TX Trial and Appellate Procedure - Carlson

Improper Admission of Evidence If evidence is in the record but improperly admitted over a proper objection, what is its effect upon a motion for instructed verdict?

It's "no evidence"; incompetent evidence is no evidence. Assuming you preserved the complaint by objecting. (No probative value) See E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex. 1987) (per curiam) (reversing and rendering take nothing judgment as to attorney's fees when evidence was admitted erroneously and no other evidence of attorney's fees was in the record).

Ethical Considerations. Consider what you would do in the following situation: You have been unable to locate your client for a prospective trial setting. The opposition, not being aware of your difficulty, has just made a settlement offer on attractive terms, which you would strongly advise your client to accept if you could get in touch with him. What do you do in order to best represent your client and fulfill your ethical duties?

It's the client's decision to settle, NOT the attorney. You have to find the client or decline the offer. Very important for client to keep lawyer informed of how to get in contact. You could put in your retention agreement that you have authority to settle, but there are tons of cases where clients sue a lawyer who makes a settlement decision based on lawyer's interest instead of client's interest (breach of fiduciary duty). Remember, one of the remedies for breach of FD is fee forfeiture, so it is not advisable to try to settle on behalf of the client, even if in your retention agreement.

NOTE 1: Though JNOV and motion for directed verdict have the same legal standard, there are differences:

JNOV must be on a party's written motion (motion for instructed verdict can be oral or written) JNOV has to be on motion and sufficient notice before the court can rule on it; Interpreted to mean that since it requires a motion, the court cannot enter a JNOV sua sponte. By contrast, a court may enter a motion for directed verdict sua sponte.

NOTE 3: Courts can ignore jury findings that are immaterial, even without a

JNOV.

What happens if a judge refuses to grant a legislative continuance even after an appeals court reverses and remands the failure to grant a legislative continuance as an abuse of discretion?

Judge can be put in jail for contempt until she decides to grant the continuance. So, legislative continuance is mandatory, except for Waites exception

What is the obligation of the Court to respond to juror questions?

Judges are reluctant to respond to juror questions as they are often improper. Will often respond that they should follow instructions.

Examples of judgments that do not occur after conventional trial on the merits so Aldridge Presumption of Finality does not apply:

Judgment of dismissal on plaintiff's nonsuit; Judgment of dismissal on plea to jurisdiction; Judgment of dismissal on plea in abatement; Judgment of dismissal for want of prosecution; Default Judgment Summary Judgment

Enforcement of Judgment Against Sureties Following Appellate Disposition

Judgment on Appeal: If affirmed = judgment is rendered against debtors and the surety If reversed = the surety is discharged (they secured that judgment, and that judgment is gone; if go back on remand, have to get a new bond) as a matter of law, and the surety is not liable for any judgment that might be rendered on remand.

Lemos case - this court has treated addenda (surplus instructions) to the charge as impermissible comments that tilt or nudge the jury one way or another.

Judicial history teaches that broad issues and acceptable definition suffice. Simplicity is best. Don't load it up with unnecesssary instructions, and make sure any instructions are not a comment on the weight of the evidence.

How do you become the presiding juror?

Jurors are told to decide amongst themselves who will be the presiding juror. The presiding juror writes the answer down on the charge.

What should the court do if the jurors send a note stating they cannot reach a verdict?

Jury must deliberate a reasonable amount of time, so if court feels they have not deliberated sufficiently it may so instruct the jury and return them to further deliberate. The court may choose to give additional instructions known as an Allen Charge (dynamite charge), but cannot be coercive.

[8] Jury Deliberations and Receipt of Verdict

Jury retires to consider its verdict. It may ask questions of the court, receive further instructions, inspect written evidence (including photos) Jury returns its written answers to the judge's questions; these answers are called the verdict. If the verdict appears to be in proper form, the judge formally receives it. If not, the judge may send the jurors back for further deliberations, perhaps with new instructions. If the jurors are unable to agree on a verdict, the judge may declare a mistrial

Hood v. Adams,334 S.W.2d 206 (Tex. Civ. App.—Amarillo 1960, no writ). FACTS: Defendant removed the topsoil from plaintiffs' land. Plaintiffs filed an action to recover their damages. The trial court found in favor of plaintiffs. Defendant appealed. TCt made original findings, then a party timely requested for amended findings that go to the same factual matters. Issue: as between original findings and later filed findings, which prevail?

LATER filed prevails. You can always attack findings (of any kind) on appeal as not supported by law and evidence. "Any conflict between the original findings of fact and later filed additional findings must be resolved in favor of the later filed findings." The judgment should conform to the amended findings of fact, should be consistent.

A party who unconditionally moves for judgment on the verdict waives the right to

subsequently attack the sufficiency of the evidence to support the jury findings. Basically, by moving for judgment on the verdict, you "bless" the verdict in its entirety, so you cannot then later attack the fact findings that you've blessed. But, sometimes you are so done with the trial court that you want to get to the appellate court. There's no time certain by which a trial court has to sign a final judgment (which is what starts the clock on expiration of plenary power, and starts the clock on how much time you have to appeal). So if you're the losing party, you want to not push for the signing of the judgment. Want to keep the plenary power of the court alive, and see if you can turn the judge around on a few things (maybe the whole thing). As long as the court has plenary power, it can change its judgment.

Rule 329b(g) of the Texas Rules of Civil Procedure provides that "[a] motion to modify, correct, or reform a judgment . . . shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as a motion for new trial." The character of a motion is to be determined from its ...

substance, not from its caption. The issue addressed in Rule 329b is not whether the pleading specifically requests a "modification" or "correction" or "reformation" of the judgment, as opposed to a pleading that does not make such a specific request; *the issue is whether the motion requests a substantive change in the judgment as entered*. We conclude that any post-judgment motion that, if granted, would result in a substantive change in the judgment as entered is a motion within the contemplation of rule 329b(g), and is, therefore, effective in extending the time to perfect the appeal.

A remittitur is a

suggestion by a judge (usually upon motion to reduce or throw out a jury verdict) to lower the amount of damages awarded by a jury in a civil case to comport to the evidence to avoid the trial court granting a new trial. When the damages do not comport with the weight of the evidence, a party may elect to accept the court's suggestion of a remittitur or propose one to the court or seek a new trial and reject the remittitur suggestion. The trial court hypothetically remits the excessive damage amount so the damage total comports with the weight of the evidence put on at trial. Party has to sign saying they accept remittitur; must be in the record. Court of appeals can also recommend remittitur.

Every statement of fact in the mandamus petition must be

supported by citation to competent evidence included in the appendix or record.

Defective general questions -

suppose in response to a general question the juror doesn't disclose his bias or relationship with a party but the matter is discovered during the trial? But counsel just asked "anything in your experience which would make you favor the P? HELD: the juror did not commit misconduct in failing to respond to general question she interpreted in a particular way. A general question will not show bias for challenges for cause. Need to be more precise in your questions.

EX: Counsel failed to plead the ground of fraud. Plead breach of contract; misrepresentation; but not fraud. But then they put on evidence on every element of fraud and the other side doesn't object. If counsel requests the inclusion of the fraud grounds in the jury charge, and opposing counsel objects that there is no pleading on fraud, the trial court should ...

sustain the objection to that jury question.

Invoking "The Rule" Tex. R. Civ. P. 267. Witnesses Placed Under Rule.; Evidence Rule 614 Tex. R. Civ. P. 267(a): At the request of either party, in a civil case, the witnesses on both sides shall be ...

sworn and removed out of the courtroom to some place where they cannot hear the testimony as delivered by any other witness in the cause; and asked not to discuss the case. This is termed placing witnesses "under the rule."

Due Diligence Requirements To show necessary diligence, the attorney must consider whether a witness resides within the subpoena range of the court, so that the witness can be compelled to appear and testify at trial. If so, then the witness must be subpoenaed (with $10 fee paid) If the witness does not reside within subpoena range, the attorney may be required to

take a deposition in order to eliminate the risk that the witness may be unavailable at trial. ÷Tex. R. Civ. P. 176.3(a) - subpoena range does not extend "to a county that is more than 150 miles from where the person [subpoenaed] resides or is served." ÷Tex. Civ. Prac. & Rem. Code §22.002 - subpoena range is 150 miles or less from county in which a suit is pending.

One of the things you have to show to get continuance for want of testimony (witness can't make it to trial), is that you were diligent in trying to get witness's testimony. If they are outside of the 150 mile radius, you can ...

take a person's deposition where they are, but can't force them to come testify at trial if they reside 150 miles from county of suit. Under Rule 176, we can subpoena a person who is not a party, but we need to have that person subpoenaed to produce documents or give a deposition, but *have to do it at a location that it not more than 150 miles from where that person resides or is served.* In other words, you can take that person's deposition where they are, but we can't force them to come testify at trial if they're a nonparty and they reside more than 150 miles from the county of suit.

To the extent that a judgment debtor is uncooperative with reasonable discovery concerning the judgment debtor's net worth, the trial court may

take appropriate steps (e. g. compel responses, issue sanctions, etc.) to ensure that discovery is completed before the hearing on the judgment creditor's contest. Rule 24.2(c)(2) allows the judgment creditor to conduct reasonable discovery concerning the judgment debtor's net worth.

Papers Taken to Jury Room Tex. R. Civ. P. 281 provides that the jury may, and on request shall,

take the charge with them when they retire to deliberate. Any admitted written evidence, but *not depositions (because they contain inadmissible evidence)*, may be taken to the jury room by the jury and consulted during jury deliberations. Depositions - the scope of discovery is different than the scope of admissible evidence. Some statements are read to jury, others not. Other exhibits admitted in evidence may also be permitted to be taken to the jury room. Ex: Mechanical model received by court "for purpose of illustrating a mechanical principle."

Complaints Concerning Sufficiency of Evidence: *JURY TRIAL* TRAP 33: "[i]n a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, UNLESS

taking evidence was necessary to properly present the complaint in the trial court." Tex. R. App. P. 33.1(b).

The court shall file any additional or amended findings and conclusions that are appropriate within ____ days after such request is filed, and cause a copy to be mailed to each party to the suit.

ten No findings or conclusions shall be deemed or presumed by any failure of the court to make any additional findings or conclusions.

The request for these additional findings shall be made within ____ days after the filing of the original findings and conclusions by the court.

ten Each request made pursuant to this rule shall be served on each party to the suit in accordance with Rule 21a.

If you don't have the BOP (almost always D) and the jury goes against you, you make a motion for a new trial and argue

that there is "insufficient evidence" to support the jury's finding; the party failed to meet its BOP

The rendition of an appealable judgment by a court of appeals does not release the supersedeas bond during the pendency of an appeal of the court of appeals' judgment to

the Texas Supreme Court.

Financial institutions were able to get a statute passed that when a default judgment is entered against a financial institution based on garnishment action, their liability is limited to

the amount in the account.

Constitutionally Flawed Peremptory Challenge While counsel may generally use peremptory challenges to strike a potential juror for any reason, certain reasons are improper under the United States Constitution.

Look to equal protection law as the framework for making these decisions. EPC - govt cannot discriminate based on different categories without a different strength of a reason. Scrutiny applied to discrimination:

CHAPTER 10: COURT OF APPEALS

Looking at proceeding to court of appeals from a final judgment (as opposed from interlocutory appeals or restricted appeals) 14 courts of appeals in TX, with a pending bill to restrict it to 7. This last election a lot of incumbent Republicans lost on appeals courts. 1st Court of Appeals every created was in Galveston (center of TX economy at the time). 1st got moved to Houston, where the 14th was already located. Effectively one now in that they share a lot of resources. But they do have separate supreme justices; different precedents, etc.

CHAPTER 9: REVIEW OF FINAL AND INTERLOCUTORY ORDERS IN THE APPELLATE COURTS

Looking at two major things in this chapter: 1) what does it take to have a final judgment? 2) what interlocutory orders (not final) can be appealed at the interlocutory stage?

CHAPTER 6: JURY DELIBERATIONS AND VERDICT

Looking at what are the constraints of the jury during deliberation, what happens when problems come up. The jury charge is ready to the jury prior to closing argument and the jury takes it into the jury room and basically fills in the answer blanks during the course of its deliberations.

CHAPTER 8:STANDARDS OF REVIEW Considers the allocation of power between judge and jury. When will the jury's decision become the basis for the court's judgment, and when will the court render a different judgment or order a new trial?

Looking at when are jury's findings binding on a court, when can a court disregarding findings, etc.

How to preserve factual sufficiency complaint in jury trial?

MNT If a court denies a motion for new trial made on factual sufficiency grounds out of a jury trial, we can raise that complaint on appeal. That's how you preserve this complaint, a MNT.

Garcia v. Kastner Farms, Inc., 774 S.W.2d 668 (Tex. 1989) ISSUE: The issue presented is whether Alfredo P. Garcia has reasonably explained his failure to timely file a cost bond for appeal. Is reasonably explaining the need for more time the equivalent of good cause? Is it a more liberal standard?

MORE LIBERAL: "Reasonable Explanation" is any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance." Very liberal standard to meet. This liberal standard of review encompasses the negligence of counsel as a reasonable explanation for the necessity of an extension. You can be stupid, you can't be deliberate. TXSC going out of its way to protect litigant's ability to appeal

Request - regarding jury charge

Made as to *omissions* from the charge: ----Requests that a Missing element, ground, definition or instruction (no matter who relies on) be used. ---Getting the draft proposal jury charge from party is more helpful (than an objection) for the judge. *Timing:* At the charge conference (make sure the court reporter is present). *Must be written.* -The proposed request must be *substantially legally correct.* *Must get an explicit ruling on the request.* (NO IMPLICIT RULINGS)

Objection regarding jury charge

Made as to a *defect in the charge:* 1) Defective question, instruction, or definition (in law, the placement of the BOP, etc.) 2) Omitted question relied upon by your opponent (or may request) - [but broad form submission makes it difficult to determine who is relying, since can include multiple grounds and defenses in a question]

Justice Hecht's Dissent (Question 2) - Trick No. 1 Does a motion filed within the trial court's plenary jurisdiction extend that jurisdiction and the time for perfecting appeal in the same manner as a "motion for new trial" if it requests that additional relief such as sanctions be granted, without specifically requesting a change in the judgment?

Majority says NO, Justice Hecht says YES.

Justice Hecht's Dissent (Question 3) - Trick No. 2 Does a motion filed within the trial court's plenary jurisdiction extend that jurisdiction and the time for perfecting appeal in the same manner as a "motion for a new trial" if it requests a non-substantive change (for example, changing spelling, correcting commas, etc.) in the judgment?

Majority says NO, Justice Hecht says YES.

Justice Hecht's Dissent (Question 1) Does a motion filed within the trial court's plenary jurisdiction extend that jurisdiction and the time for perfecting appeal in the same manner as a "motion for new trial" if it requests that the judgment be changed to include sanctions?

Majority says YES (Everyone agrees, if it is made within the time period and there is a substantive change).

When the only post-judgment motion filed is a motion to modify a typo in the judgment; seeking to correct the spelling of "thiis" to "this"; that is timely filed (before day 30), does that serve to extend the plenary power and extend the appellate timetable?

Majority: NO, because that is not a substantive change. This is mostly academic, but it came up in a case regarding whether the change of a comma was substantive. In that case, the court found that there was a substantive change that resulted from the change of the comma and thus plenary power and time to appeal was extended. In a multiple party case, there were will be a lot of post judgment motions. When any party files an extending motion and that enlarges the plenary power of the TCT, it covers ALL parties.

How do you get a preferential setting?

Make a motion for a preferential setting. By statute, TX trial courts must give preference to hearing of certain specific types of cases. -Matters that will cause physical or economic harm to the public or the parties -Matters involving substantive or constitutional rights -Matters involving the public or the public welfare Local rules can affect the basis for preferential setting. -Likely especially if it is a huge case with lots of witnesses, cost a lot of money to try, etc. -In Harris county you are likely to get it

Writ of Prohibition

Mandamus - orders TCT to DO something; *writ of prohibition - orders courts to NOT do something.*

Often jurors are puzzled by the reading of depositions, and they tend to give it less weight than that given to testimony of live witnesses.

Many lawyers give some explanation of the procedure into the record (or talk to jurors about depositions during voir dire examination). You do provide the court with the transcript. If a busy expert or a distant witness cannot appear, that witness can be easily presented by deposition. May consider video depo or by some other electronic means. Americans are watchers, not readers. Seems more real. Helps jurors take deposition as of equivalent evidentiary weight as live testimony

Preparation and Filing of Notice of Appeal An amendment to a notice of appeal to correct a defect or omission in an earlier field notice may be filed in the appellate court "at any time before

the appealing party's brief is filed. The amended notice is subject to being struck for cause on the motion of any party affected by the amended notice." Tex. R. App. P. 25.1(f).

Appellate Rule 38.2(b) and Civil Procedure Rule 324(c) require an appellee to assert cross-points any other ground that would support a jnov in the appellee's brief if

the appellee obtained a judgment notwithstanding the verdict in the trial court. Although appellees may no longer use cross-points to obtain a more favorable judgment than the judgment obtained in the lower court, cross-points may be used to assert independent grounds for affirmance or for a less favorable judgment in the event the lower court's judgment in favor of the appellee is reversed.

Failure to Appear Rule 165a also allows dismissal "for want of prosecution or failure of any party seeking affirmative relief to appear for any hearing of which the party had notice." Rule 8 provides that "all communications from the court with respect to a suit shall be sent to the attorney in charge" No local rule can vary mandatory terms of Rule 8 and 165a *The "attorney in charge" is....*

the attorney whose signature first appears on the pleading. EX: Have 3 lawyers for D. The one whose signature first appears in their Answer when they respond to the lawsuit is the "attorney in charge." Unless another lawyer is specifically designated the attorney in charge

Methods of Setting for Trial In theory, cases can be set for trial on the motion of a party, on the court's own motion, or by agreement of the parties. In practice, it is usually

the attorney's task to request a trial setting, as the judge would be most likely to place an action on the trial calendar only when a case has been pending for a lengthy period of time with no action by a party to have it set for trial. District and county courts often have local rules governing the establishment and call of trial dockets.

Motion for en banc reconsideration TRCP 49 The party is requesting all justices of the court of appeals (not just the 3 judge panel) to reconsider the case. Time to file:

May be filed (with or without a motion for rehearing) within 15 days after the Court of Appeals judgment or appealable order is rendered. Disfavored motion and should not be ordered unless necessary to maintain the uniformity of the Court's decisions or unless extraordinary circumstances require en banc reconsideration.

On the contrary, why would a party decide not to file a motion for rehearing?

Maybe opinion is so screwed up, it makes the TXSC more motivated to take the case to correct.

How does that compare with the outcome when a partially submitted ground (some but not all elements of a ground) is included in the charge without objection or request as to the omitted element?

Might be deemed in favor of the verdict if there is some evidence to support it.

Compensatory Damages and Interest Do you include the judgment as a liability in computing net worth?

Mixed response from appeals courts. No TXSC guidance. Most appeals courts say yes. Appellate security to suspend the enforcement of a money judgment pending appeal, when appellate security is below the cap, is to include "compensatory damages awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in the judgment." Tex. R. App. P. 24.2(a)(1).

Charge Conferences

Most trial judges will call an informal charge conference in chambers a reasonable time after the close of the evidence. This is the latest that counsel should make their requests known to the court. The formal conference will follow in the court room with the court reporter present. This is when requests, objections to the charge and rulings are made of record. -Judge has to afford counsel a reasonable time after the close of evidence to prepare for the charge conference. -Many local rules require counsel to prepare a draft jury charge BEFORE the trial even begins.

What is the proper method for allocating peremptory strikes when antagonism is found? Each co-party should get 6 peremptory challenges How should the lawyer raise the issue of equalizing peremptories?

Motion for Equalization of Peremptory Challenges Make a motion that shows antagonism on a side. The other side's response will be that they are not.

EX: Medmal in which P offers own testimony, plus expert testimony on the causes of the P's harm. P's expert admits that she has not practiced recently in the field and even admits to uncertainty in her opinions and conclusions. Now assume that testimony for the D includes evidence from four practitioner-professors that is clear, direct, positive, and consistent stating that in reasonable medical probability, the D's doctor did not cause the harm to P. If the jury finds for the P, the D may want to move for...

Motion for a New Trial on the grounds that the verdict is supported by "insufficient evidence." (this is NOT a "no evidence" situation")

EX: Medmal case. P's Ws are four highly credible experts who testify consistently and definitely as to the D's lack of care; and what is more, they also testify that none of them is receiving a customary fee for testifying, but instead as a pro bono gesture. The D's evidence, on the other hand, comes from a charlatan who is one step from losing his medical license. In this situation, if the jury finds against the P, and judgment is rendered on the verdict, the P will probably file a....

Motion for new trial on the ground that the verdict is "against the great weight and preponderance of the evidence." The trial judge can grant such a motion, even though the judge could not grant judgment for the P because the P has not proved her case "as a matter of law."

Multiple Parties on 1 Side Cases

Motion to Equalize: In multiple party cases, upon motion of any litigant made prior to the exercise of peremptory challenges, it shall be the duty of the trial judge to equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side. In determining how the challenges should be allocated the court shall consider any matter brought to the attention of the trial judge concerning the ends of justice and the elimination of an unfair advantage.

Notice and Opportunity to Heard

Movant has right to notice and opportunity to be heard before DWOP Failure to provide notice of intent to dismiss requires reversal, unless the court otherwise remedied the problem

What do you do if your opponent makes an untimely jury demand request (within 30 days) that you oppose? What would the court consider (3)?

Move to strike the opponent's jury demand. Opponent will say "I know it's presumptively untimely, but we think it still should be allowed." Court then looks at three factors: 1) whether a resetting on the jury docket would result in unnecessary delay in the court's docket 2) whether a resetting would interfere with the handling of the court's business 3) whether a resetting would cause prejudice to other parties. This is what you argue to get it in the record so the appellate court can consider issue.

How do you know when the weight of the evidence becomes conclusive?

Murky. But sometimes murkiness is your friend in litigation. You preserve these complaints. If we lose at TCT, and we get to appeal, have you've preserved factual sufficiency thru a MNT, heck, maybe I can get two out of three appellate judges to agree and send the case back down. If a party puts on inadmissible evidence, and that's the only proof they have, and you object in a timely, specific way, and the TCT overrules your objection, that is on appeal, "legally incompetent evidence" and the TCT erred in not sustaining your objection; and if the appellate court agrees, and that the's only evidence, you shoehorn that in with a legal sufficiency complaint. There's no competent evidence on this necessary element; it should have been kept out If the evidence presented at trial is so weak as to simply allow the jury to guess (only a "surmise or suspicion" of a fact); that's legally insufficient evidence. Considered "no evidence" even though there's a little there. But the jury's no supposed to speculate; supposed to have a reasonable basis to make a finding. That's legally the same as no evidence; it's legally insufficient evidence and you should move for directed verdict or JNOV. Can do either or both. And you can object to the charge - don't let that ground go to the jury because there's less than a scintilla of proof.

The Objection

Must be quick and clear, not a discussion. Learn the names of the evidence rules so you can state them specifically in objections Avoid general objections about relevance, immaterial, prejudicial, speculative, or just objection If the court sustains a general objection and there exists some legal basis for sustaining it, the appellate court will probably sustain the trial court If you don't object to expert's testimony, chances are you have waived right to object on appeal since you didn't preserve complaint.

What must counsel do to properly preserve its right to appeal when a witness violates "The Rule?"

Must object to testimony on that basis

3. Factual Sufficiency: Insufficient Evidence

Must preserve (in a jury trial) by a timely filed motion for new trial (don't have to do anything in a bench trial) Asserted by the party without the burden of proof claiming the party with the burden of proof has introduced some evidence which, when viewed by itself, would support a finding, but which, when viewed in light of the entire record, is overwhelmed by evidence to the contrary. If the jury finds in favor of the party who had the burden of persuasion and contrary to the weight of the evidence, the trial judge should grant a new trial. If a party makes out a minimal, barebones case that is legally sufficient to go to the jury, but the judge believes that the contrary evidence favoring their opponent outweighs that evidence, the judge may rule that the party has introduced "insufficient evidence" and grant a new trial.

4. Factual Sufficiency: Against the Great Weight and Preponderance of the Evidence

Must preserve (in a jury trial) by a timely filed motion for new trial. (don't have to do anything in a bench trial) Opposite of "insufficient evidence" Asserted by the party with the burden of proof: Party offered evidence that greatly outweighs the opponent's evidence, although it is controverted by some evidence in favor of the opponent. The party with the burden of proof has not quite established the party's case as a matter of law - but the adverse verdict is "against the great weight and preponderance of the evidence." A plaintiff may introduce strong evidence from convincing witnesses while a defendant offers meager evidence that is weak and conflicting. If the jury finds for the defendant, the trial judge cannot grant judgment for the plaintiff because the evidence is not conclusive and thus, the plaintiff is not entitled to a judgment as a "matter of law" - BUT the judge may, by finding that the result is against the "great weight and preponderance" of the evidence, grant a new trial.

Suspending Enforcement of the Judgment Pending Appeal If you're unsuccessful in litigation at the TCT, the other side can start enforcement, collection. So you've got to line up "appellate security" and post bond so the other side cannot start enforcement during appeal.

Must talk to client; investigate what assets might be subject to execution. TCT also has authority to put in receivership; sell assets to enforce judgment. If client doesn't have significant non-exempt assets, then don't worry about it. In TX under the property code we have homestead law - can keep car, home, certain amount of personal property. Federal level - IRAs, 401k, etc. are exempt. Thus, millionaires put a ton into houses to make that money exempt.

How to preserve factual sufficiency complaint in bench trial?

NADA! In a bench trial, you don't have to do anything to preserve a factual sufficiency complaint.

Is an amended motion for new trial timely filed after a preceding motion for new trial has been overruled, as long as it is filed with leave of court and within thirty days of judgment?

NO TRCP 329b - once you've filed a first MNT and it's been ruled on, you've lost the right to file an amended MNT, no matter what the time frame is. Can still do so, but the TCT doesn't have to consider and it doesn't preserve error. A motion for new trial filed within thirty days of judgment, but after a preceding motion for new trial has been overruled, is NOT timely filed and does not extend the trial court's plenary power. The trial court retains plenary power only for thirty more days after the overruling of the timely filed motion for new trial and has discretion during that period to grant a new trial, provided it signs an order granting a new trial while it has plenary power.

If a document is in the record but was not admitted in evidence, is it of probative value?

NO!

May a juror read their own notes taken during the case? Share them with other jurors?

NO! If that happens, it is misconduct, but it would be inadmissible misconduct because it is not an outside influence.

Correct Statement of the Law Does every correct statement of the law belong in the jury charge?

NO, absolutely not

It is proper for counsel to ask a prospective juror if he or she has been convicted or indicted of a felony, misdemeanor, or indictment.

NO, the court can ask, but not counsel.

Lone Star Gas Co. v. Lemond, 897 S.W.2d 755 (Tex. 1995) (per curiam). FACTS: The trial court added the following unnecessary "nudging" sentence to the standard jury charge for marketing defects: "A seller's duty to warn arises only where the dangers to be warned of are reasonably foreseeable and are such that a consumer cannot reasonably be expected to be aware of them." ISSUE: Are nudging instructions always the basis for reversible error?

NO. COURT: that's a correct statement of the law (and P doesn't contend otherwise), but the jury doesn't need to know this to answer question. So improper and Error was preserved. *But was it harmful?* Court: No. Not a close case, so not harmful. NOT "hotly contested" with "sharply conflicting evidence" so FAILS "relaxed harmful error" test.

Informing Jury of the Effect of its Answers Is it permissible for the jury charge to inform the jury of the legal effect of their answers?

