33rd / 424th District Courts

This is not a ruling, but a list of areas where I see counsel making errors on a consistent basis. Hope it helps someone in thinking about these things.

PREDICATES often done erroneously:
Use of writing to refresh: See TRE Rule 612. The writing is only useable to refresh memory when the witness cannot otherwise accurately recall a matter. Therefore, you must first establish the necessity of that reference, e.g. "Mr. Smith, are you able to accurately recall the points made on the occasion in question?" [Wit answers "no"]. "Is there a document that would help you to refresh your memory?" That sets it up but it's frequently not done. And DONT hand it to the witness until the predicate is laid.
Impeaching Witness w/ Prior Statement: See TRE Rule 613. There is a precise order to doing this correctly. In summary, you must:
1 -- Establish that a prior inconsistent statement exists, e.g. "have you ever said differently from what you just testified to?"
2 -- Tell the witness the contents, time and date of the statement, e.g. "do you remember having your deposition taken ...?"
3 -- Afford the witness an opportunity to explain the witness.
4 -- Opposing counsel is entitled to see the statement, but need not be shown to witness at that time.
5 -- if witness acknowledges the statement, it's not admissible.

Violating Motions in Limine: know the rulings on the motion and don't violate. Instruct your witnesses on the matters that were liminied.

My Favorite Objection: "Objection, Your Honor, prejudicial." No further comment needed.