may be orderedty
caling l-800:626-666i. they atso puUtistr a bosk containing forms for pleadings. It is imperative that
the pliadings be properly draffed, oi else you will surely lose. This essay is in no way intended as legaf
advice. If yiu *ant tlgai advice, hire an attomey - if you know of a competent one that you can tnrst and
afford. Otherwise, do your homework'

HOW ATTORNEY'S UNSIVORFI STATEIIIENTS BECOME F'ACTS OF EWDENCE

AND HOIY TO PREVENT IT

The trial court has the discretion to admit or exclude evidence; the appellate court will reverse only on
the abuse of discretion standard, See: National Liab. & Eirq Iqs. Cp. v, Allen, 2000, 15 SW3d 525,5n'
?8, and see: Cify of&ownsJiJl-vJLyara.dg 1995, 89? SW3d ?50, 753. If the trial court sustahs the
 ,^r dls,{t, urt

objection, it rvill not admit the evidence. The party who offered the evidence still has other optious that
it must exercise, or it rvaives the ermr. If the trial eourt ovemrles the objection, it will admit tre
evidence. The party whose objection wa$ overruled still has other options that it nusl exercise, or it
rvaives the error.

An attorney's un$woru statements are not evidence, U.S- Gov. V Marks, L997,946 SIVZd 326. However,
on appeal, a lawyer's ullsworn staternent can be considered evidence uuless the other side objected at tho
trial. Banda:s-Ga{ci.A 1997, 955 SWzd 27A,272. Normally, an attomey's unsl4roilr statement$ must be
under oath to be considered as evidence. Egtrdg tupra- If a lawyer is presenting ftcts to the cowt, the
other party should object and ask the lawyer to be sworn and subjected to cross-examination- Banda,
supra. \Itrhen in doubt, a lawyer should atways object to the fact statements of another lawyer If fte
other party is aware that the lawyer is testifying aud does not object, the admiuishatiou of tbe oath is
waived Fullenwider.v Americag Fuar & Liab. Ins Co. , 1991, 821 Srtrzd 658,662.

lNote thafi Tex. Disciptinary Rule of Professional Conduct 3.03 fiorbids a lawyer from making false
statsment$ of material fact to a nibunal. So, it is presumed that when an attorney is stating facts without
being unde.r oath and not zubject to cross-examination, the statements are the facts, rrnlsgs objection is
made. Any time aa attomey starts stating facfs, it is most likely hearsap rrnless the attorney has first
hand knowledge of the fach, and even theq the attomey must be undm oath asd subject to cross-
examination, unless the other party fails to object. Almost ev€ry time an attorney opens his mouth, the
opposing party should be objecting.I

When tial co'nsel foresees thepossibility the he or she will testify on behalf of a party about a disputed
ftct issue (not attomefs fees), the lawyer should resolve doubts in favor of preseiving the integrity of
tbe evidence a$d decide against continued participatiou as frial counsel. See; T[er{ilow-v-Nqg4glt 1989,
791 SWZd 515, 523 n.10. A testiryiqg lawyer may still engage in out-of-court mattets relating to tbe
casg including prepuing and signing plead.ings, planning strategy, and negotiating settlement. Agderson
Prod's. Inc. v. Koch Oil Co.. 1996, 929 SWzd 416,422. [So, when a lawyer shrts testiffing to hearsay
facu, the pro se should be objecting and dgsanding he take the stand under oath, zubmit to cross-
exalnination and thathe withdraw as trial counsel.]

A pa*y should attempt to securE an explicit nrling adrnitting or eccludiug evidence, that is, a ruling on
the reconC, either in open corfi;. or in writing that specifically shte the court's ruling i.e., that the
objaction is ovemrled or swtained. ff the court does not make au explicit sling but admits pvideirce
- a specific objectio4 the court implicitly ovemrled the objectiou, and the enor is preserved W.plfe
over
v. Wolfe, 1996, 918 SWZd 533, 542. Under TRAP 33.1(a)(2)(A), enclr i^r preserved by m ii'i$licit
ruling.