NO. Can't say directly. But can condition damages questions on a finding of liability.

Can the admissibility of an expert's opinion be raised for the first time on appeal?

NO. Have to make objections at trial An objection is not needed to preserve a no-evidence challenge to conclusory expert testimony; that testimony is non-probative But objection is required when it challenges underlying methodology, technique or foundational data A complaint that an expert's testimony is unreliable does NOT preserve the complaint that the expert was not qualified to testify.

EX: If P brings case against driver for negligent failure to maintain brakes and speeding (2 separate grounds). If the jury comes back "Yes" on question of negligence without specifying which ground, is that reversible

NO. Just negligence enough is fine under broad form submission of jury question rules. [UNLESS parental termination - where each ground and BIOC have to be submitted separately]

Is a blind or deaf person disqualified to serve as a juror?

NO. Legally blind or deaf person is NOT disqualified but might be disqualified if disability renders unfit to serve. Counties that have economic problems; the county is the one that will retain reader for blind / sign language person for deaf. Can be expensive.

Assume the new pleading is D ran the red light. At trial, Plaintiff seeks to introduce evidence D knew it had bad breaks? Is that evidence admissible over objection ("outside the pleadings")?

NO. Should object to this as outside the pleadings. We got ready for trial based on allegation of running red light.

Is there an incentive for the winning party in a bench trial to ask for findings of fact?

NO. There's nothing better than a presumption on all the issues in your favor So it will always be the losing party that requests findings of fact to see if maybe there are grounds for winning the case on appeal. Maybe there's another ground you could win on. What you're trying to do as the losing party when you ask for findings of fact is to get the trial court to narrow the scope/grounds on which you have to attack on appeal. EX: P that "kitchen sinks" the case with a lot of COAs: breach of contract, quantum meruit, DTPA, misrepresentation, and conspiracy. If no one asks for findings of fact, and there's judgment for the P, as the D counsel you have you undo ALL of those grounds on appeal. So you'd like to get the findings of fact and find out what you lost on. Maybe you only lost on one ground, so you only have to appeal that. So then it's a multiple grounds case you're going to ask for findings.

If the jury argument is incurable, can a complaint about incurable jury argument be made for the first time on appeal? TRCP 324(b)(5)

NOPE

Title of ruling: "REALLY INTERLOCUTORY RULING" but it disposes of all claims and parties. Is it interlocutory?

NOPE. FINAL regardless of language because it actually disposes of all parties and claims.

Benge v. Williams: Doctor accused of two types of negligence: 1) negligent failure to inform of risk, and 2) negligent medical care. P decides not to pursue 1, but expert testified that doctor's failure to get informed consent was negligent. When D's counsel asked for a limiting instruction, it was improperly denied. The TCt provides a jury charge that includes both grounds of negligence in one broad form question. Result?

NOT FEASIBLE to use broad form. Reversible error. Shouldn't have denied limiting instruction. If had used separate questions, not necessarily reversible error. But here, under Casteel, presumed harm.

NOTE 1 - when jurors misunderstand the law, or make illogical decisions that is

NOT for finding juror misconduct, just unfortunate. Erroneous logic, illogical deductions, bizarre reasoning, etc. do not constitute misconduct.

Treatment of Discovery Sanctions: A writ of mandamus is not available when there is an adequate remedy at law by appeal. The Texas Supreme Court has held that discovery orders imposing monetary sanctions ordinarily are

NOT reviewable in a mandamus proceeding because the relator had an adequate remedy by appeal.

The Exception for Orders Appointing Receivers §51.104(a)(2) overrules a motion to vacate an order that appoints a receiver or trustee.

NOTE: Only a decree in which a receiver or trustee is appointed, or that overrules a motion to vacate such an order = Appealable. A refusal to order the appointment of a receiver = Not appealable.

Prospective jurors are required to provide biographical and demographic info about themselves on juror info forms including ...

Name, sex, race, age Residence, Education level, occupation and place of employment Marital status and name, occupation, place of employment of spouse Citizenship status and county of residence The info may be made available only to 1. The judge assigned to hear a case 2. Court personnel 3. Litigants and attorneys in a case Irregularities in the jury selection process resulting from a lack of substantial compliance may require reversal if the irregularities result in a materially unfair trial.

It is improper for counsel to ask a prospective juror a "commitment to a verdict" question.

Namely, counsel may not ask, "Are my facts so bad that you won't find for me?"

Affidavit of Indigence (if needed)

Need to prove up indigency at beginning of the case in accordance with the rules to be excused from paying for the record and court costs. Open Courts guarantee in TXC Court reporter/clerk's office are the ones who won't get paid and will contest if anyone contests.

Cumulative Error The doctrine of cumulative error, as its name implies, is simply that the trial court committed two or more errors, neither perhaps sufficient to require a new trial in and of itself, may coalesce to produce a stronger case on appeal. The courts are conservative in recognizing cumulative error as a separate doctrine.

Nevertheless, "it is well recognized that a number of repeated instances of misconduct during deliberation of a jury though harmless if taken separately, may, in combination, call for a reversal of the verdict." Not easy to argue to trial court that they made so many mistakes you deserve a new trial.

What you get when you win on a factual sufficiency complaint on a MNT?

New trial

What are compensatory damages?

No clear definition, but case law gives some indicators. NOT: Attorney's fees, punitive damages, prejudgment interest, so not required to be secured. POST JUDGMENT INTEREST IS INCLUDED. But only on the part that is included (not attorney's fees, not on punitive, etc.) Damages that are punitive in nature need not be secured. Not just official "punitive damages" but anything punitive in nature.

NOTE 6: Are broad form findings of fact required?

No, broad form findings of fact are not required. Judge has discretion, but they are not mandated. When broad form jury questions were mandated there was no corresponding change to bench trial finding of fact rule.

Weight of the Evidence Points of Error Assume an appeal is prosecuted to the court of appeals by an appellant on the basis of both "no evidence" and "insufficient" points of error and the court of appeals concludes that there is "no evidence," reverses the judgment of the trial court and renders for the appellant. Because it concludes there is "no evidence" of the disputed issue, the court of appeals never reaches the "insufficient evidence" point of error. If the Texas Supreme Court reverses by finding some evidence, does it have jurisdiction to decide the "insufficient evidence" point?

No, it doesn't have jurisdiction of the insufficient evidence point, it's a factual sufficiency complaint. Must remand to court of appeals.

NOTE 3: What if the majority had concluded there was not evidence of a combination between the lawyer, doctor, therapist? Would the argument still have been proper?

No, it would have been an improper attack by counsel on opposing counsel which is prohibited, unless there's evidence to support the attack being made.

Following two cases feature parties that CONDITIONALLY move for judgment; and in both they are able to attack the factual sufficiency of evidence that they conditionally didn't agree with Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319 (Tex. 1984). FACTS: P sued D in neg, strict liability, and DTPA. D maintains the DTPA claim is invalid as the DTPA was not in effect at the time P's cause of action accrued. The jury awarded P $705,852 in damages which the trial court trebled under the DTPA. D moved for Judgment against D (against himself!) on the actual damages but specifically asserted treble damages were not recoverable by the P because the DTPA was not in effect when the claim accrued. D only attacks the treble damage award on appeal. Did D waive its complaint on the treble damages because it moved for judgment on the verdict regarding the actual damages. Why or why not?

No, motion for judgment was conditional. Litton waived its right to complain about the judgment regarding actual damages because it moved for a judgment on the verdict for the court to find them; however, it did NOT waive its complaint regarding treble damages because the motion itself excluded a judgment for treble damages.

St. Louis Fed. Savs. & Loan Assoc. v. Summerhouse Joint Venture,739 S.W.2d 441 (Tex. App.—Corpus Christi 1987, no writ) (per curiam). Neither party nor their counsel received notice of the signing of a final judgment within 20 days of its signing, but had actual knowledge of the judgment during that time. Does Rule 306a(4) apply?

No, the rule only applies if there's no notice NOR ACTUAL KNOWLEDGE. Since appellant had actual knowledge, can't use 306a to extend time for perfecting appeal.

Mahan v. Bost,577 S.W.2d 541 (Tex. Civ. App.—Tyler 1979, no writ) (per curiam). Plaintiff sued 11 Defendants. Summary judgment was granted as to only one Defendant. Is the summary judgment a final appealable judgment?

No. Doesn't dispose of all parties/issues. Case remains as to 10 other Ds. SumJ for 1 D doesn't dispose of all parties/issues. Generally when you have SumJ as to some parties, but not all, it is NOT final, but interlocutory. Mahan reflects on the proposition that ordinarily, a summary judgment that disposes of only some issues or some parties (and is not severed) is interlocutory and therefore NOT a final appealable judgment.

For the three factual sufficiency grounds, do you need to present any new evidence to support a factual sufficiency complaint MNT?

No. Evidence is already presented in trial; don't get to put on new evidence. Unlike in a jury misconduct situation where you need new evidence.

Quashing the Entire Panel - A motion to quash the jury panel in its entirety may be the last resort of counsel who perceives that no amount of peremptory challenges or challenges for cause will result in a fair trial for her client. Authority for this motion exists under TRCP 221 & 222, but the circumstances set forth in the rules are probably inapplicable to most types of modern jury selection systems. *Is a motion to quash the jury panel in its entirety likely to be successful when the panel does not reflect a cross section of society?*

No. In two cases, P's attorneys tried unsuccessfully to quash a jury panel because of under-representation of Mexican-Americans

What about a Factual sufficiency complaint via a MNT; do you need to have a hearing?

No. Not putting on new evidence. Just asking the judge to reflect on the weight of the evidence. Can you get a hearing if you don't need to present evidence? Sure. They'll listen to you. If it's just the argument of counsel.

Is it a good idea to make premature requests for findings? Why or why not?

No. Wait until you see the written judgment. If you win, you don't want written findings, because you'd prefer presumption in your favor on everything.

In re J.F.C., 96 S.W.3d 256 (Tex. 2002). How should an appellate court review a legal sufficiency challenge when the standard of proof is clear and convincing? If there is "more than a scintilla of proof" is that sufficient to meet the clear and convincing burden of proof (as it would be under a preponderance of evidence standard)?

No. traditional legal sufficiency standard, which upholds a finding supported by "anything more than a scintilla of evidence," is inadequate when the United States Constitution requires proof by clear and convincing evidence. Requiring only "anything more than" a mere scintilla of evidence does not equate to clear and convincing evidence. To apply our traditional no evidence standard of review in a parental termination case would not afford the protections inherent in the clear and convincing standard of proof. A parent's rights could be terminated based on "but one slender bit of evidence" as long as the jury was properly instructed on the clear and convincing evidence burden of proof. Our legal sufficiency review, therefore, must take into consideration whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the State bears the burden of proof.

Which party has a right to open and close?

Normally the Plaintiff, unless the Defendant has admitted liability and damages EXCEPT for their affirmative defense. TRCP 269: the party having the BOP has the right to open and close

Mixed Motives Strikes: When Race is not the Sole Reason for striking a juror. Does this violate the EPC?

Not a clear holding in TX. Carlson: I think Davis v. Fisk makes it clear that if it is a factor it is improper. But you can argue otherwise. Davis v. Fisk Electric Co. - equal protection is denied when race is a factor in counsel's exercise of a strike. But can argue this was just dicta.

Do findings count at all if they're in the judgment?

Not if they conflict with express findings. Some appellate courts held that you shouldn't rely on findings in judgment at all. Others said that if there are no other findings outside the judgment, the appellate court should consider. Depends on your appellate court.

Evidence, Remarks Outside the Record, and Inferences from the Evidence Shell Oil v. Reinhart (1963) - A medical report was excluded from evidence in this case and the court instructed the jury not to consider it. The P's attorney asserted in argument that the "treating doctor gave this man a high degree of disability." The only basis for this statement was the hearsay, excluded report.

Not pre se reversible, but this was a close case (10-2 jury) and was hotly contested. It could've been just enough to tip the scales so *the court held this argument to be reversible error*. Hearsay may not always be serious enough to constitute reversible error, but in this case, there was a very sharp divergence in the evidence. Close case, hotly contested. Could have been just enough Hard to get a case reversed because of improper argument because it usually doesn't rise to the case where a jury instruction to disregard isn't enough

What do you do to preserve error when trial court is excluding admissible evidence? EX: the trial granting the MIL, prohibiting D counsel from mentioning the blood transfusion before the jury, and D counsel wants to get that into evidence.

OFFER OF PROOF. *the ruling on the MIL alone DOES NOT PRESERVE ERROR. Must get the offer of proof on the record and get a ruling to preserve objection to MIL ruling* Before the jury is discharged and outside their hearing, make an offer of proof of excluded evidence and obtain a ruling on the record. (Formally referred to an informal bill of exceptions) Texas Rule of Evidence 103 Idea is that you can't "sandbag" the judge. Have to deal with the issue, not just sit back and let the judge make erroneous rulings and only deal with them on appeal. Doesn't work that way.

Procedural Alternatives If appellate reversal is not likely as to some types of improper jury argument, what else can vigorous counsel do? See Note 6.

Object and ask for an instruction to disregard. If the judge admonishes the opposing counsel for improper remarks, it might put your opponent in a worse light for the jury Though side-bar remarks are prohibited, many lawyers join their objections with a jury speech attacking the improper remarks. EX: "Your honor, that remark is improper and counsel knows it is improper. It is a request to the jurors that they ignore their oaths and decide this case on pure prejudice." Anticipate the kinds of improper inferences your opponent may draw and commit the jurors to avoid them in voir dire examination Argue in response to the offending argument. If it is truly improper, illogical or outside the record, sometimes it is effective to simply argue that to the jury. Use a motion in limine.

What if a broad form jury question includes two grounds, one well established under the law and the other a new novel questionable ground. How should opposing counsel proceed?

Object timely that broad form submission is not feasible because the question includes a valid ground of recovery and an invalid ground of recovery. If the trial court submits the two grounds separately and the appellate court determines the second ground is invalid, it can modify and affirm the judgment instead of presuming harm and reversing and remanding for a new trial.

Preservation of Error How does counsel preserve error when alleging that a jury question contains both a valid and invalid ground in the broad form submission?

Object to the language (refer to specific language) in X jury charge because it uses broad form and broad form is *not feasible* in this case. Question ______ commingles valid and invalid theories of liability in a single question and if the jury answers the question affirmatively, the court will not be able to determine whether the jury based its answer its answer on the the valid or the invalid theory.. If questions are submitted in a manner that allows an appellate court to determine jury's verdict was actually based on a valid theory, the error may be harmless. A broad form question with both grounds would not allow that determination.

How do you preserve error and prevent trial by consent?

Object when that evidence is sought to be introduced as being "outside the pleadings" and get a ruling.

What may counsel do pre-trial to object to the qualifications of opposing side's expert?

Often raised as part of a MSJ or pre-trial motion to exclude testimony In expedited trial, an opposing party may only challenge the admissibility of expert testimony as an objection to MSJ evidence or during the trial on the merits

Legislative Continuance

On motion, a "legislative" continuance of a trial setting is *mandatory* 30 days before, all during, and 30 days after a legislative session when a party or attorney in the case is a member of the legislature. Exception: If a legislator is employed in the case within 30 days of trial (or for a hearing on a temporary restraining order), continuance is *discretionary* with the trial court. CPRC 30.003

Timing of Objections and Requests Supposed to make any objections/requests before jury charge is read to jury. After charge conference is over, the jury is called back, and the TCt judge is required to read the whole charge to the jury. Followed by closing arguments, 99% of time P goes first and last since has the BOP, with the D in between.

Once the case goes to the jury, the parties have no right to complain about the charge or request changes. *But the court still has the obligation to respond to the jury, and make changes to the charge, particularly if the charge is nonsensical.*

Small Cases

One consequence of the exceeds $250 requirement is that in a case originating in a justice court that involves less than $250, the judgment of a county court following a trial de novo cannot be further appealed. If less than $250 is involved, you can't appeal trial de novo to CCC so the JP's ruling is final. If more than $250 is involved in JP, you can appeal via trial de novo to CCC. Can never appeal directly from JP to court of appeals because JPs don't have a record, no court reporter. Court of appeals decides case based on a record.

Who needs to file a TXSC petition for review?

Only a party who is aggrieved by the judgment of the court of appeals may prosecute an appeal to the Texas Supreme Court. This means that the party failed to receive some part of the relief sought in the court of appeals. A party may be aggrieved by the nature of the court of appeals' judgment if the party sought reversal and rendition of the trial court's judgment in the court of appeals but received reversal and remand instead. Any party seeking a more favorable judgment than the court of appeals afforded, must timely file their own petition for review. EX: you got reverse and remand, but wanted reverse and rendition.

Signatures When the verdict is unanimous, who must sign?

Only presiding juror

Lay witnesses There must be a rational connection between the opinion and the facts on which it is based, that is, the opinion must be one that a normal person would form from those perceptions. Texas courts allowed lay witness opinion testimony under the "shorthand rendition of the facts" or "collective facts" exception. Examples of this type of testimony:

Opinions that a person's manner was friendly. Opinions that a person seemed dangerous, very strong, or of fierce temper. Opinions that someone appeared to be sick, disabled, or drunk. Opinions that an engine was running at an estimated speed. Opinions that a color or smell was similar to another familiar color or smell

Denials of Summary Judgment Motions The denial of a motion for summary judgment determines nothing on the merits of the controversy, only that summary adjudication is not appropriate.

Orders denying summary judgment motions are not final and usually NOT appealable. Even after a final judgment has been rendered in a case, the denial of a summary judgment during the pretrial phase of the litigation is NOT appealable. § 51.014(a)(5) however makes appealable a denial of a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. *denial of sovereign or qualified immunity IS immediately appealable* "Person" Although § 51.015(a)(5) does not define the term "person," other statutory provisions make it clear that "person" encompasses governments and governmental subdivisions. Code Construction Act, Gov. C. ch 311: defining "person" to include any government or governmental subdivision or agency. "Immunity" "Immunity" is not limited to the defense of qualified or official immunity. "Immunity" extends to the absolute defense available to employees under the Tort Claims Act, even though the statute does not expressly use that term.

Summary Judgments Purporting to be Final

Ordinarily a summary judgment that disposes of only some issues or some parties is interlocutory and therefore not an appealable judgment.

Timing of Motion JNOV

Ordinarily, the motion for judgment notwithstanding the verdict is filed and argued after the verdict but BEFORE judgment is rendered. There is case authority holding that a motion JNOV may be filed and considered after rendition of judgment, but before the court loses its plenary power over its judgment. See Tex. R. Civ. P. 329b. REMEMBER: Judgment need not, and usually is not, rendered on the day of trial. Judgment is not usually rendered at the conclusion of evidence and discharge of the jury. Or at the end of the presentation of evidence at a bench trial. Usually that's the end of the proof stage, and the court will set a hearing to consider the appropriate judgment in the case. Rather, return of the jury's verdict signals the end of the trial process, the jury is discharged and a date is set in the future for the hearing of motions concerning the appropriate judgment to be entered.

The Motion for Judgment on the Verdict

Ordinarily, the party who prevailed before the jury will be the one to request the court to render a judgment on the verdict. Sometimes, however, the losing party will want the court to render a judgment, if only to provide a judgment that can be appealed.

TRCP 94 lists for example-statute of limitations, etc.

Other affirmative defenses: *Accord and satisfaction*: already agreed to take a lesser sum of money in lieu of suit. *Arbitration and award*: if you go to arbitration and get an award, you can't then sue. EX: Carlson pays guy $200 check, on back of check writes "this is in full satisfaction...." *SOF*: can't bring in a COA for a sale of goods over $500 unless there's a writing signed by party to be charged. If you plead affirmative defense, you get to go to the jury with the question. An inferential rebuttal defense rebuts an element of an opponent's claim by an inconsistent factual theory. See text 4.01[C][3] Does a party have a right to a jury question on an affirmative defense, assuming raised by the pleadings and the proof? An inferential rebuttal defense? NOPE.

This Court has never wavered from the principle that appellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal. We have repeatedly held that a court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction.

Our decisions reflect the policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects. we have instructed the courts of appeals to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the [*617] right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule

EX: Medmal case, where damages are conclusively stipulated between the parties, so that there is nothing to submit to the jury concerning them. Also, the P's uncontroverted proof shows conclusively that the D left the sponge inside the P's body before closing the incision. Expert testimony establishes that this oversight breached the standard of care and was the proximate cause of the P's injuries. Defendant Doctor admits he left sponge inside, breached duty of care, and caused P's injuries. What motion by P at close of evidence?

P is entitled to an instructed verdict (or JNOV if the case went to the jury) on the ground that all elements of the P's claims are established "as a matter of law."

Simple Example of how these 4 motions might work in practice:

P sues one D. D claims the P's evidence does not make out a sufficient case to go to the jury D should move for an instructed verdict after the P rests or closes. If the question is close, the court will probably overrule the motion and allow the jury to decide the case (knowing it can always grant a subsequent JNOV) After the jury's verdict in the P's favor, the P may make a motion for judgment. D, in opposition, will likely move for JNOV. If judgment is granted to the P, the D will then make a motion for a new trial on the theory that the P's evidence was factually insufficient when considered in light of all the evidence.

Consequences of Failure to Set Case for Trial

P's failure to act with diligence in setting case for trial may result in *dismissal for want of prosecution.*

Texas Causes of Action - Westlaw book that lists the necessary elements as determined by the court or the statute and the highest authority supporting it.

PJC is good too. REALLY good idea to start here when you are first figuring out your case.

Clarifying Abstract Legal Jargon - there are a few cases hinting that the court may prevent an attorney from going over the court's charge and explaining it in simpler terminology because the law is to come from the court.

Pennzoil case: Can't try to clarify "agreement" because that has a common meaning. Counsel tried to get jury charge that defined "agreement" as a "contract" but the court refused since "agreement" has a common meaning.

Former Juror

Person who served as a juror in a former trial of the same case is disqualified to serve on retrial. Person is also disqualified if served as juror on another case involving the same questions of fact. But if a juror has been a member of a grand jury that indicted a party based on the same facts involved in the subject civil action, such former service is NOT grounds for disqualification. Bias or prejudice must be shown. These challenges for cause must happen prior to the use of peremptory strikes.

On the vote of 4 justices:

Petition for Review is granted. Otherwise, it is "denied"

Original Proceedings in Comparison to Appeals

Petitions for issuance of writs of mandamus, habeas corpus, and similar writs by appellate courts are NOT appeals; they are "original" proceedings, just as a trial in a TCT is an original proceeding. Original proceedings are not limited to review of "final" orders. Standard for relief is much more stringent in an original proceeding than an ordinary appeal.

Remedies for Batson Violation?

Possible remedies: Usually, the judge will discharge the jury panel and start over or Disallowance of the discriminatory challenges and resumption of the jury selection process after reinstatement of the improperly challenged jurors. Undo the line drawn through that person's name and then call the first 12.

[4] Order and Nature of Proof

Presentation of the evidence. Party with BOP "on the whole case" goes first (usually P), calling his case-in-chief witnesses Opposing party follows. Once the D rests (ends its presentation of evidence) the P is allowed to present rebuttal evidence. The D can rebut as well, and it goes back and forth until it's over. The evidence is "closed" when neither side has further evidence to present If there are multiple parties involved on a side, the order is up to court's discretion, but usually agreed upon between the parties Evidence can take many forms and be stipulated (agreement by the parties on facts to remove them from controversy)

New Trial Because of Misconduct of Jury, Party, Attorney, Court Officer, or Third Party

Presenting matters not yet in the record to support motion for new trial; THUS NEW EVIDENCE IS REQUIRED TO SUPPORT MNT For example, how does counsel get proof of jury misconduct into the record so that it can be considered on appeal (and by the trial judge)? *Jury misconduct is usually developed at an evidentiary hearing on a motion for new trial. If you must prove facts to obtain a new trial request a hearing to present your proof and get a timely written ruling.* Remember, under Evidence Rule 606 - juror misconduct MUST be from an "outside influence" and not the jurors themselves. TRCP 327: different rule for MNT based on juror misconduct than other grounds for MNT. DIFFERENCE: *Juror misconduct MUST be supported by affidavit that shows juror misconduct based on outside influence.*

What is the effect of claimant making a jury demand at least 30 days before the case is set for trial on the non-jury trial?

Presumptively timely, but a rebuttable presumption

Pleading Requirements How specific must you plead?

Pretty specific! Texas rules require parties to plead with sufficient particularity to give fair notice of the legal and factual basis to support their grounds (of recovery or defense).

Historical Development and Pervasive Issues [1] Pre-1973: Specific Questions (AKA "Special Issues")

Prior to September 1, 1973, civil cases in district and county courts were submitted by means of relatively specific questions called "special issues" accompanied by definitions of legal and technical terms and explanatory instructions. Jury was asked a question on each and every element. So you ended up with really long jury charges with lots of questions, especially if there were multiple parties. Jury couldn't figure out which party is going to win. Jurors got frustrated. Number of appellate reversals was very high, because jury answers were not always consistent. The special issue method required the jury to focus on the controlling legal and factual elements of grounds of recovery or defense by asking them specific questions that called for individual answers on each element of a ground.

Predicating Damage Questions - TRCP 277, as amended in 1988, expressly states that "the court may predicate damages question or questions upon affirmative findings of liability.

Prior to the amendment, it was error to submit an issue or jury question conditionally when the probable effect was to inform the jury as to the judgment that would result from its verdict. Today it is clearly permissible to condition a jury's response to the damage issue on affirmative findings of liability.

When should the allocation decision be made?

Prior to use of peremptory challenges

Usual Harmful Error Test:

Probably resulted in an improper judgment.

Bias or Prejudice

Probably the most common ground for a challenge for cause is a claim that a particular juror is biased or prejudiced against a party or the party's case. But the existence of such unequivocal bias or prejudice once established, disqualifies a juror as a matter of law and removes all discretion form the trial judge. "The relevant inquiry is not where jurors start, but where they are likely to end!" Can be bias/prejudice against a party, but ALSO against the type of case (medmal) or damages (punitive) Rather strike for cause, because then you don't have to use limited peremptory challenge

Equitable Motions for New Trial Hence, a defaulted D seeking a new trial by an equitable motion for new trial must prove the failures leading to default were NOT intentional or the result of conscious indifference.

Proof can be made by factual affidavits filed in support of the motion for a new trial when the factual assertions, if true, negate intentionally or consciously indifferent conduct by the D and the factual allegations are not controverted by the P. But if the evidence in the record shows that the factual assertions are controverted, the TCt bases its decision on the entire record, including live testimony. Even a weak explanation or slight excuse may negate intentional or consciously indifferent conduct. (EX: "I forgot I was served") By contrast the meritorious defense component is "set up" by allegations of facts in the motion for new trial that would constitute a legal defense, if proved at trial. Finally, the third element requires proof that the granting of a new trial will occasion no delay or otherwise cause injury to the P, which is usually made by offering: 1) to go to trial immediately, and 2) reimburse fees and expenses incurred in obtaining the default judgment.

Preparation and Use of Proof Outlines

Proof outline - set forth every element of your and other side's COA and defense. Note as the trial proceeds if proof have been for each and every element. Reliance upon good fortune can be minimized by preparation of a proof outline before trial, detailing the elements of each cause of action to be proved (for both the P and D) and the evidence that is to be presented to establish each element. Proof outlines are checklists usually of elements of a partys' ground and the proof (testimony, documents, etc.) that counsel needs to ensure is admitted to make out that ground.

