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Sidebar Arguments in Probate Litigation are Grounds for a New Trial

Probate litigation cases in Texas can often be heated, emotional, and contentious affairs.

In the heat of the moment, inappropriate comments can be made that unduly sway the jury, leading to unjust outcomes. In this context, it’s important to understand that inferences may be drawn based on evidence, but an inference itself is not evidence.

Unfortunately, sometimes lawyers in probate litigation can draw inferences that are not based on the evidence presented in the case. This can lead to so-called “sidebar arguments” which are objectionable and prejudicial.

There are remedies available to parties who are affected by such improper arguments, including motions for new trial. The court discussed this in the case Magaline v. J.V. Harrison Truck Lines, Inc., 446 S.W.2d 920 (Tex. Civ. App. – Houston [14th Dist.] 1969 writ. ref’d).

Facts & Procedural History

George J. Magdalene (Plaintiff) sued J.V. Harrison Truck Lines, Inc. and Wiley Burton (Defendants) for injuries he allegedly sustained from a car and truck collision in 1967. On the day of the accident, 17 cars and trucks were involved in the accident.

Plaintiff claimed Defendants were the owner and the driver of the vehicle that allegedly struck Plaintiff’s car.

During his jury arguments, Defendants’ counsel referred to State Highway Patrol or the Deputy Sheriff and how they could be subpoenaed into court to discuss their public records of the car accident. Defendants’ counsel had also suggested to the jury that Plaintiff could still sue an individual, known by the uncalled witnesses, under the statute of limitations. The trial court judge instructed the jury to disregard these side-bar arguments that were outside of the evidence presented in the case.

The jury found that Plaintiff was not in his vehicle at the time it was struck by the J.V. Harrison vehicle, and the trial court entered judgment that Plaintiff was to take nothing by his suit against the Defendants. Plaintiff appealed to the Court of Civil Appeals.

The Texas Rules of Evidence: Sidebar Arguments

The rules of evidence in Texas, as in most jurisdictions, govern what evidence is admissible in court. The rules specify the types of evidence that are permissible and the procedures for introducing that evidence. Evidence that is not properly introduced or that does not meet the criteria for admissibility under the rules may be excluded from consideration by the court.

In Texas courts, arguments can only be made about evidence that has been properly admitted into the record. This means that evidence that was not introduced at trial or was not properly admitted cannot be used as the basis for an argument or for any other purpose in the case.

Arguments that are made without the support of evidence are often referred to as “sidebar” arguments. Sidebar arguments are objectionable. If the other party objects, the court is to instruct the jury not to consider the arguments.

To avoid judicial delay, trial court judges will usually instruct the jury to disregard the argument and allow the other party leeway to rebut the argument. This may not be sufficient to overcome the prejudicial effect of the argument. If the sidebar arguments are sufficiently prejudicial, that the argument was raised may allow the other party to get a new trial.

Motion for New Trial

In Texas litigation, a motion for new trial is a post-trial motion that can be filed by a party who is seeking to challenge the outcome of a case.

The motion asks the court to set aside the judgment and grant a new trial based on certain specified grounds.

The rules for a motion for new trial in Texas are outlined in Rule 324 of the Texas Rules of Civil Procedure. Some of the grounds that can be cited in a motion for new trial include:

  1. Newly discovered evidence that could not have been discovered before trial with due diligence;
  2. Misconduct by a party or their attorney that prevented a fair trial;
  3. Errors of law by the court that materially affected the party’s rights;
  4. The verdict is contrary to the law and evidence;
  5. The damages awarded are excessive or inadequate;
  6. The jury was improperly influenced by outside factors, such as media coverage or the conduct of a party.

The motion for new trial must be filed within a certain time frame, usually within 30 days after the judgment is signed.

The party filing the motion must also provide notice to the opposing party and a hearing will be held to consider the motion. At the hearing, the court will consider the grounds cited in the motion and determine whether to grant a new trial or deny the motion.

If the motion is denied, the party may still have the option to appeal the judgment.

This brings us back to the appellate opinion in this case. The appeals court concluded that the references to facts and issues outside of the records were improper, harmfully prejudicial, and reversible error. Thus, the court of civil appeals reversed and remanded the case back to the trial court for a new trial.

The Takeaway

A party’s counsel has the right to discuss evidence and draw their own conclusions, deductions, and inferences. If counsel stays within the record, even if their inferences are erroneous, it can be cured through a jury instruction. However, when the inference is unsupported by the record, clearly unjustified, prejudicial, inflammatory, and a persistent issue, it is reversible error despite the jury instructions of the trial court.

If you are involved in probate litigation in Texas, you may be wondering whether you need to hire an experienced probate attorney. The answer to this question depends on a number of factors, including the complexity of your case and the amount of money at stake.

If your case is complex, or if there is a lot of money at stake, it is probably a good idea to hire an experienced probate attorney. Probate litigation can be complex and time-consuming, and an experienced attorney will be able to navigate the process more efficiently. Additionally, an experienced attorney will likely have a better understanding of the law and be better equipped to handle complex legal issues.

Our Houston Probate Attorneys provide a full range of probate services to our clients, including probate litigation. Affordable rates, fixed fees, and payment plans are available. We provide step-by-step instructions, guidance, checklists, and more for completing the probate process. We have years of combined experience we can use to support and guide you with probate and estate matters. Call us today for a FREE attorney consultation.


The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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