If the court does not rule, or if no ruling appears in the mcord, ths eror is waived To preserve enor atr
objection must actually be overnrled- If the trial court says that it will rule on the objection later, the
statement is not a ruling and does not preserve error. TEIA v. Mogreo 1955, 284 SW 2d,175,1?8. If the
tial court invites the party to re-urge the objection later, that is not a ruling. Bushell v. D.ean, 1991. 803
uokay," that is not a ruling. WAI-
SW2d 711,712.If the trial court responds to an objection by saying
Mart v. Gou@les, 1997, 954 S14l2d 777,782,. [Comment These tpes of rulingp are calied "equivocal
rulings" and any nrling on arr objectiou to evidence that is not "ovemrled" or "gustained" is m equirrocal
ruling and does not preserve error. There are a thousand ways a judge can equivocate and the "pm se"
must be alert to these equivoeations at all tiroes and insist that the judge make a ruling. For instance, it
rnight be stated, "I"et the record reflect that an objection to the hearsay testimony of Larryer Shfster has
been made, that the court has ueglected or refused to rule on the objection and I have objected to the
court's neglect sr refusal to ru[e.]
 r*5wvv^,

lf the court equivocates or refuses to rule, the parry must object to the court'$ refusal rule and must make
sure its request for a ruling and the refusal to rule appear in the reportet's record or in a biII of
exceptions. See: Goodchild v. Bombardier-RotaxGMELMotorenfabdk, 1998, 979 SWZd 1, 6-7, and
see: 0'Donnelll v. Roger Bullivant, [nc., 1997, 940 SWZd 411, 416, and see; TRAP 33.1{aX2{B). IN
MAKING TTIE FRELIMINARY DECISION CONCERNING TFIE ADMISSIBILITY OF EVIDENCE,
THE TRIAL COURT IS NOT BOUND BY T}IE TEXAS RULES OF EVIDENCE, EXCE.PT THOSE
THAT RELATE TO PRIVILEGES. TRE rule l0a(a), To challenge successfully the denis"l of an
improper exclusion of evidence, the appellant must bring forttr the court reportet's sntire record- S,H. v-
National Cosvenignce Stores, 1996" 936 SW2d 406, 407. [The trial court is allowed a wide field of
discretion conceming the admissibility of evidence and it rvauld seem that the judge can arbitmily
allow or disallow whatever evidence suits his whims. Thus, an attomey rvith no witness and no facts can
stand in front of a judge, sta[e hearsay facts and strip the unwary and ignorant naked. The "license to
practice law," if such a thing exists, truly is a license to steal. The pro se cannct get arrray with stating
hearsay or testifying qrithout being rutder oath because he is not a member of the gilded monopoly and is
not subject to Tex. Disciplinary Rule of Professional Conduct 3.A3, supra. The judge, in his discretionn
wilt politely listen thepro se's hearsay and ignore it, instruct the juryto disregard, and threateu conterypt
if he duesnt shut up.J

II.

AOW TIIE COURT PREVENTS YOU FROM AI}MITTING YOUR EVIIIENCE

A}ID WT{AT TO DO ABOUT IT

[f the adverse attomey objects to a witness, document, or other evidence and the eourt zustains the
objection, the pro se will have no evidence and thepro sa will lose if he doesn't know how to preserve
the evidence for appeal. Remember, as stated above the judge has bmad discretion to adrnit or disallow
evidence and the judge and adverse lawyer are members of the same exclusive monopoly and they dont
rvant non-members participating in it If they can" the rats rvill vigorously puuish any non-member for
Eespassing into their exclusive domain.]