Announcements at Docket Calls After a case has been set for trial, the next responsibility of counsel ordinarily is to attend the docket call of the court where the case is pending. Sometimes called the "sounding of the docket" Usually takes place on Thursday or Friday of the week preceding the week in which the case is set for trial. But check local rules. Some counties allow appearance by phone, others require in person

Purpose of the docket call is to obtain accurate info from counsel as to whether each party is, in fact, ready for trial. States "ready" or "not ready" In some counties, the docket is not called, and the setting of a case for trial without objection is considered to indicate all parties are ready for trial, unless a timely motion for continuance is filed. The docket call is frequently the last point before trial when motions for continuance may be made as a matter of course, and when agreements of the parties to pass the case will be accepted by the court. A "ready" announcement makes it difficult to obtain a continuance. In some counties, "not ready" requires a written motion for continuance. Whether a party will be announced to withdraw an announcement of ready is within court's discretion

Missing jury question you rely on - request or objection?

REQUEST

What is the discretion of the trial court to correct an error in the charge discovered while the jury is deliberating? What procedures must be followed? TRCP 286

RULE 286. JURY MY RECEIVE FURTHER INSTRUCTIONS After having retired, the jury may receive further instructions from the court touching any matter of law, either at their request or upon the court's own motion. For this purpose they shall appear before the judge in open court in a body, and if the instruction is being given at their request, they shall through their presiding juror state to the court, in writing, the particular question of law upon which they desire further instruction. The court shall give such instruction in writing, but no instruction shall be given except in conformity with the rules relating to the charge. Additional argument may be allowed in the discretion of the court. So, what's supposed to happen, is the jury sends through the bailiff the questions it has. Counsel can stay in the courtroom while the jury is deliberating. A lot of judges have a 15 minute rule: if the jury asks a question, I will give you 15 minutes notice to come back. What the court should have discussed with the lawyers, had a minicharge conference on new charge, signed off on it. Bring the jury back into the courtroom, where the court reporter is located, then the court is to read them the additional instructions and give them the supplemental charge to take with them to deliberate. This makes sure that all counsel is informed, jurors are informed, and that there's a record made of the supplemental charge conference.

Verburgt v. Dorner,959 S.W.2d 615 (Tex. 1997). FACTS: P sues 3 Ds. P nonsuits 1 D, then TCT granted summary judgment for remaining Ds. Attorney miscalculates time to file a notice of appeal. (cost bond) Didn't file a motion for extension, but DID file notice of appeal within the time of an extension. ACt dismissed for want of jx. ISSUE: Whether the ACt erred in dismissing for want of jx.

RULE: A motion for extension of time is necessarily implied when an appellant acting in good faith files a notice of appeal beyond the deadline, but within the 15 day period in which the appellant would be entitled to move to extend the filing deadline.

State v. Landry, 793 S.W.2d 281, 282 (Tex. App.—Houston [14th Dist.] 1990) FACTS: State of Texas wanted to build a highway; went to trial to condemn land for the highway. But during trial Texas voluntarily dismissed (nonsuit) a condemnation proceeding after determining that a highway facility could be redesigned to eliminate the need for the subject property. The property owners argued that under the Property Code, when there is a condemnation proceeding and then a subsequent dismissal by the govt, the landowner is entitled to recover reasonable attorney fees and costs incurred in defending the eminent domain action prior to dismissal. Reasonable and necessary attorneys fees ARE a fact question in which you have a right to a jury. But here, there was no timely demand or payment of the jury fee, so there was a waiver of the constitutional right to a trial by jury.

RULE: Right to jury may be waived by failure to object to proceeding to trial without a jury. HELD: The court ruled that, pursuant to TRCP 216, upon the proper and timely request following a voluntary dismissal, a party was entitled to a jury trial to determine the property owners' litigation expenses. However, the court found that in the instant case relator (Texas) had failed to file a timely request for a jury, thus, the requested writs of mandamus and prohibition were denied.

Truco Props., Inc. v. Charlton, 749 S.W.2d 893 (Tex. App.—Texarkana 1988, writ denied). FACTS: Mother claimed that she was injured on the job. Her daughter did not testify, didn't want to get involved. Daughter had talked to someone else (Phillips) that she fell out of bed drunk. That conversation is inadmissible hearsay. D had no expectation the the daughter would testify to facts that would advance its cause in its favor. D wanted to impeach the daughter by the testimony of another W (Phillips) that would testify that the daughter told the W that the P fell out of bed drunk and hurt herself. ISSUE: The question raised by Truco is whether the witness may be called solely for the purpose of later impeachment by the use of otherwise inadmissible hearsay.

RULE: can't call a witness just to impeach them through the use of inadmissible hearsay as a way to get that inadmissible hearsay evidence in front of the jury A witness may be impeached by his earlier inconsistent statement, Tex. R. Evid. 613(a), and pursuant to Tex. R. Evid. 607, a party may impeach his or her own witness. This appears to be an effort to admit testimony through the back door that could not otherwise be allowed. At the most, the testimony of Phillips would be admissible for impeachment purposes only, and not to advance Truco's case-in-chief. Truco is attempting to place testimony received solely for impeachment purposes on the same level as testimony proof received as part of the case-in-chief. Impeachment testimony is admissible to show that a witness is not trustworthy, but it cannot be used for other purposes unless otherwise admissible on some other ground.

While a peremptory strike of a potential juror may generally be for any reason, certain reasons are improper under the United States Constitution when the sole motivation for exercising the strike is based on:

Race Ethnicity Gender

NOTE 4: Other statutes sometimes authorize direct appeal to TX.

Rare. EX: Passed a statute specifically to hear redistricting contests because the Austin courts were liberal. Another run now at creating "business courts" Don't want "whacked out liberal" elected judges dealing with that. Not really a good argument to support.

Age, wealth, or education = level of scrutiny?

Rational basis EX: can reserve SS benefits to over 65 EX: wealthy can pay more in taxes EX: can discriminate in job hiring based on educational background. No PoliSci majors hired at NASA

What are the policy reasons behind the submission of broad-form questions?

Reduce conflicting jury answers, thus reducing appeals and avoiding retrials Expedites trials by simplifying the charge conference and making questions easier for the jury to comprehend and answer

Larson v. Cactus Util. Co., 730 S.W.2d 640 (Tex. 1987). A court of appeals may also suggest a remittitur when the only problem is the sufficiency of the evidence to support the damage award. The suggested remittitur should comport with the evidence on damages and if accepted is in lieu of reversing and remanding for a new trial. There must be some damages amount that is solidly supported by the weight of the evidence. If you want to contest only the amount of damages, make a factual sufficiency complaint as to damages in motion for new trial. A court of appeals, in ordering a remittitur (which again, is still just a suggestion), should do so on an *insufficiency of the evidence standard and NOT an abuse of discretion standard.* Why?

Remittitur appellate review is based on sufficiency of evidence NOT abuse of discretion. A court of appeals should uphold a trial court remittitur only when the evidence is factually insufficient to support the jury verdict and the evidence supports the remitted amount. To review trial court remittiturs under a different standard and continue the "abuse of discretion" test conflicts with a system that allows juries to set damages. The abuse of discretion standard robs of its vitality the constitutionally mandated right of trial by jury. Under an abuse of discretion review, so long as a reduction does not rise to a level shocking the court of appeals' conscience, the trial judge can freely reduce jury awards. Such review effectively allows jurists' determinations to be substituted for those of the jury, a practice condemned since Carter v. Carter, 5 Tex. 93 (1849). Additionally, employing differing standards leads to the inconsistent result permitting trial court remittiturs to stand when the same orders would have been improper coming from a court of appeals.

In theory, when you move for an instructed verdict, the other side can Move to

Reopen Evidence to put on legally sufficient evidence on that element. But the trial courts rarely do so.

Motion for New Trial

Requests the court to set aside the judgment and grant a new trial, on the ground that the trial just completed is tainted with error or on equitable grounds. One ground: The verdict on which the judgment rests is heavily against the weight of the evidence, even though the jury findings are supported by some evidence. (Factual sufficiency complaint) If a litigant puts on some competent evidence (more than a scintilla - jury's not guessing) and their opponent puts a huge amount of contrary evidence. EX: 1 interested W vs. 4 disinterested Ws for D. The weight of the evidence is heavy on D's side, you STILL get to go to the jury, because it is NOT conclusive. KEY: just because you have enough evidence to go to the jury, does NOT mean that you have enough evidence to hang on to a jury finding.

Parties in an original proceeding:

Respondent v. Relator (party requesting relief)

After finding a "clear abuse of discretion," the other requirement a relator must meet is to show that it has no adequate remedy by appeal. The operative word, "adequate", has no comprehensive definition; it is simply a proxy for

the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts. These considerations implicate both public and private interests.

Expedited Trial Settings

Rule 169: Civil cases filed after Jan 1, 2021 in which all claimants, other than counter-claimants, seek only monetary relief aggregating $250k or less (just increased from $100k), *including* damages of any kind, penalties, costs, expenses, pre-judgment interest and attorney's fees (so true value of case could be much higher than $250k) are expedited actions and proceed on an accelerated timetable prescribed in Rule 169. On any party's request, the trial court must set a case for trial within 90 days after Level 1 discovery period However, the reality is that cases often don't get tried by that deadline this rule affects a great many aspects of civil procedure at trial, including discovery period, etc. Any other rule in conflict with 169 is overridden. --The whole idea is make these cases faster and cheaper to litigate. New rules now: if amount in controversy is $250k or less (not including attorney's fees, punitive damages, etc.) & only monetary relief. Could be a $400k case. Only applies to cases filed Jan 1, 2020. Another set of limits for March 2013. (limit set at $100k, including damages)

NOTE 4: Necessarily Referable -

Rule 279 only permits a deemed finding when the elements present in the charge are "necessarily referable" to the missing elements. When multiple claims have overlapping elements (e.g. damages), the submission of an element as part of one claim is NOT likely to be necessarily referable to the otherwise omitted claim. Have to be an astute lawyer to find a deemed finding.

Sudderth v. Howard, 560 S.W.2d 511 (Tex. Civ. App.—Amarillo 1977, writ ref'd n.r.e.). ISSUE: How are partially submitted grounds different from totally omitted grounds? FACTS: Sudderth is in trouble with the IRS who placed tax lien on his farm. Sudderth makes a contract for deed sale with option to repurchase that is actually a loan (obfuscation to avoid homestead and usury laws) with Howard. Howard ignores the option to repurchase notice, and Sudderth sues for (1) right to cancel the deed and (2) usury. The charge (in 1977) didn't use broad form submission - it only asked about cancelling the deed. No element regarding usury, and no objection/request for this totally omitted ground. What result?

Rule 279: that's a waiver of that ground of recovery, even if there is some evidence for the ground. That's probably malpractice; you've got evidence, but you didn't get your ground before the jury.

Levit v. Adams, 850 S.W.2d 469 (Tex. 1993) (per curiam). After a dismissal for want of prosecution (DWOP), a P may file a verified Motion to Reinstate the case on the docket within 30 days of the date the dismissal was signed to extend appellate post-judgment timetables. Plaintiff first learned of the DWOP 91 days after the day the dwop order was signed, Rule 306a(4) does not apply. Plaintiff sought relief by bill of review. Equitable bill of review - can seek relief up to 4 years after judgment; but very hard to get. But court error is one of those grounds (such as the clerk didn't send out notice). To obtain relief via a bill of review a party must have exercised due diligence in pursuing all adequate legal remedies.

Rule 306a(4) cannot serve to extend a trial court's plenary power or appellate deadlines when a party learns of a final judgment more than ninety days after it is signed. HELD: 91st day is too late to use motion to reinstate or use normal appeal. Too late even without notice. Have to use Bill of Review instead.

Jury questionnaires?

Rules are silent when it comes to jury questionnaires in TX. So it is a matter of discretion with the court whether counsel can give jury questionnaires. Sometimes parties work with jury consultants who might want to do questionnaires.

Reinstatement standards

Several courts of appeal have held that the standard for reinstating a case under 165a(3) applies only to dismissal for failure to appear Under this approach, if the case was dismissed for failure to prosecute with due diligence under the court's inherent power, the reinstatement standard is whether the party prosecuted it with due diligence rather than the conscious indifference standard under 165a(3). Similarly, if a case has been dismissed under 165a(2) for failure to prosecute the suit under the time standards, the party must show "good cause" for failure to meet the standards.

Severance Severance as to parties (more often than not) or as to claims. Severance of claims against multiple parties is proper when

the causes of action are not so interwoven they can be separated without unfairness to the parties. Severance = splits a lawsuit into multiple independent lawsuits that proceed under separate docket numbers. Ex: 6894 --> 6894a + 6894b Trial court has discretion to grant a severance as to multiple parties or to multiple claims.

In counties which have 3 or more district courts, the jurors are summoned to appear before the judge whose turn it is to preside in ..

the central jury room.

No Notice of Trial Court's Judgment TRCP 306a Parties are entitled to notice from the clerk anytime a final judgment or appealable order is signed. If the party or their lawyer has no notice or actual knowledge that final judgment (or appealable order) was signed after 20 days from the date it was signed, then

the clock starts on the day the party or lawyer first receives notice or knowledge, but in no event shall that time period begin after 90 days from the date of the order or judgment signing.

Lyles v. Tex. Emp'rs' Ins. Ass'n, 405 S.W.2d 725 (Tex. Civ. App.—Waco 1966, writ ref'd n.r.e.). ISSUE: Court's charge to the jury on the "producing cause" of death. P's requested definition of "producing cause" was refused because the court already had a definition. P failed to object before submission of the charge to the jury, waiving objection under Rule 274. What were the principles the court of appeals highlighted in Lyles?

Should have made a specific objection, NOT a request. Therefore did not preserve error. A request is not an alternative to an objection to preserve a complaint. Think about it: As a judge, if you've already got a definition, it's not really very helpful for counsel to offer a different definition in a request. More helpful to get a specific objection regarding the specific defect they have with the definition you are working with. The objection is more helpful than just getting another definition, because they have to look at the two definitions and figure out what the problem is. This is very hypertechnical aspect of preservation of error. This changed when we got to Payne (1992) below

Often courts will require jury charge draft to be submitted long before trial.

Should have research on why your jury charge is the one the court should go with. Worst time to think about jury charge is during a trial when you are mentally exhausted. Big law firms will often bring in specialists to argue jury charges on big cases. If the court instructs the jury incorrectly on the law, it is fertile grounds for reversal.

Sometimes the pleadings are antagonistic, but at voir dire they will take a different approach and unite against the other side. What should opposing counsel do?

Should move for a reallocation of strikes. Should consider both the pleadings and the trial position. The parties don't have to be seeking affirmative relief against each other to be on different sides. Can still get additional peremptory strikes even without seeking relief against each other. Just have to show antagonistic positions.

Requests for Admissions

Similar to stipulation, except happens in discovery Admissions made in response to requests for admissions are binding regardless whether they are offered or received in evidence, but make sure admissions are in the record for appellate purposes. (Generally don't file discovery responses with court) Once admitted, the matter is conclusively established. The admission has the effect of removing the matter admitted from the factfinder. Good idea to have the court advise the jury of the admission. EX: breach of contract case; admission that there was in fact a contract. So juries aren't wondering about that issue.

Under Evidence Rule 606, (mirrored by TRCP 327b), a juror may not testify about internal jury deliberations absent an outside influence.

Simply cannot get into evidence the jury misconduct. After jury is discharged after case, if juror discloses misconduct that is not due to outside influence, that's inadmissible. (EX: we just spun a bottle to decide X)

Not being paid is a basis to seek a withdrawal, but the court may or may not allow you to withdraw. It is within their discretion.

So don't take a case unless you think through whether you want this client for keeps. Sometimes you find out that the client has gone through several lawyers before you. Judges do not like to litigate cases with pro se litigants. They don't know what they are doing. The court is supposed to be neutral arbiter. Not supposed to be helping along a pro se party; puts the court in an awkward position. So if you don't have substituting counsel, they may deny because they don't want to deal with pro se party. Particularly if it is nearing trial. Court is more likely to grant withdrawal if they can read between the lines that you are withdrawing because the client will perjure himself (can't say directly because of attorney-client privilege)

A Motion for New Trial that is Granted Cannot Assail a Subsequently Entered Judgment A motion for new trial that is granted cannot assail a later-signed judgment and does not extend the time to perfect an appeal. (So file new motion for new trial if want one after any later amended judgment is signed)

So, you file a MNT, there's a new trial that leads to a new judgment. Your former MNT doesn't address a new judgment. Bottom line: file a new MNT after a new judgment.

*Is there a tactical advantage to going first?*

Some argue that jurors make up their mind quickly (psychologists), and then are just testing evidence against their preconceived notions. If you can shape that initial conclusion, pretty powerful. However, generally speaking, you would never admit anything just to go first. *When would you want to admit liability/damages?* Maybe if the facts are so obvious/terrible for the P that they don't want to go through all of that because it will get jury so pissed off that they would hold it against you. Just go to trying to prove affirmative defenses.

Accordingly, what type of proof must be presented to be able to get the issue before jury?

Some competent evidence presenting a fact question for the jury to decide.

Interpreting the Court's Mixed Messages: Lower courts have had mixed results in deciding preservation issues under the Payne test.

Some courts of appeals find that it doesn't matter whether a request or an objection is used as long as the record reflects the TCt understood or should have understood the complaint Other courts (Corpus Christi) requires that objections to broad-form questions must be accompanied by suggested instructions and definitions when the objection does not provide sufficient info.

Continuance for Want of Testimony (Missing Witness)

Sometimes a party needs a continuance not because her lawyer is unavailable but because an important witness is not available or cannot be located. This section deals with requests for continuance made because a party's witness cannot appear at the case's current setting. Notice the importance of compliance with technical requirements. If you identify who your witnesses are at the pretrial stage (required as part of discovery), and you know one of your witnesses (or the other side's witnesses) reside more than 150 miles from the county of suit, that witness is outside the subpoena power of the court.

Examination of the "Whenever Feasible" Standard: Damage Questions:

Sometimes different COAs have different measures of damages. EX: You don't get punitive for breach of contract, but for DTPA might get treble DAS, tort might get punitive, etc. So you don't want to combine damages into a single broad form damage question. Need to know which COA's damages is the ground for damages. You can't double recover for the same wrong ("one satisfaction" rule) Need to know what the separate damages would be. Crown Life v. Casteel - presumed harm when there is a commingling of a valid ground of recovery and an invalid ground, because appeals court can't tell. Harris County v. Smith - if there is any question regarding an element, cannot submit in broad form.

Motions to be Verified

Sometimes the rules require a motion to be verified (such as a Motion to Reinstate) or to be supported by affidavit.

But what is the "One Test"? It is not always easy to predict when the new Payne test is met or not, the nature of an error.

Sometimes the test is met by a boilerplate objection, other times the TXSC has rejected attempts to preserve error that seemed to meet the reasonable awareness requirement. Court has explained that "trial court awareness is the key." Must make it clear at the charge conference of your objection/request and get a ruling. More recently in Burbage (2014), the TXSC - as a general rule, preservation of a complaint concerning the jury charge for appellate review requires a timely objection that is sufficiently specific to make the trial court aware of the complaint (unless the specific grounds were apparent from the context) and a ruling Best way to make the trial judge aware of the complaint is to object to the legal or factual validity of the flawed liability question AND to the form of the damages question.

Disregarding Specific Jury Findings:

Sometimes you like some findings of the jury but not all. Move to disregard specific jury findings that are not supported by legally sufficient evidence. The standard for a JNOV/Disregard Jury Findings is the same as an instructed verdict: no evidence/less than a scintilla/conclusive evidence/legally can't recover on that basis. All matter of law contentions.

Preferential Settings

Special setting of a case is a setting at an earlier or different time than would occur if standard setting procedures were followed. TX courts must give preference to hearings and trials of certain types of cases: Temporary injunctions Certain criminal actions Election contests Family protection orders Appeals of final rulings and decisions of TX Workers' Compensation Commission and claims under Federal Employers' Liability Act and the Jones Act; Appeals of final orders of the commissioner of the General Land Office Certain specified Penal Code violations Code also creates other priorities of a more general nature: 1. Precedence should be given to matters in which delay will cause physical or economic harm 2. Matters involving substantial substantive or constitutional rights 3. Matters that greatly concern public welfare Local rules often deal with obtaining special setting. EX: judge may have discretion to grant special setting if more than ordinary difficulty would be encountered in having all counsel and witnesses available when the case is reached in regular order. Written application or motion is ordinarily required to get special setting

Preservation of Error in Evidence Rulings What do you do to preserve error when inadmissible evidence is offered into evidence?

Specific spontaneous objection and obtain a ruling on the record. Texas Rule of Evidence 103 A lot of time lawyers will make a "speaking objection" - "Objection your honor, counsel knows that this evidence is inadmissible because...." Trying to get the jury to think that the evidence is improper and they should ignore it. However, it is really not proper to make speaking objections. You'll often hear trial judges get frustrated with that and ask counsel to simply object and say the rule number they are relying upon.

How to preserve error when you think trial judge is improperly barring voir dire questions:

State in the record the type of questions you would ask. Caselaw says you don't have to give the judge the exact VD questions, but you may (that will preserve error) Important because if you don't preserve error, the appeals court can't review it. *Purpose of preservation of error doctrine*: you don't want to "sandbag" trial judge; have to give them a chance to consider your objection so they can correct if they agree with you. Such a requirement provides the trial court with an opportunity to cure any error, obviating the need for later appellate review, and further allows an appellate court to examine the trial court's decision in context to determine whether error exists, and if so, whether harm resulted. A timely, specific presentation to the trial court of the manner of an inquiry is important because it is difficult to evaluate after a trial whether the trial court's denial of an inquiry caused a biased juror to be seated on the jury or to evaluate what additional information a party could have adduced for the exercise of peremptory strikes

Form of Statement of Points The Texas Supreme Court has rejected a "hypertechnical" interpretation of the predecessor of Appellate Rule 34.6(c) "which would require a statement of points to be relied upon on appeal to be filed in rather than with appellant's request for a partial statement of facts." Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991).

Strict Compliance not Required Although many courts of appeals have required strict compliance with all of Appellate Rule 34.6's provisions, the Texas Supreme Court has consistently taken a more flexible approach. Ex. Appellant is tardy designating its appellate complaints. When a rigid application of Rule 34.6 would result in denying review on the merits, when the appellee has not established any prejudice, the rule should be liberally construed. Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002).

Race or ethnicity = level of scrutiny?

Strict scrutiny *Batson* - it is an improper use of peremptory strikes based on race, gender, ethnicity

Failure to respond to jury summons is technically a crime, but not often enforced. ABA did a big study on why jurors don't respond. Some changes resulted. Real attempt to make it more accessible.

Study showed that most don't show because of economic issues. Pay per day for jurors was $6. Now it is $6 for first day, and then $40/day if you're picked. In response to other studies: changes to make jury duty easier/better. Now jury duty can be rescheduled online. Easy to do. In an attempt to get jury more involed: -Jurors can now take notes, but have to leave them there. -Jurors are now allowed to ask questions (write it down, give to bailiff, reviews with judge & counsel who decide whether questions are proper)

"Substantially Correct" Standard

Substantially correct . . . does not mean it must be absolutely correct, nor does it mean one that is merely sufficient to call the matter to the attention of the court . . . It means *one that in substance and in the main is correct, and is not affirmatively incorrect. (close to perfect)*

"Substantially Correct" Standard

Substantially correct . . . does not mean it must be absolutely correct, nor does it mean one that is merely sufficient to call the matter to the attention of the court . . It means one that in substance and in the main is correct, and is not affirmatively incorrect.

How do you preserve error under the rules for a request?

Supposed to get explicit ruling on the request; written/signed ruling

Difference between mistrial and new trial

TIMING. New trial happens after judgment; mistrial during trial - before court has reached a judgment. But both are basically a do-over.

Motion for Judgment on the Verdict

TIMING: Post-trial motion It asks the judge to grant judgment in favor of the movant on the ground that 1) the verdict is correct, 2) is the result of a fair trial, and 3) compels a judgment in the movant's favor. Most of the time the jury gets it right. In that instance the party might want to move for a judgment on the verdict. Party who gets a jury verdict they want; embraces all of the jury's findings, you're asking for a judgment in your favor.

The jury charge in TX can be very simple; can just look the _____ as a guide.

TX Pattern Jury Charge (TXPJC) - can just use instructions, definitions, questions out of that. Or jury charge can be very complex. If you google "pattern jury charge" - there are 6 different volumes, based on business disputes, family law, negligence, etc. Written by very smart lawyers/judges appointed by the State Bar Committee on Jury Charges. Get appointed for a year or two, read all the law over the last two years, and make sure the charges are current. However, TXPJC might not cover everything. Especially if there's something new the TXL has done. Pattern Jury Charge is NOT law. Well regarded, but not binding.

The Concept of Variance

TX Procedural law required a close correspondence between the pleadings and the evidence that would be admissible under those pleadings. Only COAs that were both in the pleadings and supported by the evidence could be submitted to the jury in the charge. EX: If the P leading only speeding (as part of a negligence claim) and only proved speeding, the P could not ask a jury about lookout. Broad form submission disrupts this form of thinking. If the jury is only asked "was the D negligent" how will the judge be sure that the jurors are not considering acts of negligence for which there was no pleading or proof?

§51.014. Appeal From Interlocutory Order

TXL thinks certain orders so affect the rights of the party it should be reviewed immediately. Generally have 20 days from signing of the order to seek review. However, if you don't know about the order, rule 306a applies to extend to time file interlocutory appeal (just like it does a final judgment)

NOTE 2: in a direct appeal to TXSC, file your notice of appeal with

TXSC instead of ACt

Gov. C. § 22.002. Writ Power. - TXSC

TXSC or justice of the TXSC may issue writs of prodendo, certiorari, quo warranto, mandamus agreeable to the principles of law regulating those writs against a SSC, SPC, DCt, and appeals court judges; OR any officer of state govt EXCEPT the governor, TXCCA, or judge of the TXCCA

Task Force Recommendation on changes to preservation of error rules regarding jury charge = Just go to all objection

TXSC provisionally adopts. If it's not an emergency, the court will include its proposed rule changes in the TX Bar Journal (which every licensed attorney gets), and leave open for comments. These proposed jury charge rules were published, and the trial judges went ballistic. Trial judges insisted on maintaining request/object system because the TCt wants the benefit of proposed definitions/questions/instructions. TCts like getting proposed questions/definitions/instructions via request, then they adopt which ones they like, and then if the parties don't like it they can object. It helps the TCt judges. Preservation of error rules are there to help the trial judges correct errors if there is one. Typically the preservation of error timing/method is selected based on how this helps the trial judges the most. So the TXSC pulled back the proposed rules. No change to the charge rules. Proposed rules are not coming out. TXSC is not going to spend its political capital on irritating trial judges.

FACTS: There was a lag time between when the request for the partial record was made; and a few days later the appellate complaint points. Result?

TXSC: A hypertechnical interpretation filing is not necessary. No harm to appellee to get complaint points a few days after the partial record was designated. If the appellee hasn't established prejudice by the late filed material (here, points of error), we will allow.

Dallas Mkt. Ctr. Dev. v. Liedeker, 958 S.W.2d 382 (Tex. 1997) (per curiam). How do you preserve error under the rules for a request? Supposed to get explicit ruling on the request. HERE, counsel dictated on the record what their request was, and gave it to the court in writing. Court orally overruled the request on the record. Counsel requested in signed and in writing; court says they will sign off. But judge never signed. The court reporter took all this down. Opponent says that counsel failed to preserve error because you didn't get the judge's indorsement on the refusal of the request. Was error preserved?

