A recent decision of the Texas Court of Appeals, Third District (Austin) provides important reminders for those who would represent themselves in legal proceedings. Much has been said, sometimes insultingly, about those who self-represent. This case was Davila v. Texas Mutual Insurance Company, NO. 03-19-00366-CV.
The plaintiff, Rhonda Davila, filed a civil lawsuit against the insurance company that covered workers' compensation for her employer. The insurance company filed for summary judgment asserting that there was no evidence to support Ms. Davila's allegations. Ms. Davila unsuccessfully sought to then present evidence, to which the insurance company successfully objected. That evidence was thus not considered by the Court. Her lawsuit was concluded by the judge's dismissal decision. The appellate court affirmed the trial court's decision in all regards.
The case began with a work-related back injury. The injured worker and the employer disagreed as to "the extent of
her compensable injury," when "she reached maximum medical improvement (MMI)," and "her impairment rating." These are not uncommon disputes in workers' compensation. Those issues of relationship, recovery, and impairment are actually somewhat common.
In the workers' compensation proceeding, Ms. Davila sought adjudication from an "administrative law judge (ALJ)" who concluded that her "compensable injury did not extend to or include" certain low back complaints. The Judge found she had reached MMI for her other (compensable) complaints and had a "0% impairment rating." In making such decisions, the judge relied on the opinions of medical experts. It is common in medicine for different doctors to have different opinions. That is not a reflection on any particular doctor, but instead is part of the very nature of opinions. Despite the tendency to view medicine as science, there are many areas therein of opinion and interpretation that are science-based but not actually science per se.
After losing an appeal of the ALJ decision before a workers' compensation appeals panel, She filed the civil lawsuit that is the subject of the decision cited above. She sought to have the Court review the findings (conclusions about facts like the MMI date) of the ALJ and workers' compensation appeals panel. When the insurance company asked the Court to dismiss the challenge, Ms. Davila provided various documents ("exhibits A through J") in response. These documents were intended as evidence in support of her allegations, and also in opposition to the insurance company's request for dismissal.
The insurance company objected to the exhibits. It argued the documents had not been authenticated (shown to be what they said they were), that they were hearsay (out of court statements submitted to prove those statements true). These are two of the most common trial objections to documents. Each has been discussed at various times on this blog. See Better Understanding the Hearsay Rule, Hearsay within Hearsay (March 2016), and Hearsay and Authenticity (March 2020). Of note, if these legal strictures were easy to understand neither I nor others would spend so much time writing about them. They are not simple sometimes and can challenge the best of litigation attorneys. They can likewise also challenge the pro se litigant who is likely experiencing them far less often.
Notably, evidentiary objections are often raised in litigation. When they are raised (a party saying some document offered should not be considered), the other party (that wants them considered) is allowed to respond to the objection. In this instance, however, Ms. Davila "did
not file a response to (the) . . . objections" regarding authenticity and hearsay. Later, at a hearing, she strove to rely on her contention that the documents were evidence in the ALJ proceeding. But, the court was not persuaded that the ALJ's acceptance of the documents rendered them admissible in the court proceeding.
The court thus found Ms. Davila's arguments unpersuasive, and she saw her case dismissed. The appellate Court noted that she failed to provide legal arguments as to the admissibility of the documents beyond that they were admitted by the ALJ. The Court noted that her only substantive response was seemingly "she had 'tons of evidence.'” And, that also is likely reasonably common. In the paper world in which we live, there are medical bills, physician notes, receipts, off-work or activity restriction slips, payroll records, and so much more. Documents abound around us in our daily lives, and workers' compensation is no different. That one has documents does not make them admissible evidence though.
The appellate Court explained that whether to admit Ms. Davila's documents was within the discretion of the trial judge. The Court noted that Ms. Davila "disagreed with the arguments of Texas Mutual," and with the decisions of the judge. But, it noted, she her arguments were "vague reference," and did not include "supporting argument" or legal authority to undermine the merits of the objections to her documents. In effect, she failed to provide legal arguments for the admissibility of her evidence or to cite to specific rules, statutes, or court decisions that supported those contentions. That failure started with not responding to the Texas Mutual motion to dismiss, and continued with her response at hearing being merely factual (these are those documents) instead of legal (this or that rule says the document should be evidence).
That is what lawyers do. Lawyers, particularly litigators, have spent much of their time studying those very particular and detailed rules and statutes. They have studied how courts have interpreted those rules and statutes (authorities). They have striven to comprehend the sometimes subtle differences or distinctions between those authorities in various proceedings, contexts, and situations. Litigators specialize in evidence, whether to put theirs before the decision-maker or to prevent their opponents from such consideration.
The appellate court reminded that in its review it was limited to reviewing what occurred in the trial court. Issues cannot be addressed on appeal if those issues were not brought up in the trial court. Here, the appellate Court's phrase is instructive: "A party may not argue 'any and every new issue' she can think of on appeal." No, "by
failing to raise complaints as to the merits of the trial court’s rulings on the objections," Ms. Davila "failed to preserve error for appeal." She did not object or adequately explain at the trial court hearing, and thus she waived her ability to appeal on that basis. This is called "preservation of error," and is another topic on which even the best attorneys are periodically stymied.
It is important when multiple objections are raised (as the insurance company here raised both "hearsay" and "authenticity,") that the party seeking to admit evidence respond to each objection effectively. The Court concluded that in the light most favorable to Ms. Davila, she perhaps addressed hearsay. But, it noted, "she fails to address the other two objections." As she failed to address them, the Court concluded "the trial court could have sustained" the insurance company's objections to her evidence on those other grounds; the grounds she did not address and thus grounds which were "waived."
The lessons of Davila are pertinent for lawyers and pro se litigants alike. First, bring evidence (May 2013). Second, know the rules and statutes that govern the admission of evidence. Third, if multiple objections to evidence are made, respond to each and every objection. Finally, appellate courts are unlikely to address complaints (errors) that are not raised in the trial court. Appellate courts prefer that problems are solved in the trial courts when possible, and trial courts cannot very well address issues that are not raised and argued there.
There is no reason that a person cannot represent her/himself in a proceeding. But, to do so, that person must invest the time to understand statutes, rules, and court decisions. Understanding those provides the foundation, the map, that will allow progress along the path that is litigation. Failure to understand that map may well result in a party or attorney ending up lost rather than reaching the intended destination.