A party should preserve excluded evidence in an offer of proof. Before a parly is entitled to make an
offer of proof, it must offer the evidence at trial. When an objection is lodgd the party offering the
evidense should specif the purpose for which the evidence is offerrd an the reasotr it is admissible.
Before a party is entitled to make an offer of proot, the court must make a diug that the evidflrce is
inadmissible. Once the court nrles that the evidence is inaduissable, the party must make afoffer of
proof. The offer must show the substance of the evidence that was offered and excluded" [Citations
omitted.l

To preserve oral testimony by a rvitness, the party olfering it must make an offer of proof in the presencs
of the judge, the court reporter, and the opposing corrngel, but outside the prcsence of the jury. The offer
of proof is conducted out of the hearing of the jury to prevent the jury frou. hearing inadmissible
evidence. When naking an offer of proo{ the lawyer [orpro sej may make a concise statemmt of what
testimony wauld be elicited from the witness. The hial court may add a cor:lnent to the offer to show
the character of the evidence, the form in which it was offered, the objection" and the ruling. [Citations
omitted.J

To preserve documentary evidence, the party should, at the tirne the document is rejectd say, "I make
an offer of proof of this document an ask th*t it be filed with the record." An offer of prcof to
preserve an excluded docurnent may be make in the presence of the jury because the jury is not
 .rngc + ur T

prejudiced by evidence in the exctuded document that it cannot see. The court reporter should mark the
document as an offer of proof and identify it with an exhibit number. The document will be filEd wittr
the corut clerk so that it will be included with the exhibits in the reporter's record. [Citations onritted.]

Even when a documeut is already on file with the court - for exarnple, depositions or intenogatories - if
the court refirses to permit it to be inhoduced into evidence, the party should submit it as an offer of
pmof and get the court to rule on the offer. [Citation omined.] ffhis surely includes those affidavits that
many "palriot" pru se's staple onto motions and other pleadinp in the mistakErr belief that by just by
virtue of being filed into the record such affidavits are evidence. It shoilld be remembered that afEdavits,
like all other evidence, must be testified to under oath by a competent winess in ordEr to become
admissibte evidenee - unless of course, the adverse attorney runs his mouth about oue of his affidavits
and there is no objection.]

To preserve tape-rworded evidence nrled inadmissible by the trial court, the parfy shonld, at the time the
tape is rejectd, say, 'rI make aud offer of proof of this tape and ask that it be frted rvith the
record." As part of the offer, the party must describe the excluded evidence on the tape and specify the
purpose of the svidence. If a transcript of the tape is availablg the party should fiie it as part of ftE offer;
if not, the prty should ask pennissioa to fiIe a ranscript as part of the offer of proof as soon as it is
made. [Citations omitted.]

Error is preserved by the court's ecplicit ruling that the evidtnce in the offer of ptoof is not admiseible
druing trial. Horrever, und€r TRAP 33, enor can also be presemed if the trial court irnplicitty overnrles
the offer, or refuses to rule on the offer and the complaining party objects to tbe refirsal. [Citations
omit{edl

[Another way to preseffe excluded evidence is with a Bill of Exceptions. This is an antiquatcd
pro*edrne prmerved in Texas law that is so strict and difficult as to be impractible, but possible. In ssme
cases, sftere the evidence was not timely prese,r:ved" a BiII of Exceptions may be the only reindy. It Trill
not be discussed here, but the reader should be aware of the existeoce of &is rerredy. The Federat Rules
have no equivalent pocedure-]

[When excluded evidence if propedy preserved the judge can aud may rcverse himself If the evidence
is relevant and substantive, the probability of a reversal by the courf is relatively high because the judge
knows he wilt be reversed on appeal and judges dor/t like their decision reversed on appeal. In fact
judges don't like their decisions appealed even if they are upheld. Whoever has the preponderance of
-evideace
the in a civil case wi[ $riu. How cm you win if you have been prevented ftom gettinglflri
evidence into the record? How can you win if Joe Shyster gets his hersay testimony into the record
without the risk of a cross-examinatiou? Evideuce is everything. If the record does not contain yorr
evidence, you have nothing aud you will lose. On the other hand, if thepro se can keep tbe adverse
attomey's bullshit hearsty out ofthe record, he just might deprive the adversary of evidence antl win!]

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