TXSC: Payne adopted common sense approach to preservation of charge error. Here, they made an effort; thus error is preserved even if court never signed off on it. HELD: The Texas Supreme Court holds error refusing the request was preserved. "Rule 276 allows for preservation of error by other means. Consistent with the rule, the clear weight of authority, and sound policy, we hold that an endorsement by the trial court is not the exclusive means of preserving error for refusing a charge request."

Contractual Waiver of Rights to Trial by Jury Enforceable?

TXSC: YES. A knowing and voluntary presuit contractual waiver of the right to a jury trial does not violated the TXC and is not against public policy. Litigants may waive the right to a jury in several ways, such as failing to timely demand and jury and pay the fee, or forfeit the right to litigate altogether by agreeing to arbitration. A contractual waiver of jury right is enforceable.

Dep't of Human Servs. v. Hinds, 904 S.W.2d 629 (Tex. 1995). ISSUE: Whether or not a party preserved error when it made a request for instruction about causation in a whistleblower case. Wasn't clear whether or not to show constructive discharge for whistleblowing if you have to show that the principal reason for the firing was because you reported the activity, or can it just be one of the reasons. New statutory COA, so unclear standards. The Dept of Human Services raised several complaints on appeal, including that the judge erred in refusing to give their requested instruction. However, the requested instruction had a legal error in it. [Remember, a request must be "substantially correct"; here it was affirmatively incorrect] Can a requested jury instruction be substantially correct when it is incorrect? Did the Texas Department of Human Services properly preserve error on its jury charge complaint under the Payne standard? What was the Supreme Court's rationale?

TXSC: YES. that request, we think it does preserve error, EVEN though it is not substantially correct. Why? Well, counsel didn't have anything to go by. When they made that request for hat instruction, that was an instruction that appeared in a concurring opinion of three TXSC judges in a similar whistleblower case, which was all counsel had to go by at the time. Since it was concurring, it was not law, but it's all they had to go by at the time. So in these circumstances, this was the proper means for preserving error. And that the error was harmful (the jury wasn't told the causation element). Reverse and remand for new trial.

Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 467 (Tex. 1995) Background - the P's attorney had two cases that were set for trial on the same day, but failed to notify the court until 12 days before trial in an unverified motion for continuance. -[Has to be supported by verification or affidavit under the rules. If not, it's unverified and thus a defective motion.] -Court heard motion for continuance by telephone and denied the motion. -Since by phone, no record of the hearing. -P thought judge said would reconsider the motion for continuance if the other case actually went to trial; other parties: "that's NOT what the judge said." -P doesn't show at trial, trial court DWOP'd for failure to appear at a trial for which they had notice. -P moves to reinstate the case, and court denies. ISSUE: Did the trial court abuse its discretion in refusing to reinstate a case DWOP'd when P's attorney failed to appear at trial?

TXSC: Yes. When a case is dismissed for want of prosecution, a court SHALL reinstate the case upon finding after a hearing that the failure of a party or his attorney to appear is not intentional or the result of conscious indifference but is due to an accident or mistake or that the failure has been otherwise reasonably explained. -The operative standard is essentially the same as that for setting aside a default judgment. A failure to appear is not intentional or due to conscious indifference within the meaning of the rule merely because it is deliberate; it must also be without adequate justification. Proof of such justification negates the intent or conscious indifference for which reinstatement can be denied. Also, conscious indifference means more than mere negligence. HERE, the P reasonably explained that he was in trial in another county and believed, based upon his credible explanation that the court would grant the continuance. So he was NOT acting with conscious indifference. *Did P's attorney misrepresent to the trial court the trial setting it had in another county?* Yes, the attorney stated that the trial setting was preferential and older when neither was true. *D: shouldn't that misrepresentation support denying reinstatement of the case?* HELD: No. Those are the actions of the attorney, and the attorney can be sanctioned for that, but the attorney's client shouldn't be punished for that conduct. Does not equal "conscious indifference" under the rule. HELD: reverses the case with instructions to reinstate.

How do you show harm from an adverse ruling on a motion to equalize strikes?

Tamburello court notes that it is impossible to meet the normal standard for harmful error (that it probably resulted in an improper judgment) because you can't know how the jurors that were/were not eliminated would have decided. Instead, courts use the *RELAXED HARMFUL ERROR TEST* in reviewing claimed errors in trial court rulings on strikes. - To show the error was reversible, the claimant must satisfy the "materially unfair" test by showing that the judgment against a party who suffered an adverse ruling was "materially unfair." *What is the materially unfair test?* - evidence "sharply conflicting and hotly contested" trial.

What should counsel do during opening statement, if it has bad facts that the jury may eventually be exposed to?

Tell a story that engages the jury with your side of the case.

A trial court's authority to dismiss for want of prosecution stems from two sources:

Tex. R. Civ. P. 165a and the court's inherent power. A trial court may dismiss under Rule 165a(1) on failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice or under Rule 165a(2) when a case is not disposed of within the time standards promulgated by the Texas Supreme Court. In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence

Broad Form Submission: Now Mandated

Tex. R. Civ. P. 277 - Broad-form submission shall be used whenever feasible, that is, in any or every instance in which it is capable of being accomplished. Is a party entitled to the submission of each component element of the grounds of recovery or defense raised by the pleadings and the evidence by separate questions? Can this be accomplished by instructions and definitions, even if the element is not mentioned by name in the question?

Fact Findings in the Judgment What is the propriety of inclusion of findings of fact as recitations in the judgment itself?

Tex. R. Civ. P. 299a prohibits the inclusion of findings of fact as recitations made in the judgment. Supposed to be in an independent document called "Findings of Fact and Conclusions of Law" filed separate and apart from the judgment. If the findings of fact and the recitations made in the judgment conflict, the filed findings control. Tex. R. Civ. P. 299a. Thus, it has been held that an appellate court should not consider findings that are stated in the judgment as the equivalent of separately stated findings of fact. Other courts of appeals treat findings in the judgment as proper findings for the purpose of appellate review of the trial court's judgment if the trial judge does not make separately stated findings of fact. (First and Fourteenth Court of Appeals).

Who May Impeach a Witness

Tex. R. Evid. 607 = Any party, including the party that called the witness, may attack the witness's credibility. Tex. R. Evid. 607 allows the calling party to impeach his or her own witnesses.

Scope of Cross examination

Tex. R. Evid. 611(b) = A witness may be cross-examined on any relevant matter, including credibility.

*Is it reversible error to submit jury questions in granular as opposed to broad form?* *Remember, two ways to show reversible error:* 1) error probably caused the rendition of an improper judgment, OR 2) error probably prevents the appellant from being able to properly present his case on appeal (Casteel)

Texas Supreme Court: In many cases, the failure of a trial court to submit questions in broad form will not be reversible error as not harmful. (Error did not probably result in an improper judgment.) Rationale: It's very difficult to prove harm because need to show that jury's answer would have been different if the trial judge had submitted in broad form.

The Right to a Jury Trial in Texas

Texas has a more expansive right to trial by jury than that found in many other states. 99% of the time you have a right to a jury trial if there's a fact issue. BUT you need to take the correct procedural steps to get a jury trial. Probably the most glaring difference between TX and other states is in "equity" cases. In most jx, there is no right to trial by jury in equity cases. Equity claims are of a wide variety and include, for example, requests for injunctions, reformation, rescission, and equitable accounting.

May opening statements be waived?

Texas is so liberal on VD, that sometimes you don't have much left to say in opening statement.

Party with the BOP loses the jury verdict. Motions?

That party might want to file motions to avoid the effect of the verdict, and may file a JNOV, claiming that "as a matter of law" the proof is conclusive ("clear, positive, direct, uncontradicted, could have been controverted but wasn't"), so definitive that no findings other than favorable findings could have been made.

What do you have to show to demonstrate due diligence for a witness living WITHIN 150 miles of the county of suit?

That you served the witness with a subpoena to testify at trial and accompanied the subpoena with the witness fee of $10

Examination of the "Whenever Feasible" Standard: Commercial Cases and Questions about "Breach" If you don't ask questions of law to the jury, would it be a question of law to ask the jury, "did a loss occur which was covered and payable under the policy?"

That's a question of law, but when asking that of a jury, you include instructions that the jury must consider X, Y, Z occurred, that makes it a mixed question of law and fact, which is permissible. EX: Instruct the jury what the contract requires the D to do, then ask the jury: "Was there a breach of contract?" That's not a pure question of law. Mixed question of law and fact. So the instructions play a very important part in the charge. Broad form submission trusts the jury more. Trusting them to follow instructions. We're not asking them to answer every element, just the overall question. Enhances the role of the jury.

An objection is NOT needed to preserve a evidence challenge to conclusory expert testimony.

That's when the other side has the BOP (like in a MSJ) and the evidence they put on is conclusory. Carlson: I would still make the objection. Conclusory evidence (as in Coastal case) is where the expert just testifies to the conclusion. EX: Medmal: "In my opinion, D failed to abide by the standard of care and was guilty of malpractice" To NOT be conclusory, the expert must testify as to how the facts lead to the conclusion

Jury Wheel System

The "Jury Wheel" is the source of names of prospective jurors for each county in Texas. -Put the names of all registered voters on cards, stick them in this wheel (looked sort of like a ferris wheel) and select the jurors for the year. Not too many mechanical wheels left today. Mostly computer generated random lists. Jury wheel is the source of names of prospective jurors for each county in TX. Reconstituted annually. Sources of jury wheel: voter registration lists, TDL lists and persons with valid ID card from DPS Convicted felons and persons listed on register of persons exempt from jury service may not be placed in the jury wheel After the names of qualified jurors are placed on cards, they are mixed in a jury wheel that is constructed and made secure in accordance with statute. Cards are drawn for jury service and placed on lists; usually the number of lists corresponds to number of weeks of jury trials. In a county with three or more district courts, each list constitutes a general jury panel for all trial courts In a county with at least three DCts have jx, the district judges must meet and arrange for the selection of a general panel of jurors for service. In county with 2, the judges may meet. In other counties with just one, separate lists are prepared for each court. By written application of a party to any pending suit that party or an authorized representative has the right to observe the drawing of names. But the identity of the names cannot be divulged to the observer. As long as the procedure insures random selection, deviation from statutory scheme is not reversible error.

Juries in Declaratory Judgment Cases

The Declaratory Judgment Act provides that in any proceeding under the Act the court may award costs and reasonable and necessary attorney's fees as are equitable and just. In Bocquet v. Herring (1998) the TXSC held that the Declaratory Judgment Act entrusts attorneys fee awards to the trial court's sound discretion, subject to the requirements that any fees awarded be *reasonable and necessary, which are matters of fact,* and to the additional requirements that the *fees must be equitable and just, which are matters of law.*

The Judiciary Article was intended to broaden the right to a jury afforded by Article I, §15.

The Judiciary Article protecting the right to a jury was added by the Constitution of 1845 because the Bill of Rights Article contained in the Constitution of the Republic did not extend to causes in equity. Subsequent constitutions extended the right to a jury to "all cases of law or equity." It was the present Constitution of 1876 which changed the words of the earlier constitutions from "all cases of law or equity" to its present form, *"trial of all causes."*

Subsequent TXSC Opinions Embrace the Payne Rule - Court took a "common sense" approach to preservation issues. Alaniz case. - Alaniz submitted a complete charge requesting submission of various elements of damages, including future lost profits. The TCt included one page of Alaniz's request, but redacted references to lost profits. Alaniz objected to the omission. The court of appeals faulted Alaniz for not making a complete charge request.

The TXSC ruled that "Alaniz's written request was plainly separate from his oral objection, and the appeals' court view that the two were improperly entwined was incorrect. In Payne we held that a party has preserved error in the jury charge when he made the trial court reasonably aware of the complaint, timely and plainly, and obtained a ruling. While Payne does not revise the requirements of the rules of civil procedure regarding the jury charge, it does mandate that those requirements be applied in a *common sense manner to serve the purpose of the rules, rather than in a technical manner which defeats them.*

Tex. R. Civ. P. 306a(5) Civil Procedure Rule 306a(5) does not set a time for filing a *motion for the trial court to determine the date a party or their counsel first received notice or knowledge a final judgment had been signed.*

The Texas Supreme Court has ruled that Rule 306a(5) "does not prohibit a motion from being filed at any time within the trial court's plenary jurisdiction measured from the date determined under Rule 306a(4)." Thus, as long as the trial court's plenary power over its judgment is extended by a timely motion for new trial or a motion to modify the trial court's judgment measured from the date the party or the party's attorney first received notice or acquired knowledge of the judgment, the Rule 306a(5) motion can be filed and determined before the trial court's plenary power expires.

M.O. Dental Lab v. Rape (Tex. 2004) Plaintiff sued 5 Defendants in slip and fall case and had all but Defendant Smith served with process. The trial court grants summary judgment that Plaintiff take nothing. Court of appeals reverses as there is fact question.

The Texas Supreme Court, reviews sua sponte whether the trial court's order is not final and therefore not appealable. The Court holds the record supports finality. Smith was never served and Smith filed nothing with the trial court. When there's a party that was never served, never filed anything, doesn't participate, not mentioned in the judgment, "The case stands as if there had been a discontinuance as to [the unserved party], and the judgment is to be regarded as final for the purposes of appeal. Would be better if the P amended their pleadings to drop that party. Here, this is a sumj, so no Aldridge presumption of finality. Never could find the missing D. So final judgment even though the judgment doesn't marry up with the pleadings.

Supplemental charge:

The additional instructions added to the charge must be in writing. Counsel is afforded an opportunity to object or request. Court should read the new instructions to the jury in open court. The trial court may allow additional jury argument by counsel to address the new matters. Can Tex. R. Civ. P. 286 be waived? YES. See next case.

Docketing Statement

The appellant must also file a docketing statement containing info about the case being appealed, including info about the nature of the case, the parties, and the proceedings conducted in the trial court. The statement is for administrative purposes only and does not affect the appellate court's jx.

The Importance of Paying Witness Fees. In Kieffer v. Miller, 560 S.W.2d 431-432 (Tex. Civ. App. — Beaumont 1977, writ ref 'd n.r.e.), a malpractice case, a directed verdict was entered for the defendant. The plaintiffs urged on appeal that the trial court erred in refusing to grant their motions for continuance and their request for a writ of attachment to compel the attendance of a medical witness at the trial.

The appellate court, affirming the lower court's judgment, noted that Tex. R. Civ. P. 179 [as it then existed] specifically provided that: "nor shall such attachment issue in a civil suit until it shall be shown to the court, by affidavit of the party, his agent or attorney, *that all lawful fees have been paid or tendered to such witness*," and held that the plaintiffs' failure to include an affidavit that "all lawful fees" had been paid or tendered in its motion for a writ of attachment for the medical witness "in and of itself, was adequate grounds for the trial judge to deny plaintiffs' request for a writ of attachment." The trial court's refusal to issue an attachment for the doctor was held *not an abuse of discretion where the record showed a lack of diligence on the part of plaintiffs to secure testimony vitally needed for the presentation of their case.* Current Civil Procedure Rule 176.8(b) provides that a person served with a subpoena may not be attached "without proof by affidavit of the party requesting the subpoena or the party's attorney of record that all fees due the witness by law were paid or tendered." Tex. R. Civ. P. 176.8(b). See Tex. Civ. Prac. & Rem. Code § 22.001 (witness fee is "10 dollars for each day the witness attends court"; payment "for one day" must be paid "at the time the subpoena is served on the witness"). *It is 10$/day, but you only have to pay for the first day*

Poole v. Ford Motors - TXSC requires courts of appeals to detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding. Must state the review of the evidence that supports the court of appeals' conclusion on the factual sufficiency ruling. What was occurring is a court of appeals would be faced with say 15 appellate complaints, one of them factual sufficiency. The court might then write a short opinion that just states its conclusion on factual sufficiency without explanation. The TXSC couldn't further review it, and worried that some courts of appeals were not doing their job, or they're deciding the case wrongly because they want one side to get another shot. What does that mean for the appellate lawyer?

The appellate lawyer should do it for the appeals court. Summarize all the evidence with record references. Appellate courts will lift directly from briefs and put it into their opinions if it is well done. You want them to do that. Want to make it as easy as possible to sustain your opinion with the least amount of work. Courts of Appeals have mandatory appellate jx on civil and criminal appeals. And they do mandamus. No discretion. Workload is high.

Proving Absence of Notice - Remedy So if you represented a P that was DWOP'd without you getting notice, and now you want to complain. Is this the right kind of case to go on appeal? NO: When you go up on appeal, you are limited to the record below, can't introduce new evidence. Although failure of a court to provide notice to the parties before dismissing a case may be a proper basis for setting aside the order of dismissal, an appeal may not be available method for obtaining relief, because the record probably will not affirmatively show that no notice was given or that no hearing was conducted, because the clerk has no duty to record the fact of mailing notices. So what can you do?

The appropriate remedy is a *motion for new trial* or a *bill of review* filed in the trial court so that extrinsic evidence may be admitted into the record and so that the trial court has the opportunity to consider and weigh the evidence on the issue of whether notice was given. Must file motion for new trial OR a bill of review

Definitions

The charge should contain definitions of words used in the charge that have a distinctive meaning in law than any common meaning. (Ex. Proximate cause) The definitions must be legally correct to be proper.

Mechanical or Electronic System

The commissioner's court of any county, upon written recommendation of the district judge or a majority of the district judges of the county, may adopt a plan for the selection of prospective jurors with the aid of mechanical or electronic means instead of drawing names from a jury wheel. Today, random computer generated lists of prospective jurors is the norm.

Preserving Batson Complaints (Proper Timing) What is the time frame for making a Batson challenge?

The complaining party must object *BEFORE the petit jury is sworn and the remainder of the venire discharged.* The record must contain relevant info regarding panel's race, gender, etc. for appellate review. Ideally should contain juror info cards, transcript of VD questions and answers, any potential written questionnaires given to the venire and the responses, and the parties' peremptory strike list. If counsel who is defending against a Batson challenge looks at notes when coming up with a neutral reason for Batson challenge, those notes must be entered into the record; no longer protected as work product

Jurors Disagree As To Evidence What procedure is available should the jurors send a note to the court while deliberating indicating they disagree as to the testimony of a witness? What if no court reporter was present or the reporter's notes cannot be read?

The court can read back record on Ws testimony; or bring back W to repeat testimony. If a document, the court should allow to be reread

Order of docket:

The court is supposed to first try any cases in the docket that are preferentially set. Then courts go to the oldest cases next. You can tell by the docket number. Most clerks are involved in scheduling the docket, and most will let you see the docket. Are you #3 or #40? Sometimes lawyers from other cases will let you know status of their case. It's very expensive to get your witnesses, exhibits, etc. together. So it can be important to know: "is this a real setting or not?" (i.e. is the trial really happening)

What is the potential consequence of failing to support a Motion to Reinstate with an affidavit or its legal equivalent?

The court may choose not to hear it.

Magic Chef, Inc. Sibley - D manufacturer argued that if the range had injured the plaintiff was indeed defective as alleged, P would have produced it in court. P counsel replied that if the D wanted to inspect the range, it could do so under the law (which is true under discovery). P argument improper?

The court pointed out that it was an invited argument that was okay in response to the manufacturer's argument that "opened the door"

Docket Call Assuming the case is now set for trial, counsel may be required to attend the docket call (check local rules) Docket call - sounding of the docket Order of the cases: 1) any cases preferential set 2) eldest cases Local rules: many counties require as part of their local rules for counsel to appear at docket call. Usually on the Friday before the Monday that the docket starts. What happens at docket call:

The court/bailiff reads out the docket number and parties one at a time, and asks counsel "ready" or "not ready" or seeking continuance, etc. Plaintiff counsel goes first, then defense counsel. That's how the court knows if you're really ready to go. If you say "not ready" you better have a motion for continuance ready to go and get a ruling from the court so you're not on the docket. A lot of local rules say that you have to appear at docket call in person and you have to be the trial counsel with authority to settle. In other words, the lead lawyer has to go. Seems like a big waste of time, especially if you have to travel to El Paso, Brownsville, etc. just to say "ready" or "not ready". But some judges use that system because they want to ask "you're really going to trial on THIS case? You sure you don't want to try to settle?" Court can't force you to settle, but can give you big hints. More modern rules don't have docket call. Will assume all lawyers are ready unless continuance motion is filed. Have to look at local rules to see what you have to do to preserve your trial setting. Harris County has done away with them in civil cases in the District Courts.

Credibility Determinations; Disbelief of Testimony What if the jury disbelieves the testimony of a witness who denies a proposition included in a question propounded to the witness by opposing counsel?

The denial does not constitute evidence of the proposition that opposing counsel put forth. The jury's disbelief of a witness' testimony is not evidence. Regardless of the witness' credibility, or lack thereof, the burden to produce evidence rests on the proponent of the proposition in question. EX: Just because the jury doesn't believe the D's assurances regarding the use of the money, that lack of belief is not affirmative evidence of fraud.

Measuring Net Worth Statute doesn't define net worth; and what goes into assets/liabilities. The Texas Fourteenth Court of Appeals determined that the term "net worth" should be given its common definition:

The difference between total assets and total liabilities determined in accordance with generally accepted accounting principles (GAAP). Talk to CPAs and find out what they would do. What to include or not.

The Relationship Between the Evidence and Instructed (AKA "Directed") Verdict

The granting of an instructed verdict aborts the trial in midstream as to a ground of recovery or defense, and it amounts to the judge's taking that ground away from the jury and rendering judgment as a matter of law. Motion for Instructed Verdict may be oral or written, typically oral. Asking judge to take a ground or grounds away from jury in whole or part because there is nothing for the jury to decide. (Ex. There is no competent evidence or the evidence is conclusive). Made at the close of opponents' evidence. The standard for the grant of an instructed verdict is stringent because it is a termination of the trial (as to those grounds) and a removal of the decision-making power of the jury. When there's no need to go to jury on this; if party with BOP hasn't put on evidence for every element, then as a matter of law they lose. Must put on evidence of every element. Instructed verdict removes from the jury's decision.

In re Smith (Tex. 2006) What are the procedures for posting appellate security based on the judgment debtor's net worth?

The judgment loser is to file an affidavit that states complete details about assets/liabilities regarding how they came to net worth number. If opposing party disputes, can ask for discovery, TCT hearing. TCT is to issue an order that states the judgment debtor's net worth (assets - liabilities) and the factual basis for the finding.

The Purpose of the Jury Charge The jury charge is the method by which the trial judge instructs the jury concerning the application of the substantive law to answering the controlling factual issues made out by the pleadings and the proof. Pleadings are the "blueprints" for the trial. Then we need proof to support the pleadings, which will get us to the factfinder.

The jury decides facts, not law, but they can be instructed on what is legally required to find a fact. The charge to the jury is the way the trial judge controls the jurors' behavior during the deliberative process. -EX: You are to discuss as a body, no excluding any jurors. Must elect a presiding juror, who fills in the answers to the jury questions, etc.

Can parties collaborate in strikes?

The law is silent about whether collaboration is permissible. There's no guidance in the rule on collaboration. The norm is that you collaborate. But if you are against the multiple party side, you should ask for motion to equalize because of likelihood of collaboration

Ceiling on appellate security bond cost:

The lessor of $25 million or 50% of the judgment debtor's net worth. (Tort reform), and further lowered if: The trial court must order security in a lesser amount that will not cause the judgment debtor substantial economic harm when a judgment debtor demonstrates that it will likely suffer substantial economic harm if required to post security at the "cap." 2003 Tort reform - reined in the amount of bond that had to be posted. Only has to cover compensatory damages up to $25M - not punitive, post-judgment interest, and court costs (which don't have to be secured)

The Clear and Convincing Evidence Standard

The measure or degree of proof that will produce in the mind of the trier of fact a firm conviction or belief as to the truth of the allegations sought to be established. Some types of cases or issues must be supported by more than a preponderance of the evidence, but rather must be supported by clear and convincing evidence.

Motion for New trial (MNT) Just what it sounds like: asking the court to ignore the jury's verdict or the judge's (in a bench trial) and grant a new trial The motion for new trial serves a different purpose than the motions for judgment, JNOV, or instructed verdict. Those motions are decided according to strict legal standards. Nature and purpose of the motion

The motion for new trial affords the judge far more discretion and its function is to enable the prevention or correction of injustice, and the grounds upon which it can be based are numerous. Civil Procedure Rule 320 provides that new trials may be granted for "good cause, on such terms as the court shall direct."

Motion for Rehearing

The motion must clearly state the points relied on for the rehearing, it must be in the same form as any other motion, and it must be filed with the court and served on all other parties to the proceeding. A response to a motion for rehearing need not be filed, but you may. May be last opportunity to seek change in judgment as Supreme Court jurisdiction is discretionary because you have a 90% chance the TXSC wont' take it.

The Events in a Trial [1] Empaneling the Jury

The names of jurors who will serve on the jury itself - the first 12 against whom no challenge is lodged - are called by the court and fill the jury box. Attorneys should make sure that no juror that has been struck is seated Once empaneled, the jury is asked to rise and swear they will "a true verdict render, according to the law and the evidence"; then the judge gives further instructions from TRCP 226a: Not to discuss the case with anyone, listen only to the evidence, not to accept favors from anyone, etc.

With Daubert challenges pre-trial, you end up with a lot of "collateral litigation." Rule 169 Expedited trials are intended to keep trials inexpensive (relatively) but effective.

The only way you can make a pretrial objection to your opponent's expert is through a MSJ But in non-expedited cases, you can make objections pre-trial or at trial

Juror Concealment

The oral admonitory instructions inform the jurors they must not conceal information or give false answers during voir dire examination. Juror concealment is not synonymous to a juror's misunderstanding of a voir dire question or response to a vague or confusing inquiry.

Who drafts the judgment?

The parties. The court will look to you to draft the judgment if you win with a place of judge's signature and date.. You are supposed to get the other party to agree to its form (not its content)

[2] Opening Statements

The party with the BOP on the whole case (usually the P) goes first Opposing party goes next or may reserve opening until the beginning of her case Opening statement practice different in TX state courts because of the wide latitude given to lawyers to describe their contentions during VD exams, thus short openings or even waiver of openings is common. *Statement can serve several purposes:* Alert jurors to the issues Allows attorney to state their positions Previews the kinds of proof that will be offered Sort of like the table of contents to a book; sets the stage for evidence that might otherwise be confusing and ambiguous

Purpose of an IRD instruction?

The purpose of these instructions is to advise the jurors, in the appropriate case, that they do not have to place blame on a party to the suit if the evidence shows that conditions beyond the party's control caused the accident in question or that the conduct of some person not a party to the litigation caused it.

Voir Dire Examination

The purpose of voir dire is (not just to find disqualified jurors), but to interrogate prospective jurors, in search of ascertaining whether they are qualified to serve and for counsel to determine how to intelligently use preemptory strikes. Most questions focus on bias or prejudice against client or the case Counsel's goal is to ask relevant questions for the purpose of discovering whether prospective jurors have bias or prejudice towards counsel's client or case.

The Class Certification Exception §51.014(a)(3) an order that certifies or refuses to certify a class in a suit brought under Rule 42 of the Texas Rules of Civil Procedure is appealable.

The question whether an action may be prosecuted as a class action is frequently of such importance to the procedural aspects of the suit and to its economics that it makes sense for it to be settled before the merits of the action are addressed.

