Cross-examining The Wrongful Death Defendant With Their Lawyers’ Letters

In certain situations the letters of a wrongful death defendants’ lawyers may be used in the cross-examination of the defendant. Take the situation in which there is a pile up on the Interstate highway where Plaintiff stops in heavy traffic, Negligent Defendant strikes Plaintiff from the rear killing Plaintiff, and Negligent 18-Wheeler subsequently rear-ends Negligent Defendant killing Negligent Defendant. Plaintiffs’ family and estate make wrongful death and survival claims against Negligent Defendant. Negligent Defendant, who is insured by one of the “just say no” companies, AllSnakeFarm, denies liability claiming that Plaintiff was negligent in failing to see Negligent Defendant coming and failing to somehow get out of the way and avoid the accident. At the same time Negligent Defendant hires a Plaintiff’s lawyer who makes a claim against Negligent 18-Wheeler alleging that Negligent 18-Wheeler was not only negligent but also grossly negligent for striking and killing Negligent Defendant.

Texas Rule of Evidence 613 provides that a witness may be cross-examined regarding prior inconsistent statements. In Westchester Fire Insurance Company v. Lowe the Court held that the position statements of a parties’ counsel are the statements of the party and can be used in the cross-examination of the party. Using our same example, suppose the attorney for Negligent Defendant writes a Stowers demand letter to the attorneys for Negligent 18-Wheeler arguing that the death of Negligent Defendant is the fault of Negligent 18-Wheeler and asserting damages for the loss of a family member. Pursuant to TRE 613 and the interpreting cases the Stowers demand letter is the position statement of Negligent Defendant and can be used when cross-examining Negligent Defendant.

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