By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
“Never interrupt an opponent while he is in the middle of making a mistake.”
—Napoleon Bonaparte (1769-1821)
Two of the most important things a lawyer can convey to a client — (1) if you want to win a lawsuit, it doesn’t matter what happened in the “real world,” unless you can get it into evidence (2) if you want to avoid a lawsuit, don’t go around blasting emails, Facebook entries, or leaving an “evidence trail,” that will get you sued.
But, assuming the client didn’t get the second part (at least not in time to avoid getting sued), you still have to get “what happened” into evidence. I have two tips for lawyers that can be a total “game changer.” First let’s describe the problem.
Professor Irving Younger taught me 40 years ago when I was in law school, it doesn’t matter what happened in the real world. You have the get it into the court’s record. The court’s record is like a complete vacuum in outer space. Nothing is in the court’s record, until the lawyers put it there, using the rules of evidence. Which can be a kind of game.
Playing Hardball. All “causes of action” have “elements,” which usually break down into four groups: (1) duty (2) breach of duty (3) causation and (4) damages. Think of these four as if they are bases on a baseball diamond. The objective is to get “home.” And in this illustration “home” means getting your case “to the jury.”
To get “home,” you must get to “first base,” you have got to get some evidence in the court’s record of “duty.” This usually means the person being sued “did something” that gives rise to a duty to do it properly. To get to “second base,” there must be some evidence of “breach,” and so on with the third element of “causation” and the fourth element of “damages.”
This is also called having a “legally sufficient” case to get to the jury. This evidence doesn’t have to be very believable, there just must be “some evidence” to get to the jury. There are three problems make this harder for plaintiffs (or defendants who countersue.) And two easy fixes.
First problem. Your opponent is playing hardball. They are trying to “strike you out,” “throw you out” or “pick you off” base. Why? Because the defending party only has to eliminate any one element to keep the plaintiff from getting “home,” and thus, keep the case from getting the jury. That’s what summary judgments and directed verdicts are for.
Second problem. Depending upon the jurisdiction, courts may have determined that evidence of “A, B &C” are still “no evidence” of an element. Meaning, you have to know whether you can get “home” to a jury with the evidence you have. So, for example:
Facts: Suppose a home health agency fails to do a criminal background check on a home health worker, who then is placed in a plaintiff’s home who steals items from the home.
Here the plaintiff can practically “walk” to first and second base. “Duty” is supplied by law, the defendant “did something” by offering services. “Breach of duty” is supplied by evidence of a failure to exercise any care in doing a background check. “Damages” are also fairly clear.
But what about “third base.” Did the breach of duty “cause” the damages. Suppose a later background check turns up, that there were no prior convictions or complaints that a background check would have uncovered. Did the breach cause the damage? Was the crime a superseding cause? You have to know what the law is in a given jurisdiction. These nuances in the law might not be “intuitive.” That’s why we look them up.
Worse, frequently, the opponent will wait until the last minute to file a brief with their version of the law and why they should win. The tactic is designed so that you don’t have time to check their citations. That’s a problem.
Third problem. Just “any old witness” cannot get on the witness stand and attempt to offer evidence of “what they think,” or maybe “what they heard” someone else say about an element. This is called a “lack of foundation” or “improper predicate.” So, in the example, you might want to introduce evidence of a “lack of any record” of a crime. Is that hearsay? Is there a workaround? How do you do that?
“Predicates” are rules of evidence, some might call them, “magic incantations,” like the Medieval trial by ordeal, where the accused was required to recite a complicated sentence from the Bible. If they got it wrong, they lost. Same thing with “predicates.”
If you say the right words, the evidence comes in. Fail, and you lose.
Easy Fix No. 1: AI can help. In the November 2024 issue of the Dallas Bar Association Headnotes monthly newsletter, Alexandra Wahl, of Wick Phillips writes about the practical uses of emerging AI technology.
Nowadays, you can check the law in your jurisdiction using West Law QuickCheck or Bloomberg Law’s “Brief Analyzer,” to drop your brief (or opposing counsel’s) into the AI program, and it will analyze the law and tell you if you or you opponent got the law correctly, or if they left out important cases. This takes seconds. So if you get that last minute brief from you opponent, this is your workaround.
Note: This also means that clients can do the same thing. At any rate, lawyers still have to read the cases and double check the results; and you can see where this might eventually become the standard of care in keeping with ethics rules that require lawyers to keep up with technology.
Easy Fix No. 2: Never fail with a “predicate.” There is a 571- page State Bar of Texas Manual in ebook form Entitled “Predicates,” updated through 2024, that costs $199.00. Anyone with an internet connection can own a copy in 6 minutes. You don’t have to be a member of anything. Just Google it, and click “add to cart.” And “poof,” you never have to worry about getting “picked off base” for “improper predicates” again.
Want to get “airplane records” into evidence? The predicate is on page 20. A “chart”? That’s on page 101. “Facebook” entries? That’s on page 213. An “oral contract?” That’s page 345. “Social media page printout?” That’s page 455. “Voice identification.?” That’s page 529.
Although it is produced by The Family Law Section of the State Bar of Texas, predicates work the same for any case. Just Google “Predicates Manual 6.0” and “Texas” and you will find it.
Now, go “play ball!”