[9] Judgment and New Trial TRCP 301, 320, 324

The receipt of the verdict ordinarily ends the trial proper. The judge must still render judgment in accordance with (in some instances, contrary to) the judgment of the jury, but that step usually takes place on a later day. Receipt of the verdict means the arduous task of presenting the case is over. Depending upon the nature of the evidence and the verdict, one party or the other may make a motion for judgment notwithstanding the verdict or to disregard jury findings. Such a motion is prepared after study of relevant case law and may be set for hearing before the court at a later date. Thereafter, the judge will render judgment. Finally, a party dissatisfied with the judgment may file a motion for new trial, may appeal, or may undertake certain other procedures

CHAPTER 7: NONJURY TRIAL Bench Trial

The rules governing voir dire examination of the jury panel, jury argument, jury deliberations, preparation of the jury charge, and receipt of verdict are NOT APPLICABLE in a bench trial to the court. To the extent that the Texas trial judge plays a relatively passive role when trial is by jury, he or she is certainly no mere "umpire" when the trial is conducted before the court. Some cases are better suited for court and not jury; These days in COVID, it is so complicated to get a jury trial, the bench trial is a default. Quicker, less expensive: no voir dire, no jury argument, charges, etc. You often don't have to have any demonstrative evidence, etc. *Judge tries law AND fact*

What does it mean to "attach the witness"?

The sheriff/constable physically seizes the subpoenaed witness and brings them before the court

Why are we so concerned about whether the TCT has plenary power or whether the appellate jx has been timely invoked?

The social interest in having final judgments. Clients need to know when it is completely over and done. Not good to leave the TCT's plenary power open forever into time; would lead to mischief and perhaps inconsistent results (new judge could come in and overturn everything). Also, we want to know whether appeal is going forward or not with some certainty.

It can take a while for the court reporter to make a written transcript. We don't generally have real time court reporting.

The tech exists, but expense isn't worth it (apparently). So it requires a transcription period.

'Reasonable Minds' Standard of "No Evidence"

The test for the application of this no evidence/scintilla rule is that *if reasonable minds cannot differ* from the conclusion that the evidence offered to support the existence of a vital fact lacks probative force, it will be held to be the legal equivalent of no evidence. However, there is some competent evidence, more than scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact."

What if the claimant makes the jury demand within 30 days of the case being set for trial on the non-jury trial?

The trial court has the discretion to allow a jury trial, even if it is NOT presumptively timely. Trial judges try to honor a citizen's right to a trial by jury. It also takes the heat off the judge in a case to have the jury handle the politically unpopular cases.

Instructions

The trial court must submit proper instructions that will enable the jury to render a verdict. Instructions must assist the jury in answering the jury questions.

Effects of Order, Sanctions for Violating a MIL

The ultimate sanction for violating a motion in limine order is a court order holding the attorney in contempt. The trial judge's ruling on a motion in limine is not reversible error, even if wrong. It is the evidentiary objections and rulings DURING trial that form the basis for appellate complaint. An appellate court is more likely to view the error as serious if opposing counsel has violated an order in limine. Hartford Accident and Indem. Co. v. McCardell, 369 S.W.2d 331 (Tex. 1963).

Jurisdiction of Judicial Officers It should be noted that the courts of appeals' mandamus jurisdiction over judicial officers extends to both district and county court judges in the court of appeals.

The writ power of the Texas Supreme Court extends to "a statutory county court judge, a statutory probate court judge" as well as a "district judge," but apparently does not cover a judge of a constitutional county court judge (which is kind of odd).

TYPES of IRDs When defendants blame an occurrence on someone or something other than themselves, the Texas Pattern Jury Charges provide multiple alternatives.

There is a *sole-proximate-cause* instruction if the occurrence is caused by a "person not a party to the suit." There is an *unavoidable-accident* instruction if the occurrence is not caused by "the negligence of any party to it." There is a *new-and-independent-cause* instruction if the occurrence is caused by someone else later. There is a *sudden-emergency* instruction if the occurrence is caused by something other than the defendant's negligence and arises suddenly. And finally, there is an *act-of-God* instruction if the occurrence is caused by "the violence of nature."

Int. Appeal by Municipality Tx Local Govt. Code. A municipality may, by ordinance, require the vacation, relocation of occupants, securing, repair, removal, or demolition of a building that is dilapidated, substandard, or unfit for human habitation and a hazard to the public health, safety, and welfare. A municipality may bring a civil action for the enforcement of an ordinance relating to dangerously damaged or deteriorated structures or improvements.

There is an interlocutory appeal allowed by a municipality with a population of 500,000 or more if the motion is denied in an action filed under Section 54.012(6) or 214.0012, Local Government Code.

What is the standard used for the grant of an instructed verdict?

There is no competent evidence or the evidence is conclusive on that element or entire ground.

Settings in Conflict Q: What happens if you have two conflicting trial settings on the same day? Does one control over the other?

There is no priority under the statewide rules. However, local rules often set out priority. EX: older prevail over new, etc. A: Need to make a motion for continuance or get someone else to try the case.

NOTE 1: What if judge changes/dies/loses election between end of trial and findings of fact?

There might need to be reversal and remand for new trial when there was a failure of that judge to make timely requested fact findings that are a matter of right (after a full trial). Courts of appeal are NOT consistent on this new judge rule. EX: Judge decided case in December, lost election, now it's January and there's a new judge. We're up on appeal and trial judge didn't make fact findings even after reminder. Can the substitute judge make fact findings based on the record? Some courts of appeals say no, some say yes. Carlson: I think the better view is "no" since the judge in finding facts is also judging the credibility of the witnesses. It's very difficult to do without direct observation.

TRCP 306a(3) Notice of Judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed.

There's an obligation under 306a for the clerk of court to give notice. That's how you generally find out. Today you generally get an email. Then you start calendaring things.

Complaints Concerning Review of a Denial of a Motion for Summary Judgment The denial of a summary judgment motion does not preserve no evidence complaints for appellate review. What does denial of summary judgment mean?

There's fact issues for trial. Rather the argument must be re-asserted at trial on the merits and the no evidence point raised in one of the usual five ways: (1) an objection to the submission of an issue to the jury; (2) a motion for instructed verdict; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard a specific jury finding; or (5) a motion for new trial.

Webb v. Jorns,488 S.W.2d 407 (Tex. 1972). FACTS: Plaintiffs sued 3 defendants for medmal, D1 was dismissed with prejudice on Oct. 28, 1970. The trial court granted the other 2 Ds instructed verdicts and rendered judgment on Jan. 18, 1971. What is the timeframe to appeal as to each Defendant?

There's no severance, so it's when it is final for EVERYONE. *When did the last order that disposed of the last issue/party?* Jan. 18. 1971. The order on Oct 28 was interlocutory; didn't dispose of all parties/issues. And there was no severance. The order granting the instructed verdict is the "final judgment" that becomes "day zero" for plenary power/appeal. Since the trial court did not sever the cause against the hospital from the rest of the case, the interlocutory judgment did NOT become a final judgment until it was merged into the final judgment which the court rendered on the whole case.

Peremptory strikes:

These strikes are made for any reason (subject to Batson) and are limited (3 strikes in county and JP court; 6 strikes in district court). The first twelve jurors not struck comprise the jury in district court. (first 6 jurors in county and jp court)

NOTE 3: Reconsider the Island case. Why does the court call "waiver" an independent ground? ---Because it is. How does the majority explain that the Ps have not "waived" their waiver claim when it was not mentioned in the charge?

They said it was subsumed in the broad form question. Be careful of waiver an entire ground under 279 when no element appears. Ask whether the broad form question could be fairly read to subsume the ground.

RULE 273. JURY SUBMISSIONS Either party may present to the court and request written questions, definitions, and instructions to be given to the jury; and the court may give them or a part thereof, or may refuse to give them, as may be proper. Such requests shall be prepared and presented to the court and submitted to opposing counsel for examination and objection within a reasonable time after the charge is given to the parties or their attorneys for examination. *A request by either party for any questions, definitions, or instructions shall be made separate and apart from such party's objections to the court's charge*

They wanted each question separate on different pages so court could piece them together. This rule was passed before computers. Courts didn't have secretaries, etc. Today, more common for lawyers to submit clusters of questions with definitions/instructions for each COA. Still a separateness in the way the charge is submitted. Today also everything is electronic, so much easier to cut and paste. TXSC: under Payne we are using a common sense approach to determine whether error was preserved. As long as made trial court aware and get a ruling.

Judicial Inquiries About Status of Deliberations Under current Texas law, once the trial court determines that a jury is having difficulty in reaching a verdict ("deadlocked"), the trial court may give verdict urging instructions, in a supplemental charge, as long as the instructions are not coercive.

This supplemental charge (Called an "*Allen charge*" or a "*dynamite charge*") is an attempt to blast the jury off their fixed positions and see if they can agree. How do you determine whether an instruction is coercive? EX: cannot threaten to detain jury all night. That is coercive and thus improper. *Court looks at each statement in the dynamite charge individually, then considers all statements as a whole.*

Emotional Appeals vs. Prejudice In another case involving wrongful death of a woman recently married, counsel recited their wedding vows and favorite songs.

This was ruled not improper. Counsel is not required to present arguments in stoic manner. Also, "loss of consortium" was one of the grounds, so evidence of the husband's emotional loss is relevant evidence. There is a different between good passion (sympathy with husband who lost wife) and bad passion (racial prejudice) However, emotional arguments NOT grounded in prejudice are improper.

When the verdict is not unanimous (10 of 12, 11 of 12, or 5 of 6 in jp and cty count), who must sign?

Those who agree with verdict must sign individually

Preserving a Factual Sufficiency Complaint To preserve a factual sufficiency complaint in a jury trial - only ONE way:

Timely Motion for New Trial (and get a ruling on the record - don't have to if grounds are factual sufficiency; it will be implied if overruled) If the ground for a MNT is something else (there are a lot of bases for MNT besides factual sufficiency) and you have to introduce evidence, you'll have to get a ruling on the record.

What is the role of the Texas Supreme Court compared to that of the Court of Appeals?

To develop the jurisprudence of TX. NOT just an error correcting body.

Why does Rule 286 state that the jury has to receive written supplemental instructions and has to be brought back into the courtroom as a body to receive those instructions?

To have it on the record for appellate purposes Also, we want to make sure that all jurors get what the instructions mean. As opposed to handing it to the presiding juror and hoping they give it to everyone and they all understand.

Relaxed Harmful Error Test in reviewing claimed errors in trial court ruling on strikes:

To show the error was reversible, the claimant must satisfy the "materially unfair" test, by showing that the judgment against a party who suffered an adverse ruling was "materially unfair." Typically have to show actual harm, but in cases where it is unclear, go to relaxed standard.

Application of the Harmless Error Rules Usual Harmful Error Test: Probably resulted in an improper judgment. But can't show that here because we can't know how the jurors would have ruled differently. Relaxed Harmful Error Test in reviewing claimed errors in trial court ruling on strikes:

To show the error was reversible, the claimant must satisfy the "materially unfair" test, by showing that the judgment against a party who suffered an adverse ruling was "materially unfair." Typically have to show actual harm, but in cases where it is unclear, go to relaxed standard. *What is the "materially unfair test?"* - Evidence sharply conflicting and a hotly contested trial, error results in a materially unfair trial without showing more. *Sharply conflicting* - it's a close call in terms of the evidence. *Hotly Contested* - maybe show that it was not a unanimous verdict -Only 10/12 in DCt (⅚ in JP/CCs) is required in TX courts to support a civil judgment *Why is that the test?* If it's a close case, it can go either way. So it probably did harm the party that the allocation of strikes was not allowed (the motion to equalize peremptory strikes) because we can't know how things would have played out if the juror had been struck.

Cross-Examination and Examination of Adverse Parties For many years, TX followed rule that if you call a W you are bound by their testimony; can't impeach.

Today, you CAN impeach a W that turns out to be hostile.

What do you win if you win a legal sufficiency complaint?

Trial court: You win on that ground Can get an instructed verdict or JNOV Appellate court: RENDITION

Judicial Constraints on Examination Process -

Trial judge is allowed to exercise sound discretion to impose reasonable limits on the scope of an attorney's examination in order to prevent questioning that concerns matter with only a remote connection to the case or unduly time consuming in light of the likelihood of exposing prejudice.

What is the effect of a premature request for findings of fact and conclusions of law?

Trial makes its pronouncements orally. Or the judge will just tell you "I'm inclined to do this or that..." What the rules say is that if you make a premature request, it is treated as though you made a timely request just after the ruling was signed on the same day. Just a fiction.

The $25 Million Dollar Cap Do each D have to post to the cap? Or the cap for both? Is the cap per judgment or judgment debtor?

Two appeals courts have addressed it, came down on opposite sides. One said: each judgment debtor on their own has to meet $25M; other said it is per judgment $25M for all defendants.

The Scope of "No Evidence" Review

Under this traditional approach, the reviewing judge or court "must consider only the evidence and inferences tending to support the . . . finding, disregarding all contrary evidence and inferences." So an appellate court would say, "is there anything here, any competent evidence to support the jury's findings?" If so, it would uphold and overrule legal sufficiency complaint.

Juror Questions To Court During Deliberation How many jurors must concur to send a note to the court during deliberations?

Unknown, rule silent

Trial court gets a lot of discretion on the facts, especially if the facts are at all close.

Unless there's no competent evidence, or the evidence is conclusive against the court's finding, or the weight of the evidence is against the TCT's finding, the TCT's finding will be upheld. However, TCt gets *no discretion of issues of law.*

If you're in Harris County, want do you think is going to be a basis to strike a juror for a particular case?

Usually comes down to bias or prejudice. Others very rarely apply.

Monsanto Co. v. Milam, 494 S.W.2d 534 (Tex. 1973). FACTS: Counsel kitchen-sinked the charge objections. Monsanto made more than 150 objections, many of which were boilerplate. One of the purposes of Rule 274 was to discourage the use of these general stock objections.

Voluminous and unnecessary charge objections can waive your valid objections. And that's what the court held here. Purpose: Not supposed to burden the TCt with figuring out which of your objections might have validity and which don't. Advice: Objections must be specific and not unnecessarily profuse. TRCP 274

What is the difference in the outcome under Rule 279 when there is a failure to submit any elements of an entire ground in the charge without charge objection or request?

Waiver of that ground.

Liability questions combining factually invalid claims with factually valid claims TXSC has extended the Casteel and Harris County analysis to liability questions that combine factually valid claims with factually invalid claims.

We do not hold that the error of including a factually unsupported claim in a broad-form jury question is always reversible. Rule 44.1(a)(2) requires that the error, to be reversible, "probably prevented the appellant from properly presenting the case to the court of appeals." But unless the appellate court is "reasonably certain that the jury was not significantly influenced by issues erroneously submitted to it", the error is reversible. We have no such reasonable certainty here; on the contrary, we are reasonably certain that the jury was significantly influenced by the erroneous inclusion of the factually-unsupported malicious credentialing claim in the apportionment question. Accordingly, we conclude that the error requires reversal of the judgment.

NOTE 1: What legitimate functions did the argument regarding the conspiracy to create inflated medical bills serve?

Went to credibility, whether the testimony of the doctor and the physical therapist were credible

Elliott v. Hamilton, 512 S.W.2d 824 (Tex. Civ. App.—Corpus Christi 1974, orig. proceeding) (per curiam). Issue: unanswered material questions FACTS: P sues D, D alleges P was contributorily negligent. However, there were unanswered material jury questions pertaining to the P's alleged contributory negligence. No one objected to the partial verdict or requested the jury to further deliberate. The trial court accepted the partial verdict and discharged the jury. Subsequently, the court becomes aware of the unanswered questions and the trial judge declared a mistrial. Plaintiff, who got all their questions answered in their favor, seeks mandamus relief to compel the trial judge to enter judgment based on the answered questions. P argues that the D waived their right to get answers to those material questions because they did not object before the jury was discharged and point out to the court there were unanswered material questions.

What are the options the trial court has when there is an incomplete verdict (unanswered material questions) and no one objects before the jury is discharged? *RULE: When there are no objections to an incomplete/partial verdict, the trial court has the option to enter a judgment based on the answered questions or grant a mistrial.* A party who is dissatisfied with the verdict must make known his dissatisfaction to the trial judge before the verdict is officially accepted and the jury finally discharged. This is his duty. Where the verdict is not conflicting and it finds facts which supports all the elements for a judgment, the error of not objecting to the unanswered issues is not preserved unless brought to the trial court's attention in time to have the jury reconsider and complete their verdict before it is discharged. If the trial court then accepts the verdict after objection has been made and ultimately enters judgment based on the verdict, the dissatisfied party can complain and perfect his appeal. The test as to whether a judgment may be entered on a partial verdict or whether answers are required, depends on whether the unanswered issues could have affected the results of a judgment. If the entry of a judgment on a partial verdict is such that the winning party was entitled to judgment no matter what the jury may have said in response to the unanswered issues, a judgment would be proper. Where the unanswered issues are such that their answers might change the results of the case, such issues are material and, therefore, the verdict is incomplete. It will not support a judgment and a mistrial is required. The unanswered issues here inquired as to the plaintiff's alleged contributory negligence. They were material. The trial court correctly declared a mistrial.

"Mother Hubbard" Clause A "Mother Hubbard" Clause = a recitation that "all relief not expressly granted is denied" or "Plaintiff take nothing as to all claims". In Mafrige v. Ross, the Texas Supreme Court held that the inclusion of a Mother Hubbard or other catchall clause makes the order a final judgment but later reversed that holding in Lehmann. DID NOT WORK AND WAS OVERRULED.

What happened after Mafridge is that lawyers would put Mother Hubbard clauses in everything that would trigger Day 0. Other parties wouldn't necessarily read. Lawyers wouldn't be concerned about orders that didn't include their client only to find out that WAS the final order in the case for purposes of appeal and should have been availing themselves of the appeal court if they wanted to make some complaints. TONS of cases where parties lost the right of the appeal because there was a Mother Hubbard clause that was actually a partial summary judgment. Mafrige did NOT work well. *SO TODAY: The inclusion of a Mother Hubbard Clause in a summary judgment does not make it per se final*.

Cumulative Evidence: If what you've found (new evidence to support MNT) has already been introduced by other witnesses, the other side can argue that it is just cumulative evidence, and thus unnecessary and insufficient to warrant a new trial.

What if you're in a car accident; have testimony from both drivers. After trial, a new person comes forward as an eyewitness. You can argue that this is not just cumulative, this is of different weight; this is a disinterested person's testimony instead of the interested drivers. Court may grant new trial, but don't bet on it.

For a long time, IRDs went to jury in the form of a question. But the rule was changed so that IRDs only go to jury as an instruction. Rule 277 Inferential rebuttals are submitted by instruction NOT by jury questions. TRCP 277. Why?

What was happening when IRDs are in the form of a question, is that juries were answering both questions as "yes" so that they found, for example, both negligence and an Act of God. Inconsistent legally, led to a lot of reversals. TXSC, we'll avoid this by taking out IRDs from questions and include as instructions instead.

Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358, 360-62 (Tex. 2000). FACTS: Someone was denied a concealed handgun license. Appeal TCT. Question: did the ACt have SMJ when the AIM is only $70? [Appeals court minimum at the time was $100.]

What was the ultimate holding of Tune? Did the court of appeals have subject matter jurisdiction when the AIM is only $70 (and minimum AIM is $100 at the time, now $250)? Hecht: Value of a license is more than the fee paid. EX: TDL fee is low, but the value of the license in terms of being able to drive around is much higher. HELD: Yes. Appellate court has SMJ because value of license is more than AIM.

Impact of Dismissal Orders

When a case is dismissed for want of prosecution, it is error for the court to dismiss the case "with prejudice." It must be without prejudice.

When is a unanimous verdict required?

When punitive damages are sought. Unanimous both as to the conduct (EX: intent to injure) and to the amount of the award. Is the signature of each juror required in this instance? YES

TRCP 299 Omitted Findings When findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein.

When the court makes fact findings, the judgment should comport with the fact findings. Legally consistent.

Factual Sufficiency Review of Multiple Damages Amounts In Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 771—75 (Tex. 2003), the Texas Supreme Court addressed the proper standard for factual sufficiency review when evidence pertains to more than one category of damages submitted to the jury:

When the jury is asked to award damages in overlapping categories of damages, but is told that it is not to award damages for the same loss more than once, the appellate court should presume the jury did not award damages for any element more than once, unless the record demonstrates otherwise (unlikely, can't get into evidence the deliberations of the jury).

Outside the hearing of the jury but need judge, witness, and court reporter to remain. Why? How does an Offer of Proof take place?

When you have a MIL precluding you from introducing evidence you want to introduce, you approach the court, outside the healing of the jury and say: "At this time we would like to offer into evidence the testimony of X that Ms. Acord refused a blood transfusion, we think it goes to causation and it's relevant" Judge: "denied, step back." Now you need to make an offer of proof. Doesn't have to be spontaneous, but you want to it while you have that witness present because you need that witness to make the offer of proof. "Your honor, we'd like to make an offer of proof." Judge will probably say: "You can do that at the next break of the jury" So on the jury's break that you make the offer of proof. Be sure to keep judge in the courtroom on the break so he can rule on the offer of proof. Then ask the witness the questions that you would have otherwise asked and get it into the record. Generally, there's no right to cross on an offer of proof, because if an appellate court finds that excluded evidence should have been admitted, and it is harmful, they have to reverse and remand for a new trial. The appellate court cannot make new fact findings; they can only "unfind" facts that aren't supported by evidence. The constitutional right to a trial by jury requires a reverse/remand when a trial court has improperly excluded evidence.

Incurable Jury Argument What is the test for incurable error in the jury argument that will require a mistrial?

Whether the argument, when viewed in the light of the entire record, was so inflammatory as to strike at the heart of the adversarial process or appeal to fundamental prejudices . Living Ctrs. of Tex., Inc. v. Peñalver, 256 S.W.3d 678 (Tex. 2008) (compared nursing home conditions to Nazi experiments on the infirm is incurable error)

The Interim Payne Rule The Texas Supreme Court provides an alternative standard to that contained in the TRCP to determine whether charge error has been preserved. Payne standard =

Whether the party made the trial court aware of the charge complaint, timely and plainly, and obtained a ruling. The interim Payne rule is the fallback: You need only assert the Payne standard if you failed to preserve charge error under the preservation error rules.

Preservation of Error: How does counsel preserve a complaint about variance?

While an issue doesn't have to be distinct and separate, an OBJECTION must be distinct and separate. "Objection, outside the pleadings, because...." If there is a variance between pleadings and proof, the distinct and specific variance or other defect must be stated in the objection or it is waived. The court can then allow the party to do a trial amendment, issue a limiting instruction or issue the question broadly without limiting instruction.

Comments on the Failure to Call Witnesses or Present Evidence -

While it is generally improper to common on evidence outside the record, comment on the failure of the opposing party to produce relevant evidence is properly the subject of argument, particularly when there is a unique/close relationship between that W and the opposing party and they appear to have relevant evidence. Thus, it is permissible to comment on the failure of the opposing party to testify. It is also proper to suggest the inference that the truth would not have helped his or her case, unless the party is barred from testifying about the matter. Failure to call a material witness by one's opponent may also be commented on IF the witness has a relationship with the opposing party so that the witness is especially or peculiarly available to that party. EX: comment on the failure of D to call physician as witness who had examined P at the D's request was not improper. EX: Why didn't they call the passenger in the car at the time of the accident? But a comment is improper if the witness is equally available to both parties.

4) Preservation of Error for Peremptory Strikes The procedures for preserving the right to complain about the trial court ruling regarding equalizing peremptory strikes are different than the procedures required when a challenge for cause is improperly overruled.

While it is the rule that when a *challenge for cause* is overruled, a party is required to identify an unacceptable juror that he was forced to take, that rule is not applicable when the trial court improperly apportions peremptory challenges. If a claimant's *motion to equalize strikes* is overruled, it is not necessary to identify objectionable jurors that will remain. So what you have to show on appeal is: -that there was antagonism, the trial denied it, and that it was a close case ("hotly contested') and then the appeals courts can presume harm under the relaxed standard

The Relationship of Explanatory Instructions and Definitions to the Jury Questions

With the move to broad-form jury questions, the role of jury instructions has increased. Components of the charge that formerly appeared as questions are now likely to appear in the charge as definitions and instructions. In addition, the elimination of the submission of inferential rebuttal defense in the form of jury questions in 1983 increased the importance of the role of explanatory instructions, at least for those inferential rebuttal defenses that have been approved for inclusion in the charge. As the cases in this section show, because instructions can be as problematic as a complex series of jury questions, there is continuing controversy about their proper role.

What if there's a conflict in the fact findings?

Within 10 days, you need to point out the conflict and ask the court to resolve it. The current view is that conflicting findings of fact, if you don't point it out to the trial court, you can waive the right to complain on appeal.

Time frame for filing motion for rehearing following the denial of a petition for review or after the Texas Supreme hands down an unfavorable decision:

Within 15 days after the Court issues its order disposing of a petition for review or within 15 days after the Court renders judgment. (Due date +15 motion for extension allowed) No response needs to be filed unless the Court requests a response, and the motion will not be granted unless a response has been filed or requested.

If your case is DWOP'd what do you do?

Within 30 days file a motion to reinstate the case under 165a; must show evidence that whatever you did that led to DWOP was not intentional or a result of conscious indifference, and can be explained. These are factual matters; need a hearing.

Customary Practices In many courts in the state, judges customarily grant continuances upon being notified, even informally, that counsel is in trial elsewhere.

Without such an understanding, the lives of many trial lawyers would be intolerable. Nevertheless, continuance for absence of counsel is a matter of discretion. TRCP 253. Discretion is necessary because sometimes counsel abuse the process. Courts may insist on a formal motion for continuance.

General rule - can only appeal to the appellate court from a final judgment. So, what is a "final judgment"?

Won't always be a piece of paper titled "piece of judgment" Case law: *the last order of the court that disposes of any remaining parties or issues is the "final judgment"* So you have to be adept at keeping up with the question of "are we done?" Does that order dispose of everything that's left? EX: P 1 sues D1 and D2. P gets a summary judgment against D1 on Feb 1. Feb 2: P takes a nonsuit as to D2. Are there any remaining parties/issues? NO. So the day that the dismissal order granting the nonsuit is the final judgment. So if we represent the D, and we think the summary judgment is erroneous, important to know that the nonsuit dismissal order is day zero, that sets the appeal/plenary power clocks.

Would you object at the charge conference if no elements of one of your opponent's charge is submitted in the charge? Is that unsubmitted ground waived, or would you assume it was subsumed in the broad form question and request an instruction on it?

Would a court reach the same result today-recall the holding in Island Recreation. (Multiple ground case included breach of contract and waiver. The face of the charge only inquired as the breach of contract. Nonetheless, the Court held the waiver ground was subsumed in the broad form breach of contract question.) Island puts lawyers in a strange place. Sudderth - if I'm at the charge conference and there are two grounds and your opponent doesn't ask for a ground, just lay low because it's a waiver of that ground. Island - there's two grounds (breach and waiver) but waiver didn't appear in the charge. If you assume that waiver question wasn't requested by the parties, but it was subsumed. Now, if you're at a charge conference, if your opponent doesn't ask for a ground, it may be subsumed under Island, and not waived (as in Sudderth). In which case, you want to ask for a limiting instruction.

What about if counsel asks, "Will you follow the law?" Is counsel permitted to ask the foregoing commitment question?

YES

Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308 (Tex. 2000). FACTS: Party asked for sanctions to be added to the judgment. That's not necessary to get sanctions, but that what the party filed. ISSUE: Whether a timely filed postjudgment motion seeking to add an award of sanctions to an existing judgment extends the 30 day period in which a TCT may exercise plenary power over the judgment?

YES First question: 1) was the motion within 30 days of judgment? 2) Per Brazos, did it seek a substantive change in the judgment? --If so, it extends the appeal deadline/court's plenary power to 90 days. *Question: what if the party had asked for an order of sanctions, but had not asked that the order be included in the judgment, would that extend plenary power/appellate timetables?* Majority: No Justice Hecht's concurrence: Yes.

Can counsel waive 286 requirements?

