Saturday, September 27, 2008
Invitation Only: Supreme Court of Texas Finds Invited Error Doctrine Doesn't Apply To Unsuccessful Attempts To Introduce Evidence
I have had three recent opportunities on this blog (here, here, and here) to address the invited error doctrine, the doctrine under which a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make. One specific application of the invited error doctrine is that a party cannot complain that the opposing party improperly introduced evidence concerning an impermissible subject when the complaining party already introduced evidence concerning that same subject. Thus, for instance, in the recent case of United States v. Villavicencio, 2008 WL 2894108 (11th Cir. 2008), the Eleventh Circuit found that the trial court did not err in allowing the prosecution to present evidence that two grams of cocaine were recovered from a search of the defendant's bedroom, which would otherwise have been inadmissible character evidence, because defense counsel himself broached the topic during cross-examination of a DEA agent.
But what happens when a party attempts to present evidence relating to an impermissible subject, yet the trial court and/or the opposing party doesn't take the bait? Well, in that case, it seems clear to me that the invited error doctrine doesn't apply, and that's exactly what the Supreme Court of Texas found in its recent opinion in Reliance Steel & Aluminum Co. v. Sevcik, 2008 WL 4370683 (Tex. 2008). In Sevcik, Michael Sevcik and Cathy Loth were injured in a highway accident west of Houston when they were hit from behind by a tractor trailer owned by Reliance Steel & Aluminum Co. They thereafter sued, and over Reliance Steel's objection, they offered the following testimony from the deposition of Reliance's corporate representative:
Q: How big a company is Reliance?
A: I believe last year's annual sales approximated $1.9 billion.
Q: About how many employees do they have? Do you know?
A: Just guessing, I think we're close to 3,000 I think, nationwide.
Q: And are the headquarters for Reliance in California? Is that what I-
A: Yes, sir. They're in Los Angeles, California.
The trial court overruled Reliance's objection, instead crediting plaintiffs' counsel's argument that "we are definitely entitled to show they are not a mom and pop operation, and we are going to talk-It says they are a California corporation. Then he says they are a division. I'm entitled to bring all of that in."
The problem with this argument, according to the Texas supremes, is that "Reliance had never suggested to the jury that it was 'a mom and pop operation' or could only pay a limited judgment; the plaintiffs' effort to prove otherwise was simply an unsolicited attempt to show Reliance made a lot of money." Thus, this evidence should not have been admissible because "highlighting the relative wealth of a defendant has a very real potential for prejudicing the jury's determination of other disputed issues in a tort case."
So, how did the invited error doctrine come into play? Well, according to the Court, "[n]either a plaintiff's poverty nor a defendant's wealth can help a jury decide whose negligence caused an accident." And, during trial, Reliance's attorneys asked several inappropriate questions about the size and newness of the plaintiffs' cars and home. The Supreme Court of Texas, however, found that the doctrine didn't apply because "[e]ach time this occurred and an objection was made, the trial court sustained the objection and excluded the evidence." According to the Court, "One party cannot violate the rules of evidence just because the other party tried to do the same, especially if the other party's evidence was excluded."
I pretty much agree with the Court's ruling and its decision to order a new trial, but I do think that this last statement is a bit of an overstatement. If I were crafting the final line, it would have read, "One party cannot violate the rules of evidence just because the other party tried to do the same, as long as the other party's evidence was excluded." If the other party's evidence were not excluded, then that would indeed trigger the invited error doctrine, and the other party indeed could violate the rules of evidence with regard to the subject broached by the evidence.