Late-Disclosed Witnesses Does Not Mean Exclusion

Texas Supreme Court Leaves Wiggle Room for Untimely Disclosed Witnesses
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Matthew M. Buschi


On September 1, 2023, the Texas Supreme Court answered the question of whether a witness may be introduced at trial even though that witness was not disclosed as a person with knowledge of relevant facts until two weeks before trial. The Texas Supreme Court’s per curiam opinion in Andrew Jackson v. Kristen C. Hitchcock Takara as Representative and Independent Administratrix of the Estate of Reuben Blair Hitchcock held that the witness could be introduced, noting that there was no unfair surprise or prejudice against the opposing party. The Court based its reasoning on the fact that the witness had been mentioned during several depositions, and the opposing counsel visited the witness’s residence during a property inspection related to the case.

The Hitchcock case involves Reuben Hitchcock, an intellectually disabled individual who earned a living doing odd jobs in Milam County, Texas. Hitchcock was fatally injured while working for Andrew Jackson. Hitchcock had been using the front bucket of Jackson’s tractor as an improvised elevated platform in order to trim trees, and accidentally fell off of the bucket to his death. Hitchcock’s estate filed a lawsuit against Jackson for negligence, accusing Jackson of disregarding safety precautions by allowing Hitchcock to use the tractor’s bucket as a platform.

During the trial, Jackson’s counsel introduced Hitchcock’s landlord as a witness. The landlord testified that Hitchcock had a “policy” of being comfortable using the front-end loader as a work platform, provided the tractor remained stationary. The counsel for Hitchcock’s estate objected to this witness’s testimony, as the landlord had been disclosed by Jackson as a person having “knowledge of relevant facts” only two weeks before the trial. In response, Jackson’s counsel noted that the objecting counsel was previously aware of the landlord’s existence, as the landlord had been mentioned during the deposition of Hitchcock’s estate’s administratrix, and the landlord’s residence was visited during a property inspection. The trial court dismissed the objection and allowed the witness to testify.

However, upon appeal, the ruling on the objection was overturned. The appellate court ruled that Jackson’s counsel’s statements regarding the opposing counsel’s awareness of the witness, and the lack of relevant deposition testimony in the records, was insufficient evidence to conclude that there was no unfair surprise or prejudice to Hitchcock.

The Hitchcock case is interesting in light of Rule 194 of the Texas Rules of Civil Procedure, which requires parties to make certain disclosures without waiting for a request from the opposing party. Rule 193.5 additionally requires parties to supplement those disclosures in a timely manner, and presumes that supplemental disclosures made less than 30 days before the trial do not comply with the rule’s requirements. Rule 193.6 further clarifies that a party’s failure to timely disclose material information may prevent that party from introducing that information, unless the court identifies a valid reason for the delay or establishes that the delay will not unfairly surprise or prejudice the opposing parties. The focal point of the Hitchcock opinion is on Rule 193.6’s subsection (b) regarding unfair surprise or prejudice.

In the Hitchcock opinion, the Supreme Court identified an error in the Court of Appeals’ application of Rule 193.6. The Court of Appeals held that a finding of no unfair surprise or prejudice “must be supported by the record.” The Supreme Court reasoned that the uncontroverted assertions by Jackson’s counsel at trial, concerning why the opposing side was not unfairly surprised or prejudiced, was sufficient basis for the trial court to find a lack of unfair surprise or prejudice, without the necessity of having specific evidence in the record.

Generally, unsworn statements of counsel are not considered evidence. For the purposes of the Supreme Court’s ruling in Hitchcock, however, an unsworn statement of counsel was considered evidence because the opposing counsel failed to object to such statement. Thus, the counsel’s statement was sufficient for the trial court use as a basis for its decision.

The Hitchcock case teaches two critical lessons: first, the failure to disclose a witness shortly before trial does not always mean that the witness will be excluded from trial. If there are enough indications during the discovery phase that the witness is someone with knowledge of relevant facts, the witness may be permitted to testify. Second, the unsworn and uncontested statements of counsel regarding the discovery process can be used by a trial court to dismiss any claims of surprise or prejudice. Therefore, litigation counsel should be vigilant during hearings and other trial settings and should object to arguments from opposing counsel that speak to whether a party has been unfairly surprised by a late or undisclosed witness or piece of evidence.

Jackson v. Takara, No. 22-0288, 2023 WL 5655867 (Tex. Sept. 1, 2023)

ABOUT THE AUTHOR: Matthew M. Buschi serves as Counsel at Rapp & Krock, PC in the Firm’s Litigation/Creditor Rights Group, where he represents parties in business litigation matters in trial and appellate courts as well as arbitration.


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