YES, see next case, Garza v. San Antonio Light.

Barfield v. Brogdon, 560 S.W.2d 787 (Tex. Civ. App.—Amarillo 1978, ref'd n.r.e.). FACTS: Wrongful sequestration case. Attorney (Barfield) took lawnmower to repairman. Dispute over price of repairs. Repairman (Brodgon) refused to return lawnmower before payment. ISSUE: What happens if the jury is told the wrong law, the wrong standard by which to decide a case, but no one objects? You waive charge objections if you don't timely make them at the charge conference. Can a judgment be affirmed on appeal, even if it's made on the wrong law?

YES. *Was "malice" correctly defined in the jury charge in Barfield?* NO. The jury questions for exemplary damages were legally incorrect; they stated that Barfield "knew or should have known" that the sequestration was wrongful instead of the actual legal standard of malice: that it be wrongful AND procured without PC and maliciously. *Can a valid judgment be based on a jury charge that contains an incorrect statement of the law when parties fail to object?* YES. It is the duty of the party to request the submission of an issue on malice to the jury or else suffer a waiver of that ground of recovery *Waiving a Correct Statement of the Law*: In Barfield, the Texas Supreme Court considered whether "Barfield waived his right to complain of the issues submitted by his failure to make pertinent objections to the charge as required by Rules 272 and 274." Court: we'll review on appeal based on what the jury was actually asked. *Case shows how serious the consequence a failure to object will be to the legal standard, law, facts, etc. at the jury charge phase.*

Time Restrictions on VD: Is the trial court permitted to place reasonable time restrictions on voir dire examination?

YES. Some courts have begun imposing specific, if not arbitrary time limits on counsel. Most civil cases filed after 9/1/2013 with AIM under $100k are subject to expedited timetables of TRCP 169. -Those filed after Jan 1, 2021, up to $250k Each side is allowed no more than 8 hours to complete jury selection, opening statements, presentation of evidence, examination and cross examination of witnesses, and closing arguments. Basically, everything but the juror charge conference. On showing of good cause by any party, the court may extend the time limit to no more than 12 hours per side.

Cecil v. Smith (Tex. 1991) *Does a timely filed motion for new trial overruled by operation of law preserve appellate complaints regarding factual sufficiency?*

YES. After the 75th day if there's no an express ruling it is overruled by operation of law. Do not have to literally present in person to judge. Note: TRAP 33 amended to recognize explicit and implicit rulings by the trial court. If it gets overruled by operation of law, it is implicitly overruled. If you have to prove up a fact to establish a ground for MNT (EX: jury misconduct, seeking to reinstate and want to show it was not intention/conscious indifference), you have to have a hearing to prove up those facts and the TCT must hear such evidence.

Pharo v. Chambers Cnty., 922 S.W.2d 945 (Tex. 1996). ISSUE: Was there jury misconduct in these two instances: 1) Did the jury improperly meet with someone who has an interest in the trial? 2) Did bailiff make improper statements to the jury (made a joke about having to raise taxes to pay for better jury cards)? Instruction: "Do not mingle nor talk to the lawyers, witnesses, the parties or any other person who might be connected with or interested in this case...." Did the juror violate this instruction?

YES. Bailiff responded to juror's observation about the aged conditions of the juror information cards: "For me to do anything about the cards, I would have to raise the taxes." *Does this violate TRCP 283?* YES. The only thing the bailiff is supposed to say is "have you reached a verdict?" We conclude that, in the context of this damage suit against the County, the bailiff's reference to "raising taxes" was improper. Tex. R. Civ. P. 283 prohibits the officer in charge of the jury from making any communication to the jury, except to inquire if they have agreed upon a verdict, unless by order of the court. *Was it reversible error?* NO. This misconduct, however, justifies a new trial only if it reasonably appears from the record that "injury probably resulted to the complaining party." Tex. R. Civ. P. 327(a). "To show probable injury, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he 'would otherwise have done on one or more issues vital to the judgment.'" Determining the existence of probable injury is a question of law. It does not reasonably appear from the record that the bailiff's comment resulted in probable injury to the plaintiffs. The evidence indicates that the bailiff made the remark casually, in a context unrelated to the issues in the lawsuit, and in a manner that was perceived by the panel members who heard it as a joke.

Garcia v. Spohn Health Sys.,19 S.W.3d 507 (Tex. App.—Corpus Christi 2000, pet. denied). FACTS: Medmal case. Case brought against the hospital and doctors group. Jury can't agree on negligence, except that all 12 agree the hospital is NOT negligent. So, the Hospital moves for severance. All material questions as to the Hospital have been answered. Hospital wants it in a different lawsuit so that hospital can get judgment that P takes nothing against them. ISSUE: What if all material questions are answered as to one party but not to others? May the trial court properly sever the case and enter judgment as to the party who obtained all necessary jury findings?

YES. Court may do so. Why were the unanswered jury questions immaterial to the Defendant hospital? --Could not alter the legal effect of the judgment, because no matter how they were answered the same answer is reached: P takes nothing. The court makes clear (IMPORTANT) - The only basis for the liability of the hospital was its own negligence. There was no issue of agency by the other defendants acting for the hospital, respondeat superior, or the like, nor was there any cross action against the hospital seeking indemnity or contribution. So the severance was appropriate, and the hospital is done. Split the lawsuit into independent lawsuits that proceed independently. Each given a docket number (usually by adding "A" or "B" after original docket number). Mistrial as to the other defendants because the jurors are not able to reach a verdict.

What is net worth? Is discovery allowed re net worth?

YES. Disco allowed.

Alignment Issues - cases so far assume the alignment of the parties as reflected in the pleadings is the proper alignment for purposes of allocating peremptory strikes. Problem because more difficult when the parties who are nominally on different sides share common interests. EX: In a products liability suit, the P bull owner filed suit against the laboratory at which an insecticide was applied and against the insecticide manufacturer seeking damages for the bull's death. The P and D lab both claimed during VD that the insecticide had been improperly labeled by the manufacturer. The court of appeals did not hold that the lab should have been "aligned" with the P. However, the allocation of 12 strikes to the P, 6 to the lab and 6 to the manufacturer resulted in an 18 to 6 imbalance of strikes against the manufacturer. 1) Can there be more than 2 sides for purposes of equalizing peremptory strikes? 2) May co-parties collaborate on the exercise of peremptory strikes so there are no double strikes?

YES. Dunn (TXSC) - "whether the parties collaborate in selecting jurors to be struck" is a factor in deciding the extent to which equalizing promotes the ends of justice and prevents an unequal advantage. Rule 233 does not prohibit collaboration. TCt has the discretion to allow collaboration or not under the caselaw (rules are silent)

Effect of Defective Pleadings Can you get a directed verdict based upon your opponent's defective pleadings?

YES. If you specially excepted to the pleadings, even if the trial court overruled you. So if the P pleads COA #1, but puts on evidence for COA #2 over your objection. You can move for a directed verdict on the grounds that the pleadings won't support recovery on ground #2. In theory, your opponent is supposed to move for a trial amendment to get that ground pled, once you've objected to proof coming in on the unpled grounds. Failure to specially except to a defect of form or substance in the nonmovant's pleadings, however, waives the pleading defect and the movant's entitlement to a directed verdict on that basis. Tex. R. Civ. P. 90.

Matter of Marriage of Knighton,685 S.W.2d 719 (Tex. App.—Amarillo 1984, no writ). FACTS: Divorce case. Mother appealing conservatorship of father over two sons. Jury argument that mom's religion was a cult, and allowing her to have custody of sons was equivalent of "burning them at the stake" if mom is given custody. Evidence showed it was a strict religion, but not a cult. According to the appellate court, was the final jury argument by Mr. Knighton's counsel improper?

YES. Improper to suggest the's in a cult if that's not true. Not a mainstream religion, but no evidence it was harmful. Not a reasonable inference. If so, does it require reversal? Remember, in any appeal, must show: 1) error - yes, TCt shouldn't have allowed this "cult" argument 2) preservation - yes, a timely objection during the argument 3) harmful - was the argument such that it probably resulted in an improper judgment? YES. HERE, YES. Improper. H's attorney exceeded the bounds of permissible jury argument. Attacked her religious beliefs (as a "cult" etc.), but the record did not disclose any policies or practices of her church that could be construed as physically harmful to her kids. But counsel repeatedly referred to her religion as a cult and that giving her conservatorship would be condemning the kids to a cult-existence. Appeals to religious prejudice are improper. State cannot consider religious views of parents when determining BIOC Reversed and remanded.

The overruling of a motion for new trial does not preclude a party from filing a motion to modify, correct or reform the judgment within thirty days of the signing of the judgment. So if you file a MNT, it gets overruled, can you still file a Motion to Modify and extend plenary power that way?

YES. It's not either/or. You can file both. "Well, if you won't give me a new trial, can you at least modify the judgment to do this?"

If at the end of the day, you realize that an element is missing from a ground after verdict but before judgment, can either party ask the trial court to make a finding on the ground?

YES. Rule 279. Waived the jury finding by not complaining at the jury conference, but Rule 279 allows you to still ask the trial court.

Can a fatal conflict be waived?

YES. Since the adoption of the appellate rules of procedure that a fatal conflict CAN be waived today if you don't object to the conflict before the jury's discharge and ask that the jury be retired with instructions to reconcile the conflict in their answers. If you don't do this, you don't preserve your complaints or you can't raise that complaint on appeal. Today, fatal conflicts are less common since moving to broad form submission, and the fact that IRDs are not submitted as questions but only as instructions. Much less likelihood of having conflicting jury findings than in 1949 when jury submissions were submitted element by element and IRDs.

Is broad form now mandated under Rule 277?

YES. TODAY, 277 states "In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions."

What if the TCt is tardy in making findings of fact? Instead of 40 days, they make them 50 days? Do they still count?

YES. The appellate may consider them even though they might be late.

Harris Cnty. v. Smith, 96 S.W.3d 230 (Tex. 2002). *KEY HOLDING: If there's any question whether there is legally sufficient evidence to support an element of a ground of recovery or defense, it must be submitted in a separate question, NOT broad form.* FACTS: The trial court submitted two broad-form damage questions predicated on a finding that the deputy sheriff was negligent. -The county objected that there was no evidence of the husband's loss of earning capacity or that the wife sustained any physical impairment, but the objection was overruled. -The appellate court concluded that the error was harmless because there was ample evidence on properly submitted elements of damage to support the jury's awards to both the husband and the wife. ISSUE: Did the trial court commit harmful error by submitting a broad-form damage question over objection that included multiple elements of damage, when one lacked any evidentiary support?

YES. The majority applies Casteel's presumed harm analysis to damages jury questions and reverses. -Can't tell if jury damage finding based on an element of damages supported by evidence or an invalid element of damages, not supported by evidence. -Again, this is the second type of reversible error; like Casteel, can't tell the basis for jury's verdict if the improper ground commingled with the proper ground; prevents party from presenting case on appeal. Thus, reversible error because harm is presumed. *Does it matter to the majority if the damage total found by the jury is supported by the evidence?* No. Again, we can't know if the jury's damages finding is based on proper or improper damages. HELD: The Texas Supreme Court found that: (1) the trial court clearly erred when it did not sustain the objection and correct the charge, (2) Casteel's reasoning applied to broad-form damage questions, and (3) the error was harmful because it prevented the appellate court from determining whether the jury based its verdict on an improperly submitted invalid element of damage under Tex. R. App. P. 61.1(b). DISSENT: this is going back to separate and distinct jury submission

Ungranting New Trial Orders Situation: Trial court grants a new trial, then "ungrants" it (or vice versa) Once a new trial has been granted, the trial court's plenary power remains effective until a new judgment is rendered and during the periods of plenary power provided in Civil Procedure Rule 329b. When a TCT grants a new trial, it implicitly (if not explicitly) vacates the previous judgment, because we're having a new trial. [No more DAY ZERO; it's gone]. But then the court starts thinking that maybe there's no need for a new trial after all and sends out a letter to "ungrant" that new trial, it's not necessary. Can the trial court do that?

YES. They have plenary power - absolute power over the judgment. Once the TCT "ungrants" the new trial and restores the original judgment, the day it restores the original judgment is going to be DAY ZERO for purposes of appeal. (This could be months later).

Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91 (Tex. 1999) (per curiam). FACTS: Plaintiff sues asserting the Ds acted in bad faith and conspired to wrongfully deny her worker compensation benefits. She sought actual damages, exemplary damages and attorney fees. D Walmart requested the attorney's fees jury question be limited to the discrimination claim. The jury found for Plaintiff and an award of attorney's fees. At the post-verdict stage, Wal-Mart asserted (for the first time) in its motion for jnov, that attorneys fees are not recoverable as a matter of law under the statute relied upon by Plaintiff. It's more in the nature of a tort, so no attorneys fees should be available, thus it is an immaterial matter and the jury's answer should be disregarded. ISSUES Did Wal-Mart preserve error on its claims that attorney's fees are not available for statutory retaliatory discrimination claims? Was Walmart's request timely?

YES. This shouldn't have gone to jury because as a matter of law attorney's fees are not recoverable under this statutory claim. *Was Wal-Mart required to urge this objection at the charge conference?* NO. Not a fact issue for the jury, so do not have to preserve error prior to jury submission *Did Wal-Mart invite error by asking the court to limit the jury's decision on attorney's fees to only the discrimination claim?* NO. It's not invited error; it's immaterial. You can make an objection to immaterial findings post-verdict. So the jury's finding can be disregarded. *Is the jury finding regarding the amount of attorney's fees immaterial so the jury finding may be disregarded?* YES. The availability of attorney's fees under a particular statute is a question of law for the court. Consequently, the jury's finding about the amount of reasonable attorney's fees is immaterial to the ultimate legal issue of whether such fees are recoverable under former article 8307c as a matter of law.

Garza v. San Antonio Light, 531 S.W.2d 926 (Tex. Civ. App.—Corpus Christi 1975, writ ref'd n.r.e.). FACTS: The trial court, in response to a question from the jury during deliberation, gave additional instructions by sending a note to the jury. The parties declined the court's invitation to make additional jury argument and all parties agreed to the delivery of the note by the bailiff to the jury room. Issue: Can the parties waive the right to have the jury brought back in to receive the supplemental instruction?

YES. Waived the formalities of 286.

First Nat'l Bank at Lubbock v. J.E. Mitchell Co., 727 S.W.2d 360 (Tex. App.—Amarillo 1987, writ ref'd n.r.e.). FACTS: the jurors were asked in Q1 if this property was homestead of Shaws during a certain time period. Q2 asks whether the Shaws abandoned homestead during the exact same time frame. Is that legally possible? Jury answered both questions yes. It is legally impossible to have a homestead and abandon it at the same time under the definition. So there's a conflict in the jury's answers Did the trial court error in entering judgment based upon a verdict that contained conflicting jury findings?

Yes, and it was preserved by counsel pointing out the conflict before the jury is discharged. *Was there a fatal conflict?* Yes. Conflicting jury questions regarding a material fact (whether it was a homestead) that could not be reconciled, so the TCt erred in entering a judgment based on the jury's findings.

Does a trial judge have broad discretion to decide what goes into the jury charge?

Yes, but they cross the line when include information that is not necessary to decide the case. Otherwise, you'd end up with both sides trying to add law to the jury instructions and end up with a treatise on the law for the jury, which is not supposed to decide the law.

Appellate Review: The "Different Grounds" Problem Assume a motion for instructed verdict states several alternative grounds. The trial court sustains the motion on one of the stated grounds. If the appellate court finds that ground is invalid, should it uphold the granting of the instructed verdict if the alternate ground stated in the motion is valid?

Yes. "[A] directed verdict should be affirmed if it is supported by ANY ground asserted in the motion, even though the rationale assigned by the trial court for granting the motion was erroneous." In a proper case, a TCt may at the conclusion of the hearing of the evidence take the case from the jury and proceed to render judgment. This may be done on the court's own motion and this power is in no way dependent upon a motion having been filed by a litigant.

Can any party request a jury?

Yes. Any party. EX: P and two Ds. P asks for a jury trial. If the Ds want to make sure they get a jury trial do they also have to demand a jury trial? YES. But Rules say that any party can rely on another party's timely demand for a jury Once you demand a jury, you can only withdraw the request for a jury trial on agreement of the parties. In the old days you would "put yourself upon the country" - that was the language to request a jury trial. Today, you simply request a jury.

Is a voir dire questions about the weight of the evidence improper?

Yes. It's only proper to ask about bias/prejudice against client. Questions shouldn't be about trying to predict the juror's vote, which is improper. Can't try to just preview juror's likely vote based on an isolated piece of evidence. But you CAN see if jurors have a bias against the type of case (medmal, etc.) The scope of voir dire in Texas is broad, however the right is "constrained by reasonable trial court control."

Relationship to Notice of Trial Settings In Texas you are supposed to get 45 days notice of the initial trial setting. Assume you get 46 days notice in advance of the initial trial setting, do you still have time to make a presumptively timely jury demand?

Yes. Presumptive timely jury demand is 30 days. (These rules were changed some some of the case law will have different times listed.)

Is it permissible to amend the pleadings and add a new ground at this phase of the case?

Yes. TRCP 66 directs the trial court to freely allow trial amendments. So long as the other side doesn't show it will be prejudiced.

J. Weingarten, Inc. v. Obiedio, (Tex. Civ. App.—Houston [1st Dist.] 1974, writ ref'd n.r.e.). When a party is seeking to recover in a premises liability case, they have to prove that the D knew of a dangerous condition FACTS: P fell, broke her wrist when pulling a shopping cart in grocery store. When she pulled all the carts came toward her causing her to fall on her hand. *Is circumstantial evidence enough to defeat a motion for instructed verdict based on a no evidence complaint?*

Yes. The circumstantial proof in this case established more than mere neutral circumstances of control and management and tended to affirmatively establish the bent and defective condition of the carts. Jury could have properly concluded from the evidence that injury was caused by negligent failure to repair or replace damaged carts D argued there was no direct evidence, so they deserve instructed verdict. Court, nope. *Circumstantial evidence CAN raise a fact question.* What kind of evidence do you need to get to jury? That there's a factual issue.

The language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word 'final'. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself." "If a defendant moves for summary judgment on only one of four claims asserted by the plaintiff, but the trial court renders judgment that the plaintiff take nothing on all claims asserted, is the judgment final post-Lehmann?

Yes. the judgment is final;-erroneous, but final. A judgment that grants more relief than a party is entitled to is subject to reversal, but it is not, for that reason alone, interlocutory." So judgment if final for purposes of appeal so if no appeal is timely perfected, the right to appeal will be lost.

Multiple Orders and the One Final Judgment Rule Tex. R. Civ. P. 301 provides that there's "Only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law." (Ex. Probate, Receivership)

You appeal from the one final judgment, not discrete interlocutory order; UNLESS it is an interlocutory order that specifically has statutory authority to be appealed (EX: temporary injunctions, etc.) *Exception* to the one final judgment rule in probate and receivership cases. Don't have to wait in those cases before you can appeal.

What happens when evidence is improperly excluded and a trial court grants an instructed verdict?

You are arguing on appeal that the instructed verdict was improper because there was competent evidence that was offered, but was improperly excluded it. Make an offer of proof and get a ruling on that. Get up to the appellate court, and they agree. Generally, legal sufficiency complaints are rendition; reverse and RENDER as a matter of law. However, when evidence is improperly excluded that would have raised a fact issue and an instructed verdict was granted, the remedy of the complaining party on appeal is to obtain a reversal of the judgment and a retrial. *Reverse and REMAND.*

Combining Multiple Requests Prior to Payne's "one test" the courts of appeals were hostile to combined requests. However, post-Payne, the TXSC has directed the courts of appeals to take a common sense approach to en masse requests.

You are generally not supposed to make an "en masse" request for the whole jury charge you want. Instead, submit in chunks as needed. But some local rules do require the full jury charge you want

Fraser v. Goldberg, 552 S.W.2d 592 (Tex. Civ. App.—Beaumont 1977, writ ref'd n.r.e.). If you file a request for findings of fact after a full blown trial on the merits (so that making findings of fact is NOT discretionary) and the trial court doesn't make them, what do you do?

You can argue that you are prejudiced by the trial court not making findings because you haven't been able to narrow your grounds. *You would ask the appellate court to order the trial court to make the findings before you brief your case*. Because you have a right to at least see if the court found against you on all grounds. However, the refusal of the trial court to make findings of fact that are a matter of right may not be reversible error. It could be harmless. *Is it reversible error for the trial court to fail to make properly requested findings of fact after a bench trial with a conventional trial on the merits?* Not always. Could be harmless error. *Was there harm in this case?* No. This is a one ground case. The purpose of the findings of fact is to narrow your grounds. You know what the ground is, if it's only one ground. *Even if it were a multiple ground case, we wouldn't reverse and remand for a new trial; we would abate the appeal and direct the trial judge to make the findings.* (as in Texas Eastern case)

During VD, the district judge overruled a challenge for cause directed at a panel member who was a shareholder of the D corporation. What must P's counsel do to preserve the complaint when you believe a challenge for cause has been improperly overruled?

You have to advise the court by name of the jury panelist that will remain on the jury because of the loss of your strikes. EX: "Judge, because of your ruling denying a strike for cause against juror #3; we ran out of peremptory strikes and therefore juror #9 remained on the jury" Have to do this BEFORE you issue peremptory strikes. Then, use all your peremptory strikes. Why? Goes to harm. In any successful appeal, you have to *1) show the TCt was in error* - convince appellate court that trial court was wrong. (Here, the TCt was wrong because of the pecuniary conflict on interest of a shareholder of the corporation) *2) That you preserved that error* (by advising the court of the objectionable juror that may remain, using all strikes after that, because that goes to show harm) *3) error was harmful* (probably resulted in an improper judgment). There's actually no real way to show that the juror remaining on the jury resulted in a proper judgment. So, you have to show that it was a *close case ("hotly contested"); that the evidence was "sharply conflicting"; that it could go either way*. And that in all probability the juror remaining had an effect. But if the other side strikes that person that would have been struck by you, then you don't have any harm because that person didn't serve; so you can't get a reversal.

How and when do you preserve error to complain of an incomplete verdict?

You object to discharging the jury before the jury is discharged and point out the unanswered material questions to the court.

TRCP 286: After having retired, the jury may receive further instructions from the court touching any matter of law, either at their request or upon the court's own motion. For this purpose they shall appear before the judge in open court in a body, and if the instruction is being given at their request, they shall through their presiding juror state to the court, in writing, the particular question of law upon which they desire further instruction. The court shall give such instruction in writing, but no instruction shall be given except in conformity with the rules relating to the charge. Additional argument may be allowed in the discretion of the court. Suppose no agreement of counsel had occurred; what if one counsel wanted the jurors to be brought back to the courtroom?

You'd object; make sure the court reporter got it down, and say that 286 requires the jury to be brought back. You might also want to make additional argument regarding the new instruction. You don't have a right as counsel to a supplement charge; but the court has the discretion. Your right to get things into the jury charge ends at the charge conference.

To get to TXSC: 15 page Petition for Review

Your hook to convince the TXSC that your case is important to the law of TX. Pick out strongest arguments and try to fit it into why TX law needs to develop in response to the questions in your case. TXSC has great discretion on what cases to hear. Justices have about 20 minutes per Petition for Review Might call for an internal review memo by clerks Might ask for a response (court won't grant Petition for Review without asking for Response) Might ask for Appellant Brief on the Merits - includes all arguments

In Harris County, which is different from most other counties, has a local rule that allow a lawyer in a case to file a *vacation letter* that gets you ...

a 2 week period of time to designate as your vacation time in which you cannot be called to try a case. Very helpful if you have nonrefundable airfare! Ability to get a continuance in other situations often depends on whether the particular court is going to be rigid in enforcing the docket or flexible. Need to know your judge and local rules. Generally, if it's an agreed continuance (both parties agree), the court generally will allow the continuance for absence of counsel. They don't have to. There's usually enough set on the docket that the court can just move on to the next case. So, if you're 15th on the docket, between settlements/continuances/etc. there's a decent chance you will go to trial; as opposed to being 30th on the docket.

Examples Party with the BOP won a verdict from the jury. Opposing party will probably file

a JNOV claiming the right to judgment and asserting the verdict winner has introduced "no evidence" to support the verdict (not made out a case supporting submission of any factual issues to the jury.

Challenges for cause

a claim that a juror has demonstrated probable bias; assert a prospective juror is not legally qualified. These are unlimited.

Mandamus is difficult to get, because you have to show

a clear abuse of discretion in the trial court's order AND you have no adequate remedy by appeal down the road. So you need immediate review. EX: TCT orders you to disclose something you think is covered by attorney-client privilege. Can't appeal interlocutory discovery ruling (not in the statutory list). So you either have follow TCT's order or bring mandamus challenge. Waiting for an appeal down the road won't unring the bell on appeal after full trial. So you use mandamus. Time frame for filing writ of mandamus: act promptly.

"Nudging instructions"?

a comment of the court on the weight of the evidence that pushes the jury toward one party or another. Texas judges can't do this (unlike federal court) Judge CANNOT say things like "that evidence is really weak" etc. If judge nudges jury, that is improper and can be the basis for reversal.

Rule 45 states, in pertinent part: "If the court of appeals determines that an appeal is frivolous, it may--on motion of any party or on its own initiative, after notice and a reasonable opportunity for response--award each prevailing party just damages." TEX. R. APP. P. 45. Whether to grant sanctions is

a matter of discretion, which we exercise with prudence and caution, and only after careful deliberation. Although imposing sanctions is within our discretion, we will do so only in circumstances that are truly egregious. Where an appellant's argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed, good-faith challenge to the trial court's judgment, sanctions are not appropriate.

You raise a factual sufficiency complaint at the trial court level with

a motion for a new trial. That's how you preserve that complaint for appellate review in jury trial

The time for filing a petition for review to the Texas Supreme Court is extended by the timely filing of

a motion for en banc reconsideration. (PFR due within 45 days of the court of appeals last ruling on any timely filed motions for rehearing or motions for en banc consideration) Trap 49.7 sets forth time frame for filing a Motion for En Banc Reconsideration. Day 0 is when any motion for rehearing/en banc is overruled.

Motion to Modify the Trial Court's Judgment; Plenary Power Rule 329b(g) of the Texas Rules of Civil Procedure provides that "[a] motion to modify, correct, or reform a judgment . . . Shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as

a motion for new trial." Tex. R. Civ. P. 329b(g)

TRCP 306a(4) No Notice of Judgment. Designed for a situation where a litigant or their lawyer is unaware that a judgment has been signed. If no notice OR actual knowledge within 20 days after judgment is signed; then

a new day zero when they do first get notice or knowledge; but this can't be extended longer than 90 days after the original judgment was sign. *Two key inquiries here:* 1) did party get notice or knowledge of judgment within 20 days? ---If not, then new day zero when they get it, and get 30 days to respond from than new day zero 2) if not, did they get notice or knowledge within 90 days? --If past 90 days, too bad, too late. Hearing to prove up the day when notice/knowledge of judgment was acquired (provided it was after 20 days but before 90). Must use "sworn" motion. Can hold this hearing at any time TCT still has plenary power. Need to get this finding of fact: when notice/knowledge occurred so the ACt knows the TCT still have jx

If JNOV is overruled and judgment rendered for verdict winner... Opposing party may also move for

a new trial because of "insufficient evidence" on the theory that even if a case supporting submission to the jury was made out, it was a barebones case with "insufficient evidence" greatly outweighed by contrary evidence in the record as a whole.

