We rural practitioners have many advantages over our more urban criminal defense brothers and sisters. Less stress (in theory), less traffic, better lifestyle… wait, I will not go into everything because I do not want any more city lawyers to move here! But one thing we do not have is access to expert witnesses. For example, if you Google “expert witnesses Dallas”, you can find scores of experts who will testify about seemingly every issue you can think of. Hell, some consulting firms are even looking to hire more. However, if you have ever tried to ask one of them to come, say, to Nacogdoches, their response is likely to be, “Where’s that?” followed by a huge fee. In all fairness, who can blame them? It will take several days away from the office for them to come to rural places.
So, what is an honest, hard‑working rural practitioner to do? My advice? Grab one of those dusty evidence books from law school and look up the learned treatise exception to hearsay. Texas Rules of Evidence Rule 803 (18) states that “Statements in Learned Treatises, Periodicals, or Pamphlets are not hearsay if a) the statement is called to the attention of an expert witness on cross‑examination or relied on by the expert on direct examination, and b) The publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice. What does all that mean as a practical matter? You have the State’s witness testifying against some issue to the detriment of your client. You do not have an expert witness. But you can have the best book, manual, article from the world’s leading authority on the subject. How do you get this information before a jury? You call that to the attention of the expert witness on cross‑examination, then have them admit that is reliable. Once your book, article, manual passes legal muster, you get to read it to the jury.
I can hear the naysayers mumbling already. What if the State’s expert does not recognize that book, article, manual as a reliable authority? The State’s expert may say something like “I’ve never heard of it!” The framers of this rule must have seen that excuse coming. So as a safeguard, they put it that you can ask the Judge to take judicial notice of your expert materials. What if the Judge will not take judicial notice of it? Make an offer of proof. As a practical matter, that gives Judge’s something to worry about. They may change their position and let it in. At the very least, you may have an excellent issue for appeal. And you do not need to pay $5k for an expert to come to your rural location. You may only have to pay for the book or print out the article. This is one way in which we can all educate ourselves as experts, and this is a reasonable alternative on a rural court‑appointed attorney’s budget! So, the next time you are faced with an issue that requires expert witness testimony, do not despair. Get busy and do the research and find that learned treatise that provides the argument you’re searching for. When you have met the evidentiary burden for using a learned treatise in trial, you can then convey to the jury in your style the substance of that information and why they should consider its value in their deliberations. You do not have to drone on. Nowhere in the rule does it say you cannot read it with enthusiasm and charisma! Another upside to this is you do not have to worry about your expert witness being a gun for hire or someone who does not know what he is talking about. Also, let us not forget that the jury has observed your attention to detail and preparation on your client’s behalf. The information being given to the jury has received the court’s blessing and should be argued as having an expert’s seal of approval.