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What is considered to be inflammatory evidence under Texas personal injury law?

We’ve all had arguments that devolved from a disagreement about the subject matter at hand to something personal and mean. When this happens, one or both parties to the argument were no longer trying to prove a relevant point, but were instead simply trying to be hurtful.

Believe it or not, the rules of evidence has already contemplated this and made rules to stop it from happening in the courtroom. If you’re worried about a defense lawyer simply trying to embarrass you with personal details about your life to try to drag your claim through the mud, then you need to read on to learn how a sharp lawyer can stop that nonsense in its tracks.


Questions Answered on This Page:

  • What exactly is inflammatory evidence?
  • How does inflammatory evidence impact a personal injury case?
  • How can my attorney keep inflammatory evidence out of my personal injury case?

“Inflammatory” = irrelevant or unfairly harmful

The rules of arguing and using evidence in court are similar to how people should engage in debate: stick to the point and keep the personal stuff at a minimum. How that plays out in the court, of course, is rather complex. There are two main rules of evidence that your attorney can use.

First, the rules do a good job of keeping out the needlessly harmful or personal stuff because everything that comes before a court must pass what we can call “relevancy test.” Basically, testimony or evidence must make either the plaintiff’s or defendant’s case more likely to be true. In a personal injury case, the main categories relate to 1) the accident and who was at fault, and 2) whether you have financial losses or physical/emotional suffering, and 3) whether your suffering can be traced directly back to the accident. Anything else should be kept completely out of the jury’s view.

If you’ve done some things you’re not proud of in your past, it’s likely that your attorney should be able to keep that stuff private. For example, if 10 years ago you were charged with possession of marijuana, that likely has absolutely nothing to do with a personal injury claim—especially when there’s no indication that drug use played a role in your accident.

Also, hardly ever would any sexual improprieties in your past impact your case. If you’re worried about something you’re embarrassed about, ask yourself: “Is there any possible connection to the accident?” If your answer is “no,” then you likely have nothing to worry about.

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Second, but what about if you can imagine a connection? There’s still a good chance at keeping that stuff out. The rules of evidence state that even relevant evidence shouldn’t be entered into evidence if its “value is substantially outweighed by the danger of unfair prejudice.” What does this mean? Basically, your lawyer must ask the judge to weigh the whether the potential impact of the evidence really adds enough to the defendant’s case to warrant the jury viewing you unfairly.

Some examples of how this would work may illuminate what all the above really mean:

  • In a car wreck case, the plaintiff had a stash of pornography in his car. The plaintiff’s attorney will argue, likely successfully, that the materials are completely irrelevant and no information about their presence would help the jury decide who was responsible for the accident. Likely Result = Irrelevant and kept from the jury.
  • In a truck accident, a man is killed by an 18-wheeler. It comes to light that the woman in his car at the time of the incident was not his wife, but his mistress. What the mistress saw about the accident is plainly relevant and she’ll have to testify. However, the widow’s wife’s attorney will argue to the court that the jury shouldn’t learn about the fact that the mistress was having an affair with the widow’s husband because it will unfairly prejudice the jury to the man without any good legal basis. Likely Result = Relevant, but needlessly inflammatory and kept from the jury.

Call Grossman Law Offices

As you can tell, the rules are relatively flexible. Your attorney will need to be able to explain to a jury why potentially embarrassing and harmful evidence should be kept from the jury. Call the experienced attorneys at Grossman Law Offices now to find out what we can do for you. Call us at (855) 326-0000.


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