NOTE: a "no evidence" MSJ that is denied does NOT preserve

a no evidence complaint for appeal

TXSC or in vacation a justice of the TXSC may issue a writ of habeas corpus when

a person is restrained in his liberty by virtue of an order, process, or commitment issued by a court or judge on account of the violation of an order ,judgment, or decree previously made in a civil case.

Definition of Relator -

a person who brings a public lawsuit, typically in the name of the Attorney General, regarding the abuse of an office or franchise. term is used for party bringing mandamus action

In a legal sufficiency review of a clear and convincing evidence standard, a court should look at the *evidence in the light most favorable to the finding* to determine whether

a reasonable trier of fact could have formed a firm belief or conviction that its finding is true based on the evidence presented. While the review must acknowledge reasonable inferences in favor of the finding, it cannot disregard undisputed evidence, even if it's contrary to the verdict

Overlooked Claims and the Mother Hubbard Claims Unfortunately, judges sometimes insert finality language into a summary judgment order that does NOT dispose of all issues and parties and that, absent such language, would functionally be a partial summary judgment. This is known as a "Mother Hubbard Clause" =

a recitation that "all relief not expressly granted is denied" or "Plaintiff take nothing as to all claims".

A party preserving a "no evidence" complaint only by a motion for new trial cannot obtain rendition on appeal, only

a remand for a new trial if the complaint has validity. Malpractice? Carlson: thinks it is borderline, because it is asking for remand when you should be asking for rendition.

Mandamus is a powerful tool which, in the absence of restraint, would disrupt the orderly process of administration of justice. Thus, the writ is designed to be

a remedy of last resort to be invoked only when no other adequate remedy, such as appeal, is available.

Trial Court Discretion Generally, a judgment debtor has an absolute right to suspend enforcement of a judgment pending appeal unless

a rule of procedure or a statute provides otherwise. Thus, whether to allow supersedeas is usually not within the trial judge's discretion. However, when a judgment is for "something other than money or an interest in property" (such as an injunction), TCT discretion

General rule: Interlocutory orders are not appealable until rendition of final judgment UNLESS

a statute authorizes an appeal before a final order is signed.

When evidence is improperly excluded, how to preserve complaint?

a timely offer of proof and a ruling is required to preserve that complaint. What is that? Why is it required? --You are putting in record for potential appellate review what that evidence would be, so the appellate court can decide whether it was improperly excluded and whether it was harmful. (EX: if it is just cumulative of what 5 other witnesses said, it won't be harmful)

Standard for reinstating the case after it's been DWOP'd is

a very Liberal standard Mandatory language in the TRCP 165a - The Court *SHALL* reinstate the case upon finding, after a hearing, that the failure of the party of the lawyer was NOT intentional or the result of conscious indifference but was due to an accident or mistake or otherwise reasonably been explained. Conscious indifference = Means more than mere negligence. EX: calendared case wrong, got DWOP'd. Court will reinstate the case EX: decided to go to beach instead because it's a nice day. Will NOT be reinstated because shows conscious indifference to the setting.

A jury trial in a civil action may be waived unless

a written request for a jury trial is filed with the clerk of the court a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than 30 days in advance. TRCP 216 In addition, a jury fee must be paid.

Tex. E. Transmission Corp. v. Sealy Indep. Sch. Dist., 572 S.W.2d 49, 51 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ). Should the appellate court determine a party was harmed by the trial court's failure to make properly requested findings of fact, the proper remedy ordinarily is to

abate the appeal and direct the recalcitrant trial judge to make those findings. *When would a reversal and remand be warranted?* -If the Judge who conducted trial is no longer on bench

Ex Parte McDonald (Tex. 1969) The Court of Criminal Appeals has general habeas corpus jurisdiction, while the Texas Supreme Court has jurisdiction only regarding

adjudicated contempt as a result of alleged violation of a civil court order. The courts of appeals have jurisdiction concurrently with the Texas Supreme Court. Trial courts also have habeas corpus jurisdictions, but unlikely they will find their own order "void".

An appellee may present alternate grounds for

affirming the judgment without filing a cross-notice of appeal. You're satisfied with judgment, not asking for anything more; just presenting alternative grounds as a back up that the ACt could use to support judgment in case it reverses on the grounds you won on in the TCT

If it's incurable argument, if it's so inflammatory the jury could not be expected to follow an instruction to disregard, you can make your objection

after jury comes back, by a motion for a new trial. But it's hard to know in the moment of opposing counsel's oral argument if it is curable or incurable, so go ahead and object during argument.

RULE 279. OMISSIONS FROM THE CHARGE When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may

after notice and hearing and at any time before the judgment is rendered, *make and file written findings on such omitted element or elements in support of the judgment.* If no such written findings are made, such omitted element or elements shall be *deemed found by the court in such manner as to support the judgment.* A claim that the evidence was legally or factually insufficient to warrant the submission of any question may be made for the first time after verdict, regardless of whether the submission of such question was requested by the complainant. What the heck is going on here? We're trying to salvage the judgment and punishing the parties for not objecting or requesting.

CHAPTER 5:JURY ARGUMENT TIMING: Jury argument (AKA "closing argument") takes place

after the charge is read to the jury by the trial judge. TRCP 269 After the charge conference, the jury is read the charge, the parties can make closing arguments.

If there is a charge defect on an otherwise valid ground, you must object at the charge conference or your complaint is waived. If, on the other hand, it is a matter of law that shouldn't go to the jury in the first place, then you can make an objection

after the jury verdict (as in last case at JNOV stage)

Under Tex. R. App. P. 24.2(c)(1), a judgment debtor who provides a bond, deposit, or security based upon its net worth must simultaneously file

an affidavit that states complete, detailed information concerning the debtor's assets and liabilities from which net worth can be ascertained.

Texas Rule of Appellate Procedure 24.2(c) A judgment debtor who provides a bond, deposit, or security based upon its net worth "must simultaneously file

an affidavit that states complete, detailed information concerning the debtor's assets and liabilities from which net worth can be ascertained." A judgment creditor may challenge the debtor's affidavits, and the trial court must hear the judgment creditor's challenge promptly after reasonable discovery concerning the judgment debtor's net worth is complete. Following the hearing, "[t]he trial court must issue an order that states the debtor's net worth and state with particularity the factual basis for that determination."

Bona Fide Attempt to Appeal A court of appeals may not dismiss an appeal when

an appellant makes a bona fide attempt to appeal, i.e. files a defective instrument (notice of appeal) or even "the wrong instrument required to perfect the appeal without giving the appellant an opportunity to correct the error." If a party makes a bona fide attempt to appeal, they must be given a chance to correct error.

If you've conclusively established a part of the case, you can move for

an instructed verdict on those elements.

*COURT: If there's an improperly conditioned questions, there's no objection to the question, and the jury doesn't answer the question, the parties waived their right to a jury finding on that issue and the court will treat that as

an omitted element DEEMED FOUND IN SUPPORT OF THE JUDGMENT.*

If a county has docket call, and you don't show up, the judge will likely treat this as a:

announcement of ready. Because if you weren't ready you would show up with a motion for continuance.

An appellate remedy is "adequate" when

any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate Although mandamus is not an equitable remedy, its issuance is largely controlled by equitable principles." As a selective procedure, mandamus can correct clear errors in exceptional cases and afford appropriate guidance to the law without the disruption and burden of interlocutory appeal. Appellate courts must be mindful, however, that the benefits of mandamus review are easily lost by overuse. (Dissent (5-4 holding): An appellate remedy is not inadequate simply because the appeal will take longer and cost more. The error in this case (allowing a jury) is correctable on appeal. Mandamus is an extraordinary writ and should not issue in this case.

One or more amended motions for new trial may be filed without leave of court before

any preceding motion for new trial filed by the movant is overruled and within thirty days after the judgment is signed. Tex. R. Civ. P. 329b (b).

When can you make a motion to equalize strikes?

anytime before the exercise of strikes

Remember, a mandamus is technically NOT an

appeal

LAW OF THE CASE DOCTRINE -

appeals court is bound by its previous interlocutory appeal ruling, unless overruled by a higher court

The person who wants to complain about TCT, is known as the

appellant. Not necessarily the party that lost; a party that thinks they didn't win enough can try to obtain more relief. You could have a case where they are ALL appellants (but would be appellee as to each other's claims)

Title of parties At Appeals Court:

appellant/appellee

If no party timely files a motion for rehearing or for en banc reconsideration, a petition for review is due within 45 days from the date the

appellate court judgment was signed. Day 0 is day of judgment

Commencement and Modification of the Appellate Process and Timetables The date on which an appealable judgment or order is signed commences the

appellate timetables.

Actually, any kind of relief that a litigant wants, or the prevention of any apparently unfair practice anticipated from an opponent, can properly be the subject of a motion, and may be requested of the trial judge, who may grant it if the law provides discretion or authority to do so. A motion is, in its simplest terms, an

application for an order of some kind from the court. See Tex. R. Civ. P. 21. The drafting of a motion begins with a conception of the action desired from the judge, of the judge's legal authority, and of the factual basis for doing so. The presentation of the motion may entail argument together with some kind of evidence, written or oral, to show that it is meritorious. As an example, consider that the opponent has filed a tardy jury demand two days before trial. The desired result is a striking of the jury demand, the authority of the court for doing so is Rule 216 and the factual basis is the documents in the clerk's file (of which the judge can take judicial notice) showing the trial setting and the date of the demand. One could put these ingredients into a written request, denominating it a *motion to strike jury demand*, and then argue to the court the reasons discretion should be exercised to strike the demand —such as the increased length of trial, surprise, differences in witnesses or the like. It is in this manner that motions are written

Trial judge abused its discretion denying party's motion to quash jury demand, when parties contract included a jury wavier in the event of litigation. The trial court has no discretion to

apply the wrong law.

Curable -

argument that is improper, but a jury could follow an instruction to disregard. To preserve complaint of improper curable jury argument, you must object during the argument itself. If you don't know whether it is curable/incurable jury argument: OBJECT during the argument!

Incurable -

argument that is so harmful that the jury cannot put it out of its mind; can raise that for the first time in a motion for a new trial. Motion for a new trial is made after the jury returns its verdict and the court enters its judgment. EX: Referred to Nazi experiments on the elderly in a case regarding nursing home.

TXSC - if there's inadequate briefing,

ask the party to rebrief it. Don't refuse to consider merits because of inadequate briefing.

Preservation of Error (Proper Timing) - IMPORTANT To properly preserve error that the trial court improperly denied a challenge for cause, counsel must

at the end of voir dire questioning but before counsel exercises peremptory strikes, identify on the record the objectionable juror who would remain after exercising peremptory challenges. Suggestion: Make sure the juror information cards are made a part of the trial record, so the appellate court will be able to identify the prospective jurors. They are numbered in the order the venire panel is seated. Make sure you address the jurors by their name. Trying to set up a rapport for those that might serve on juror

Depositions In Texas, either party may introduce the deposition of any witness that is taken in the same case, regardless of

availability of that witness.

FRIVOLOUS APPEALS Rare to see frivolous appeal cases in civil cases. Expensive. If the court of appeals determines that an appeal is frivolous, it may — on motion of any party or on its own initiative, after notice and a reasonable opportunity for response —

award each prevailing party just damages" against a party bringing a frivolous appeal.

A party's decision to appeal should be

based on professional judgment made after careful review of the record for preserved error in light of the applicable standards of review.

Certainly, as a general rule, a motion for judgment on the verdict does not extend the appellate timetable. The reason that it does not is not because such a motion is excluded by rule 329b, but because such motion is properly filed

before a judgment is entered. In short, a motion for judgment on the verdict is a pre-judgment motion. T he entry of a judgment non obstante veredicto implicitly overrules a previously filed motion for judgment on the verdict. Therefore, when such a judgment is entered, the trial court disposes of the prior pending motion for judgment on the verdict, and the motion is no longer a "live" pleading that can operate to extend the appellate timetable. It is precisely for this reason that such a motion cannot be considered as a prematurely filed motion for new trial under rule [**7] 58 of the Texas Rules of Appellate Procedure.

Timetable for Extension of Time to File Briefs A motion to extend the time to file a brief may be filed

before or after the date the brief is due. Tex. R. App. P. 38.6(d).

How do you preserve error depends on whether court is allowing in inadmissible evidence or excluding out admissible evidence. *if the court is excluding admissible evidence* =

before the close of the evidence, but not necessarily contemporaneous, must make an offer of proof outside the jury's hearing and get a ruling

The party who has the burden of proof on the whole case (the party who would lose on that point if no evidence is put on) gets to

begin and finish closing argument. (99% of the time it's the P) The party without the burden of proof makes its argument in between. TRCP 266 The burden of proof on the whole case shifts if the Defendant admits liability and damages but for an affirmative defense. (VERY RARE)

Habeas Corpus A lot less common in civil cases than criminal. Habeas on the civil side is only related to

being incarcerated for contempt

REMEMBER: If there are two issues, one of which allows jury and the other doesn't, then...

bifurcate the case. Part heard in front of jury, other part not.

(f) On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by _______ for sufficient cause, filed within the time allowed by law;

bill of review

To satisfy due process requirements for habeas,

both a written judgment of contempt and a written commitment order are necessary to imprison a person for civil constructive contempt of court. Even when a written judgment or order of contempt is signed, a written order of commitment delivered to the sheriff or other appropriate officer is necessary to legally imprison a person. There is no particular form, however, prescribed by law for an order of commitment. The directive that a person be placed in jail and detained may be contained in an authenticated copy of the court's judgment or in a separate order signed by the judge or by the clerk of the court at the judge's direction.

Rule 286: If the court gets a note from the jury, the judge has the discretion to answer or not. If the judge decides to give additional instructions, the jury should be:

brought back into court; give additional instructions in writing; and should give counsel opportunity to make objections/requests. The court can allow additional argument by counsel to address new matters. This is a '*supplemental charge*"

NOTE 2: A summary judgment is a judgment as a matter of law. So making a request for findings of fact doesn't extend the timetable because

by definition summary judgment involves no genuine issue of material fact.

Matters of Common Knowledge -

can be argued to the jury even if not directly raised by the evidence. EX: proverbs, historical quotations, lyrics from songs, etc.

If there's no competent evidence to support a finding of fact, the appellate court

can disregard

Consequences of Failure to Announce Local court rules differ on the severity and finality of the consequences which attach to a failure of one or both parties to make an announcement at a docket call. Generally speaking, it will

cause counsel to forfeit control over the date on which the case will be tried. The failure of the Plaintiff to announce may result in dismissal of the action Most common local rule is that when neither party announces ready, the case is taken off the docket. In some counties, it cannot be reset for a fixed period. Local rules differ as to the consequences of only one party's making an announcement. In some counties, failure to announce is equated with an announcement of "ready." In other counties, the announcement of the party appearing will prevail, and the case will be passed or tried at that party's request.

Tex. R. Civ. P. 287 Disagreement as to Evidence: If the jury disagree as to the statement of any witness, they may, upon applying to the court, have read to them from the court reporter's notes that part of such witness' testimony on the point in dispute; but, if there be no such reporter, or if his notes cannot be read to the jury, the court may

cause such witness to be again brought upon the stand and the judge shall direct him to repeat his testimony as to the point in dispute, and no other, as nearly as he can in the language used on the trial; and on their notifying the court that they disagree as to any portion of a deposition or other paper not permitted to be carried with them in their retirement, the court may, in like manner, permit such portion of said deposition or paper to be again read to the jury.

Acceptance of the TCT's remittitur order precludes party who files the remittitur from

challenging the validity of the order on appeal on the theory it was made "under protest." But if the party benefitting from the remittitur appeals, the remitting party is NOT barred from appealing the trial court's judgment and from contending on appeal that the remittitur should not have been required.

If it's a defective submission of a valid ground, then you have to object at the

charge conference and get a ruling or you waive it

All Causes" of Law or Equity *Cause defined:* "A suit, litigation, or action. Any question, civil or criminal, litigated or contested before a court of justice." Very broad, but Not all adversary proceedings qualify as a "cause" under the Judiciary Article. Which civil cases are exempt from jury trials because they are not a "cause"? Decided on a case-by-case basis. EXCEPTIONS

civil contempt proceedings, election contests, habeas corpus proceedings for the custody of minor children, suit for removal of a sheriff, appeals in administrative proceedings, and others. Have a right to jury trial in all other causes.

rules require the court to read the charge to the jury before ...

closing arguments, and the jury takes the jury charge with them to the jury room for the jury to answer the questions.

TXSC, or in vacation, a justice of the TXSC may issue a writ of mandamus to

compel a SCC, SPC, or DCt judge to proceed to trial and judgment in a case.

Family Law Cases When the jury's verdict is merely advisory, as in the determination of equitable division of matrimonial property, or child support, there is no right to ...

compel the trial judge to submit the matter to a jury. In Winsett v. Edgar, the Fort Worth Court of Appeals held that there is no right to jury trial in an action for a protective order in a family violence case. 22 S.W.3d 510 (Tex. App.—Fort Worth 2000, pet. denied).

Suspending Enforcement of the Judgment Pending Appeal: Money Judgment To suspend collection on a money judgment, the security on appeal will ordinarily have to be in an amount covering

compensatory (not punitive) damages, interest for the duration of the appeal, and costs subject to ceiling.

When Rule 324(b) requires a motion for new trial to preserve error, the complaining party is required only to

comply with the filing requirements in Rule 329b to preserve the points of error.

Admissions are

conclusive proof of the matter covered even if not introduced into evidence, but the better practice is to introduce them.

No mandatory supersedeas: Constitutional constraints preclude procedures that would

condition a litigant's right to appeal on posting security in the amount of the judgment.

The law regards a stipulation as a

contractual agreement. It will be given no more force than the parties intended it to have. As with any contractual agreement, the intention of the parties should be determined by the language used in their stipulation. A court will not construe a stipulation to effect admission of something intended to be controverted or to waive a right not plainly agreed to be relinquished.

The Eichelberger Rule In Eichelberger v. Eichelberger, 582 S.W.2d 395, 400 (Tex. 1979). The Texas Supreme Court has jurisdiction to correct a decision of the court of appeals which is

contrary to a decision of the United States Supreme Court or with the "'supreme law of the land' as established by the Congress and Supreme Court of the United States."

Tex. R. Civ. P. 267(d): Witnesses placed under THE RULE (Evidence Rule 614) shall be instructed by the court that they are not to

converse with each other or with any other person about the case other than the attorneys in the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under the rule.

Generally, mandamus will issue only to

correct a clear abuse of discretion or the violation of a duty imposed by law when an adequate remedy by appeal does not exist. Mandamus should not issue to correct grievances that may be addressed by other remedies. Used selectively, mandamus can correct clear errors in exceptional cases and afford appropriate guidance to the law without the disruption and burden of interlocutory appeal

NOTE 2: Once a juror disagrees with fellow jurors, they are not supposed to be

cut out of conversation. But we won't be able to get that into evidence if it happens.

If neither party asks the trial court to make a finding, the appellate court will "work its magic" and

deem that element found in support of the judgment as long as there's some evidence in support in the record. Therefore the judgment gets affirmed. Rule 279. Rule 279 deeming principles are only available when the parties fails to object or request a missing element of a partially submitted ground as a way to salvage the judgment.

Compliance with Appellate Rule 34.6 When going up on partial record, the appellant must

designate their appellate complaints at the time of filing notice of appeal. If a party complies with rule 34.6: The reviewing court must "presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points." If a party fails to comply with rule 34.6: The reviewing court must presume that the missing portions of the record do contain relevant evidence and that the omitted evidence supports the trial court's judgment.

If a court of appeals affirms a challenged jury verdict as being supported by factually sufficient evidence, the court need not detail all the evidence in support of the verdict, but if the court holds that the verdict is not supported by factually sufficient evidence and effectively sets aside the jury verdict by reversing the trial court's judgment, the court must

detail ALL the relevant evidence and explain how it outweighs evidence supporting the verdict or how the verdict is so against the great weight and preponderance of the evidence that it is manifestly unjust

Pool requirement: If the appellate court sustains a factual sufficiency complaint, it should, in its opinion, ...

detail the evidence relevant to the issue in consideration and clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias. Carlson: "trust but verify." TXSC can't review factual sufficiency complaints, but they CAN review the standard the ACt used in ruling on factual sufficiency complaints. Further, those courts, in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. It is only in this way that we will be able to determine if the requirements of In Re King's Estate have been satisfied.

Review of Punitive Damage Awards Factual insufficiency review of punitive damages: The court of appeals, when conducting a factual sufficiency review of a punitive damages award, must

detail the relevant evidence in its opinion, explaining why the evidence either does or does not support the punitive damages award. While excessiveness of damages is a factual matter and is final in the appellate court (TXSC doesn't do factual sufficiency/remittur), the constitutionality of the award of exemplary damages is a legal question, and thus the Texas Supreme Court has jurisdiction. Deprivation of property without due process of law - concern with excessive punitives

However, In Re King's Estate established that the supreme court might take jurisdiction, notwithstanding the finality of judgments of the courts of civil appeals on fact questions, in order to

determine if a correct standard had been applied by the intermediate courts.

The Texas Supreme Court cannot review factual sufficiency claims, except to ...

determine if the correct standard was applied by the court of appeals in conducting the review.

Statutes Specifying A Different Timeframe In very rare instances, statutes may provide for an accelerated appeal with a

different timeframe to perfect the appeal. Example: Appeal of Primary Election Contest is to be perfected within *5 days* of signing of the trial court order.

Evidence may include

discovery products: depositions, interrogatories, admissions may be read to the jury.

Request for Admissions -

discovery tool similar to stipulation in that there's no need to prove the matter that is admitted or agreed to

Mandamus will NOT issue to control an action of a lower court in a matter involving

discretion; however, in some instances, it may issue to remedy a "clear abuse" of discretion.

If an appellate court lacks subject matter jurisdiction it will

dismiss the appeal for want of jurisdiction.

The Restated Scope of "No Evidence" Review "[A]ppellate courts must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and...

disregarding contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005).

The problem of the vanishing client is particularly acute in which type of cases?

divorce and personal injury cases. An attorney is well advised to obtain several places through which to get in touch with a client, including work, home, and next of kin or other persons who will know the client's whereabouts, and to make it clear that if the client moves, he or she must keep in touch with the attorney's office and make any new address known. Include in retainer agreement duty to keep counsel informed.

When seeking mandamus, a party is asking a higher court to order a lower court to

do something.

Accelerated Appeals IMPORTANT: Filing a motion for new trial or any other post-judgment motion or request for findings of fact,

does NOT extend the time to perfect an accelerated appeal. You just have the time period the rules give you and that's it. Generally 20 days from the date the interlocutory order or appealable judgment is signed. Whether you file a MNT or anything else after the appealable order is signed it does NOT push back the timetable like it would ordinarily.

A complaint that the expert's testimony is unreliable

does NOT preserve the complaint that the expert was qualified to testify.

Failure to Pay Filing Fee When a litigant timely files a motion for new trial to assert a factual sufficiency complaint, but fails to pay the motion filing fee, the motion for new trial extends the time to perfect the appeal, but

does not preserve the factual sufficiency complaint or other complaint asserted therein.

Question of Law whether judgment error being corrected is clerical or judicial. "The salient distinction between 'clerical' and 'judicial' errors lies in the exercise of the judgmental offices of the court. A clerical error is one which

does not result from judicial reasoning or determination. . . . When a prior judicial determination is evidenced, but the signed judgment inaccurately reflects the true decision of the court, the error is clerical and may be corrected."

Doctrine of Fundamental Error -

doesn't have to be preserved. Very small class of complaints, but it DOES include SMJ (lack of standing, sovereign immunity). These can be raised for the first time on appeal, but very little.

(Trial court has a reasonable time after contemnor is jailed, to

draft the contempt order or judgment.)

After prospective jurors report, the judge in charge may determine that each person is qualified (see below) and does not claim any exceptions. Judge may hear any reasonable sworn excuse. If reasonable, judge can release or reschedule juror's duty. Cannot excuse for an economic reasons unless ...

each party of record is present and approves the release of the juror for that reason (thus economic reasons are heard during voir dire)

Gov. C. § 22.221. Writ Power. - Courts of Appeals Appeals courts and justices of appeals courts may issue writ of mandamus and all other writs necessary to

enforce the jx of the court

RULE: When there are no objections to an incomplete/partial verdict, the trial court has the option to

enter a judgment based on the answered questions or grant a mistrial.

Harmful/Reversible Error

error that probably resulted in an improper judgment

Testifying experts

everything that you discuss with them is discoverable by the other party. So there's a balance between telling a testifying expert what they need to know to help you with the case, but not revealing info you don't want before the fact-finder

Bench trial: In a nonjury case, trial by implied consent occurs at the proof stage when

evidence is introduced without objection that the evidence offered on a ground is outside the pleadings.

Negative Net Worth A money judgment debtor with a negative net worth is

excused from posting appellate security. "Underwater" - their liability exceeds their assets. File an affidavit of net worth. G.M. Houser, Inc. v. Rodgers, 204 S.W.3d 836, 840 (Tex. App.—Dallas 2006, no pet.).

Effect on Plenary Power and the Appellate Timetable A request for findings of fact extends the time the parties have to file a notice of appeal after a final judgment, but it DOES NOT

extend by itself the trial court's plenary power. Although a timely request for findings of facts and conclusions of law extends the appellate timetable, it does NOT extend the trial court's plenary power.

A determination of bias or prejudice is a question of

fact for the trial court when the evidence is conflicting.

Mandamus was Recently expanded to include

family court: "an associate judge of a district or county court appointed by a judge under Chapter 201, Family Code, in the court of appeals district for the judge who appointed the associate judge."

Jury Instruction Regarding Taxability of Award If a claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, the court must instruct the jury as to whether any recovery for such compensatory damages is subject to

federal or state income taxes. (statutory requirement)

TX statutes permit a claimant who seeks to recover the reasonable cost of services necessarily incurred by the claimant as a result of the opposing party's actionable conduct to

file an affidavit or an unsworn declaration made under penalty of perjury. Must state that person provided specific services or is the person in charge of the records showing the service provided and the charge made, the amounts charged, that the service provided was necessary and the amount reasonable Unless controverted, the affidavit or declaration is sufficient evidence to support a finding of fact that the amount charge was reasonable or that the service was necessary Must be served on other party at least 30 days before evidence is presented in trial May be neutralized by counter affidavit/unsworn declaration

Overcoming a DWOP What do you do if the court DWOP's your case?

filed VERIFIED Motion to reinstate - have 30 days of DWOP Motion to reinstate a case on the docket shall set forth the grounds (must be verified) A copy of the motion to reinstate shall be served on each attorney of record and each party not represented by an attorney whose address is shown on the docket or in the papers of file. If more than 30 days - Bill of Review

A party may not file a motion for rehearing or for en banc reconsideration in the court of appeals after that party has

filed a petition for review in the Texas Supreme Court unless the court of appeals modifies its opinion or judgment after the petition for review is filed. Appellate rules set forth deadlines for filing. If a party has filed for petition of review for TXSC they cannot then file a motion for en banc reconsideration.

If finding of fact is against conclusive evidence, the appellate court can

find as a matter of law to the contrary. VERY RARE to find something conclusively established. Both parties put on evidence ad usually reasonable minds differ

NOTE 3 - The Court of Appeals should NOT consider comments that the trial judge made at the conclusion of trial as being a substitute for

findings of fact. Even though the judge might have said "I'm inclined to do this..." or "the evidence supported that..." etc. Unlike Federal courts, where judges do make oral findings of fact, Texas courts don't recognize that because a lot of appellate lawyers want to be involved before findings come out. They don't want it left in the hands of the trial attorney.

Complaints Concerning Sufficiency of Evidence: *Bench Trial* In nonjury cases, a complaint about the sufficiency of the evidence, including a complaint that the damages found are excessive or inadequate, may be made

for the first time on appeal in the complaining party's brief. See Tex. R. App. P. 33.1(d). Remember, in a BENCH trial, you don't have to do anything to preserve a legal or factual sufficiency complaint.

A *verification* is a

formal declaration, typically made before a notary public, that statements made in the document are true.

Upon filing this notice (reminder to file findings of fact), the time for the court to file findings of fact and conclusions of law is extended to ____ days from the date the original request was filed.

forty

Certain Orders Under Texas Citizens Participation Act § 27.003(a) of the Civil Practice and Remedies Code: The Texas Citizens Protection Act provides for the dismissal of a "legal action" that is "based on, relates to, or is in response to a party's exercise of the right of

free speech, right to petition, or right of association." Purpose of the TCPA: To encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely and otherwise participate in government to the extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury. § 27.003(b) of the Civil Practice and Remedies Code: Motion to dismiss under the TCPA require the movant to show "by a preponderance of the evidence that the lawsuit is based on, relates to, or is in response to the movant's exercise of its right to speech, the right to petition or the right of association." § 27.003(c)-(d) of the Civil Practice and Remedies Code: Once this showing is made, the burden shifts to the claimant to justify the legal action by producing "clear and specific evidence" establishing "a prima facie case for each essential element of the claim in question," unless the movant establishes each element of an applicable (affirmative) defense by a preponderance of the evidence. * Currently, an interlocutory appeal is available of denials of motions to dismiss filed under the TCPA.

If you are going to make a compliant about the voir dire process in the appeal, make sure you...

get the juror cards marked by the court reporter and added to the record so the appeals court can evaluate the jury/VD process. If you don't, the appellate court can't tell what happened.

Although it is technically unnecessary to introduce a stipulation into evidence, the better practice is to

have it marked and introduced and to read part or all of it to the jury

A petition for review filed before the last ruling on all timely filed motions for rehearing or motions for en banc reconsideration is treated as

having been filed on the date of, but after, the last ruling on any such motion.

Relationship to Motion for Directed Verdict Although the standards of review are the same for a directed verdict and a Motion for JNOV, the Texas rules do not condition the assertion of a jnov on

having previously asserted a prior motion for instructed verdict. You can wait and assert a JNOV to see how the jury rules. However, remember that if your directed verdict is based on "no evidence" you can't put on evidence and then move for JNOV because now there's some evidence. Maybe on factual sufficiency, but not legal sufficiency. Contra: Federal practice does require. Federal Civil Procedure Rule 50(b) provides that a postverdict motion cannot be made unless the movant has moved for a judgment as a matter of law "before the case is submitted to the jury." Fed. R. Civ. P. 50(b).

*RULE 327. FOR JURY MISCONDUCT* (a) When the ground of a motion for new trial, supported by affidavit, is misconduct of the jury or of the officer in charge of them, or because of any communication made to the jury, or that a juror gave an erroneous or incorrect answer on voir dire examination, the court SHALL

hear evidence thereof from the jury or others in open court, and MAY grant a new trial if 1) such misconduct proved, or the communication made, or the erroneous or incorrect answer on voir dire examination, 2) is material, and 3) if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.

A judgment creditor may challenge the debtor's affidavits, and the trial court must

hear the judgment creditor's challenge promptly after reasonable discovery concerning the judgment debtor's net worth is complete. Tex. R. App. P. 24.2(c)(2)-(3).

The trial court's remittitur order suggests a specific amount of the reduction of the TCt's damage award in the trial court's judgment, which under the factual sufficiency standard prescribed in Larson should be sufficient to reduce the award to the

highest amount sustainable under the evidence. If the suggestion is acceptable, the judgment creditor files the remittitur in the trial court, which will modify the judgment.

If the remitting party's appellate complaint is sustained, the appellate court "must render the judgment that the trial court should have rendered" for the remitting party for the

highest number the factually sufficient evidence would support, but presumably not more than the TCT's original judgment before the remittitur was made. The Texas Supreme Court has emphasized that remittitur is the appropriate remedy "unless [the verdict] is so flagrantly excessive that it cannot be accounted for on any other ground."

Sometimes you have to do mandamus:

if TCT orders breach of attorney-client privilege. You have no choice; can't unring bell once privilege is broken. Just try to do as respectfully as possible.

In the case of explanatory instructions and definitions:

if they are *omitted*, under Rule 278 a *request* is prerequisite to complaint of the omission by any party, irrespective of reliance on an issue.

What effect did an alter ego finding have on the amount of supersedeas required?

if you can establish that an entity is not treated as a separate legal entity (treat funds as a common fund, don't observe corporate formalities), then you can show that alter ego as being included in the net worth of the judgment debtor's assets; can be included in the formulation of the assets of the judgment debtor.

Motion for instructed verdict does not violate the constitutional right to trial by jury because

if you have no evidence, or the evidence is conclusive, there's no fact finding for jury to make

MIV May be partial:

if you think you've conclusively established a part of your case. EX: breach of contract case. You think you've conclusively established that there was a contract and breach and it's just down to damages. Can move for instructed verdict on contract and breach. However, if the other side has controverted your evidence, so that it is no longer "clear, positive, direct, and free from inconsistencies," then it's a fact issue and can't be decided on legal sufficiency complaint like motion for instructed verdict.

If the appellate court finds the fact immaterial, the appellate court can

ignore it

Partial Verdicts & Unanswered Questions An incomplete/partial verdict is a jury charge with unanswered questions. A judgment cannot be based on a verdict containing unanswered questions, unless those questions were

immaterial.

However, the use of impeachment evidence is not unlimited. Impeachment testimony is admissible to show that a witness is not trustworthy, but it cannot be used for other purposes unless otherwise admissible on some other ground. Furthermore, it is improper to call a witness just to

impeach them through inadmissible hearsay. (Truco Properties case) Tex. R. Evid. 613(a) = a witness may be impeached by his earlier inconsistent statement.

Tex. R. Civ. P. 327(b) operates to prohibit jurors from testifying about matters and statements occurring during deliberations. Harmonizing both 327(b) and Tex. R. Civ. P. 327(a), Rule 327(b) applies regardless of the grounds alleged for a new trial. Rule 327(b) does not preclude juror testimony about

improper contacts with individuals outside the jury, nor juror testimony about matters or statements not occurring during the course of the jury's deliberations. A juror may testify about jury misconduct provided it does not require delving into deliberations.

*Broad-form submission shall be used whenever feasible*, that is,

in any or every instance in which it is capable of being accomplished. Purpose of Broad Form: Keep it simple for the jury

The difference between legal sufficiency review and factual sufficiency review in terms of the scope of evidence considered by the appellate court is that

in factual sufficiency review the court looks at ALL of the evidence, favorable and against the verdict, and decides where the weight of the evidence lies. in a legal sufficiency review, you are only looking at evidence favorable to the verdict, ignoring contrary evidence UNLESS it's one of these things we can't ignore When in doubt, let it go to the jury; thus we'll view the evidence in the light most favorable to the verdict.

If the trial court suggests a remittitur but the case is appealed before the remittitur is filed, the party who would make the remittitur may do so

in the court of appeals, which "must then render the judgment that the trial court should have rendered if the remittitur had been made in the trial court."

As of Sept 2011, an *unsworn declaration* may be substituted for a written sworn declaration, or certificate required by statute, rule, order, or otherwise required by law The declaration must be

in writing, subscribed (signed below) by the person making the declaration under penalty of perjury and include a jurat in substantially the following form: My name is (first, middle, last). My date of birth is (date), and my address is (street, city, state), and (Country). I declare under penalty of perjury that the following is true and correct: (Fill in statement) Executed in (County), State of (State), on the (day) day of, (Month & Year) The unsworn declaration can also be used in lieu of oaths *except for oaths of office or an oath required to be taken before a specified official or other than a notary public.* Background: This was on the books for a long time for prisoners. Prisoners used this for a long time because they didn't have access to notaries. Legislator - why do we trust prisoners to make unsworn statements but not other citizens? So, if you're desperate and need to file something at the last minute with no access to notary, cut and paste above at the bottom of affidavit and you're good. Really important for real life. Now that we have electronic filing, you can file up to 11:59 at night on the due date and you'll be timely. -Unless the rule provides for a time of day you have to file. -The only one Carlson can think of: D's Answer.

Assuming that the party against whom the verdict was rendered challenges the damage verdict in a jury case for excessiveness [see Tex. R. Civ. P. 324(b)], the court of appeals may suggest a remittitur, even if the trial court has not done so. Tex. R. App. P. 46.3. If the court of appeals suggests a remittitur but no remittitur is filed, evidence of the court's determination regarding remittitur is

inadmissible in a later trial of the case. Tex. R. App. P. 46.5. If the court suggests a remittitur and the suggestion is not accepted, it is NOT admissible in the new trial. Can't say "even the court thought it was too much!"

Clearly, here the rule refers to formal deliberations and not

incidental discussions that might occur between jurors during trial. Other rules use the term "deliberation" to refer to the formal process beginning after the close of evidence and the jury charge, when the jury retires to weigh the evidence to arrive at a verdict. None of the rules contemplate that the jury may begin deliberating during a trial break.

If proven that the debtor has an alter ego, the court may

include in a debtor's net worth the assets/liabilities of the alter ego.

The power to punish a party who fails or refuses to obey a prior order or decree of the court for contempt is an

inherent power of a court and is an essential element of judicial independence and authority. Tex. Rev. Civ. Stat. Ann. art. 1911a.

"Have You Reached a Verdict?" RULE 283. DUTY OF OFFICER ATTENDING JURY - The officer in charge of the jury shall not make not permit any communication to be made to them, except to

inquire if they have agreed upon a verdict, unless by order of the court; and he shall not before their verdict is rendered communicate to any person the state of their deliberations or the verdict agreed upon Following cases analyze misconduct by jurors and court officials; which can form the basis for new trial or not.

A defendant waives its motion for a directed verdict made after the plaintiff has introduced its evidence and rested its case by

introducing evidence on that element as there would now be "some" evidence in the record so that a granting of an instructed verdict would be improper. Kind of a trap in TX. EX: You're the D, P rests, you move for instructed verdict. TCT overrules. Now do you go forward with some contrary evidence on an element that you said there was no evidence on? If you do, you are creating a fact issue and waiving your motion for a directed verdict would be improper. Kind of a Hobson's choice. Tough decision to make as a trial lawyer. Are you really sure there's no evidence, or that the only evidence that came in is incompetent/less than a scintilla? Or do you go forward with your evidence and hopes the jury sees if your way?

Prejudice

is more easily defined for it means prejudgment and consequently embraces bias. EX: "I could never award damages for IIED"

What is a Final Judgment? There's no requirement that a TCT sign something called a "final judgment" at the conclusion of the case. Final judgment will be clear after a full blown trial on the merits. But sometimes a case is disposed of in a series of rulings. Final judgment - definition?

is the last order which disposes of all parties and issues in the pending suit. Even if it doesn't have the name "final judgment." In cases involving multiple parties or multiple claims, it may be difficult to determine what constitutes a "final" judgment. In many cases, there is no comprehensive judgment, only a string of partial orders pertaining to particular parties or issues. In these cases, the order that addresses the last remaining party or issue is the final order for appeal purposes, and all of the earlier orders merge into the last order, which constitutes the final judgment.

Plenary power -

is the power of the TCt to change its judgment. TCts do not have forever to change judgment, because of policy in favor of finality of judgment. The litigants have to do something within 30 days of the signing of the final judgment that will extend plenary power for a while, but if they don't file any of those extending motions then on the 30th day the TCt loses its plenary power. Otherwise, courts would be free to change their judgments forever into time, or you just support their opponent in the next election and try to get that new candidate to reverse the judgment. That's bad policy. Having a limit on plenary power is a good idea.

329b(g) -

is when a *PARTY* is acting: MNT or motion to modify judgment (or any motion that requests a *SUBSTANTIVE change* in the judgment) extends plenary power and time to perfect an appeal

329b(h) -

is when the COURT is acting; and it restarts the time table when the court modifies, corrects, or reforms the judgment IN ANY RESPECT; UNLESS it's a judgment nunc pro tunc after expiration of the plenary power period. So *if the court itself, while it has plenary power, changes the judgment in ANY RESPECT, substantive or nonsubstantive, the effect of that change is that you have a NEW DAY ZERO*.

Following the hearing, the trial court must

issue an order that states the debtor's net worth and states with particularity the factual basis for that determination When a judgment creditor files a contest to the judgment debtor's affidavit of net worth, the trial court must hold a hearing and issue an order that states the debtor's net worth and states with particularity the factual basis for that determination

Arguments About the Law and Arguments Diverting the Jury from its Duty It's okay to paraphrase the law in the court's charge as long as

it is accurate. Not proper if inaccurate.

Improper to Advise the Jury of the Legal Effect of their Answers -

it is improper to use jury argument to advise the jury who will win or lose depending upon how they answer the jury questions. Improper to make an argument informing the jury of the effects of its answers. These arguments invite the jury to decide who should win and then to fudge its answers accordingly. For example, you cannot argue to the jury, "if you don't answer yes to question 2, then my client gets nothing." Sometimes jury instructions indirectly let the jury know of its consequences and that is ok

Inferences of Misconduct - generally speaking, an accusation of misconduct or a derogatory term will not be grounds for reversal and may not be improper if

it is reasonable to infer misconduct from the evidence. EX: Standard Fire (accusation counsel was in conspiracy with doctors and therapist to increase damages)

Introduction Knowing when a judgment is final can be of crucial importance because

it is the signing of the judgment or order making the case final that begins the running of the timetable to compute the loss of plenary power and it commences the running of appellate timetables. A party who fails to realize that a final judgment has been rendered and signed may lose the opportunity to ask for further relief in the trial court and the right to appeal.

TRAP 52 - is the rule that gives you specifics on exactly how a party gets a mandamus case to the court of appeals or TXSC. Big picture:

it is up to the petitioner seeking mandamus to put the record together. Need to assert facts necessary to show entitled to mandamus relief.

If the stipulation is ambiguous or contradictory,

it may not be given any effect.

Juror misconduct justifies a new trial only if

it reasonably appears from the record that "injury probably resulted to the complaining party." Tex. R. Civ. P. 327(a). "To show probable injury, there must be some indication in the record that the alleged misconduct most likely caused a juror to vote differently than he 'would otherwise have done on one or more issues vital to the judgment.'" Determining the existence of probable injury is a question of law.

What can the trial court properly consider in equalizing strikes?

it shall be the duty of the trial judge to equalize the number of peremptory challenges so that no litigant or side is given unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side. In determining how the challenges should be allocated the court shall consider any matter brought to the attention of the trial judge concerning the ends of justice and the elimination of an unfair advantage

Rule 279 is specific that the failure to submit an issue upon which one relies for recovery shall not be a ground for reversal of the judgment unless

its submission, in substantially correct wording, has been requested and tendered in writing. The rule is no less specific in declaring that upon appeal all independent grounds of recovery not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived.

Escobar v. Escobar,711 S.W.2d 230 (Tex. 1986). Court enters judgment in property partition action with mistaken acreage numbers and then corrects after expiration of plenary power by ....

judgment nunc pro tunc. TXSC upholds as proper.

Immaterial matters submitted to jury can be raised any time before ...

judgment; ask the court to disregard the jury's answer.

Most motions for new trial do NOT have to be verified, but a MNT based on _______ DOES.

juror misconduct

Fact findings have the same weight as a

jury finding. Binding on the appellate court unless there's a basis to "set aside" such as no evidence, or not sufficient evidence, or they're immaterial.

Who Should Appeal? An appellate court may not grant a party who fails to file a notice of appeal more favorable relief than did the trial court except for

just cause. Tex. R. App. P. 25.1(c).

"Death penalty" sanctions -

killing the case for not producing in discovery.

If you don't timely file a notice of appeal by the deadline, the appellate court

lacks jurisdiction.

the jury decides facts, but NOT

law. The court decides what the substantive law is and applies

When you brief for appellate review on factual sufficiency,

lay out all the evidence with record cites, and argue that the jury's finding does not comport with the weight of the evidence.

A trial court's finding of fact may be attacked (for the first time) on appeal on the bases the evidence is

legally or factually insufficient to support the finding. TRAP 33.1(d)

Allowance by the court of an amended or supplemental brief is not mandatory, however, because

litigants are entitled to an expeditious determination of their appeal. This is especially true when the appellant seeks to completely change the grounds of the appeal. Very helpful to ACt to get good briefs. More and more appellate specialists so it is getting better. ACt really appreciates good briefs.

When requested by the judge of a particular county, the court clerk will deliver the jury list to the county sheriff, who will ...

mail notice to each person on the list, advising the person to attend court at a specific time and place. When authorized a prospective juror may respond to a summons by contacting the county officer responsible for summoning jurors by computer or calling.

How do you preserve error depends on whether court is allowing in inadmissible evidence or excluding out admissible evidence. *if the court is allowing in inadmissible evidence* =

make a contemporary specific objection and get a ruling

Reporter's Record At or before the time the appeal is "perfected" by the notice of appeal, the appellant must

make a written request to the official court reporter to prepare the reporter's record, designating the testimony and exhibits to be included. Tex. R. App. P. 34.6(b). Must make arrangements to pay for record unless appellant establishes indigence. A copy of the reporter's record request must be filed with the trial court clerk and served on the opposing party. Tex. R. App. P. 34.6(b) Court reporter should file copy with the appellate court clerk. All done electronically now.

These procedures for obtaining findings of fact after a Texas bench trial are Very different from Federal District Courts where, after a bench trial, the District Judge is to

make oral findings immediately after the close of trial and judgment. While the evidence is fresh in the judge's mind. Judge will usually conference call parties, have the court reporter there to take down the findings, and then orally makes them. In Texas, by contrast, the above rules mean that you can be out a long time (40 days with extensions after the initial request, which wasn't due until 20 days after the original judgment) before findings of fact are made. 60 days out potentially. That's a long time.

You have to be particularly diligent if you're the appellee, and your opponent has designated a partial record in a sufficiency complaint to look at whose testimony is brought up,

make sure all Ws that address the matter in a sufficiency; if not, as appellee you should designate those parts of the record for the appellant to obtain

Texas does not require a litigant to move for instructive verdict, to be able to

make the exact same arguments on the back end to make a JNOV. The grounds are exactly the same: legal sufficiency grounds (no evidence, or the evidence is conclusive). Same standard for JNOV as a motion for instructed verdict. All of these standards assume a fiction that we can precisely measure the weight of the evidence, which is not true.

If you don't have an interlocutory appeal available by STATUTE, you can consider a

mandamus proceeding Mandamus means "we order" You can go to court for that ruling you can't appeal, ask court for leave to file a writ of mandamus.

Constitutional and Statutory Authority for Original Proceedings The Texas Constitution provides that the Texas Supreme Court and the courts of appeals have jurisdiction to issue writs of

mandamus, habeas corpus, and other writs in original proceedings "as provided by law." Tex. Const. Art. 5, §§ 3, 6.

A motion to equalize jury strikes

may be filed in a case in which there are multiple parties, ostensibly different, but suspected or known to be aligned together against your client. In multiple-party cases, such "double teaming" should be expected to be part of your opposition's potential trial strategy. The court has statutory authority to realign parties and to equalize jury challenges so that no party has an unfair advantage; a motion should be filed, and a hearing sought (at which you will probably call your opponents as witnesses) to establish the right to such relief. We will take up the matter of equalizing strikes in greater detail in the chapter on jury selection.

The trial judge need not file findings of fact and conclusions of law following an interlocutory order, but

may do so within 30 days after the order is signed.

NOTE 2 - "outside influence" -

means outside the jurors themselves. EX: juror looking something up online or in a dictionary themselves is NOT outside influence, that is the jurors themselves.

Dealing with Deadlocked Juries If the trial judge determines the jury has deliberated for a reasonable amount of time but cannot reach a verdict, the judge may declare a

mistrial and discharge the jury if it seems it is improbable that the jurors will agree.

Charge Conferences -

most trial judges will call an informal charge conference prior to the end of the trial. This is the latest that counsel should make their requests known to the court. After the conference, the court will prepare it's charge, including the requests it has accepted.

(g) A motion to modify, correct, or reform a judgment (as distinguished from motion to correct the record of a judgment under Rule 316), if filed, shall be filed and determined within the time prescribed by this rule for a .......

motion for new trial and shall extend the trial court's plenary power and the time for perfecting an appeal in the same manner as a motion for new trial. Each such motion shall be in writing and signed by the party or his attorney and shall specify the respects in which the judgment should be modified, corrected, or reformed. The overruling of such a motion shall not preclude the filing of a motion for new trial, nor shall the overruling of a motion for new trial preclude the filing of a motion to modify, correct, or reform.

Motions for Rehearing Following the denial of a petition for review or after the Texas Supreme hands down an unfavorable decision, a party may file a

motion for rehearing.

A postjudgment motion for judgment notwithstanding the verdict should be regarded as a

motion to modify the trial court's judgment when based on the verdict as it seeks a substantive change in the judgment. Tex. R. Civ. P. 329b(g). When the plenary power expires, the trial court cannot change its judgment. If you don't like it, that's what the appellate court is for. The day of signing triggers the clock for the loss of plenary power.

Lane Bank case: A timely filed postjudgment motion seeking to add an award of sanctions by amending an existing judgment extends the thirty-day period in which a trial court may exercise plenary power over its judgment. This motion qualifies as a

motion to modify under Texas Rule of Civil Procedure 329b(g), thus extending the trial court's plenary power to change its judgment beyond the initial thirty-day period and extending the time to perfect the appeal.

Bias

must be more than an inclination toward one side than the other; rather, it must appear that the state of mind of the juror leads to the natural inference that the juror will not or could not act with impartiality. EX: a juror saying "one side probably starts out a little ahead in my mind" is NOT enough to demonstrate *unequivocal bias* needed to show juror can't be rehab'd

Strategically, party that lost will want to ask for fact findings because they are hoping to

narrow the grounds on which they lost. Narrows the scope of the appeal. Makes the appeal not as onerous.

If the JNOV is overruled, that party may also move for a

new trial, on the ground that the verdict is against the "great weight and preponderance" of the evidence.

If jury's finding is against the great weight of evidence or based on insufficient evidence, can get a

new trial. EX: you go to a jury, it is told to decide this on a POE ("more likely than not"). They answer for the P, but the weight of the evidence is clearly on the D side. The D can move for a new trial. The court cannot substitute its finding on factual issues, because of the constitutional right to a trial by jury. But the court should grant a timely motion for a new trial because the jury didn't follow instructions. When we're talking about factual sufficiency complaints is that the jury's finding is out of whack with the weight of the evidence.

The judgment may not be supported upon appeal by a presumed finding upon any ground of recovery or defense, if...

no element of which has been included in the findings of fact (i.e. when it's a totally omitted ground). Results in waiver of the ground.

Why use a Motion to modify/correct judgment -

no error in the trial itself, but in the way the judgment is put together. EX: Doesn't provide for post-judgment interest, doesn't include attorneys' fees, describes real property partition incorrectly, etc. Don't have to try the case again, just need to correct your judgment.

Jury trial: Trial by consent in a jury trial occurs when

no objection about the unplead evidence is made to the submission of that ground in the charge. But if no objection is made to the evidence, the party who introduced it should ordinarily be entitled to a trial amendment because the party who did not object to the admission of the evidence could not claim "prejudice" or surprise from the variance. Tex. R. Civ. P. 66

Amending Pleadings A party should seek to file an amended pleading when that party fails to plead a ground, but has put on evidence of that ground. The burden is on the ____ to establish that it will be prejudiced if the amendment is allowed.

non-movant Trial court should deny the pleading amendment if prejudice is made out such as "We've conducted no discovery on this matter and have no witnesses to testify on this new factual matter." Distinguish trial by consent when there is no objection when evidence of the unplead ground is introduced. Otherwise, the trial court "SHALL" allow a party's request to amend if there is no showing of prejudice. TRCP 66.

Religion - level of scrutiny?

not a clear answer if religious based strikes are constitutional. Is it proper to ascribe individual that they believe all the tenets of the religion? EX: Catholic Church is against death penalty, but not fair to assume that all Catholics are against

Family Code Temporary Orders Under the Texas Family Code, temporary orders in divorce cases, annulment cases, actions to declare a marriage void, and suits affecting the parent-child relationship are

not subject to interlocutory appeal.

Amberboy v. Societe de Banque Privee, 831 S.W.2d 793 (Tex. 1992). Federal courts have the option to certify a question of Texas substantive law to the Texas Supreme Court but

nothing requires the Texas Supreme Court to answer it. (Erie Doctrine: State substantive law applies in diversity jurisdiction cases) An answer to a certified question is not binding, it is merely advisory. Texas Supreme Court has discretion on whether it will accept and answer a certified question of law.

True Conflicts in Findings "It is settled law that where there are two findings of fact by court or jury, one of which will support a judgment for one party, while the other finding will require a judgment for the opposing party, such irreconcilable conflict exists that no judgment can be based thereon. Such findings ...

nullify each other . . . . But it is equally well settled that findings as to ultimate facts will control those on merely evidentiary issues.").

provided that the court may at any time correct a clerical error in the record of a judgment and render judgment ______ under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired.

nunc pro tunc

If the jury returns with unanswered material questions, counsel must

object to receipt of the verdict, ask for further jury deliberation or ask for mistrial before the jury is discharged.

If there is a "fatal conflict" in the jury's findings, counsel must

object to the receipt of the verdict before jury is discharged and request the jury be returned to deliberate with instructions from the court on resolving the conflict. It is counsel's responsibility to point to the trial court before the jury is discharged that there is a conflict in the jury's findings.

If your opponent offers the whole deposition transcript into evidence you should...

object. There's likely inadmissible evidence.

Evidentiary Effect Neither deposition nor interrogatories have any evidentiary effect unless

offered and received in evidence. Generally don't file discovery with the court (don't file), unless from a 3P. This is because the courts were spending a fortune in warehouse space. But today most things are electronically filed. Unless trade secrets, etc.

Only the TXSC has the power to issue a writ of mandamus or injunction or any other compulsory writ against

officers of the executive branch

A request for submission is the method of preserving the right to complain of

omission of, or failure to submit an issue which is relied on by the complaining party.

There are a LOT of mandamus cases relating to discovery & privilege because

once you disclose something that was subject to a privilege you can't unring that bell. Mandamus is appropriate.

Instead of jury trial, the order of events are very different:

opening statements, parties put on proof, the court makes a judgment, AND THEN the parties can ask for fact findings by the court.

General Arbitration Act allows for interlocutory appeal of certain court orders concerning arbitration, most notably

orders "denying an application to compel arbitration" and orders "granting an application to stay arbitration."

The filing of a petition of review by one party does not preclude

other parties from filing a motion for rehearing with the court of appeals (assuming timely).

If an original or amended motion for new trial is not determined by written order signed within 75 days after the judgment was signed, it is

overruled by operation of law.

Discovery Orders: Mandamus proceedings concerning discovery orders are

particularly common uses of the writ.

Wright v. Valderas, 575 S.W.2d 405 (Tex. Civ. App.—Fort Worth 1978, orig. proceeding) (per curiam). In a mandamus petition, the ______ prepares the record, which must be factually detailed. TRAP 52

petitioner

Titles of parties At TXSC:

petitioner/respondent.

Nonsuit

plaintiff quits the lawsuit

The trial court cannot correct a judicial error made in rendering a final judgment once ...

plenary power expires.

In re Columbia Med. Ctr. (Tex. 2009) Traditionally in TX, the caselaw was, that if the TCT grants a new trial, that isn't reviewable on appeal or by mandamus as long as TCT had

plenary power to act. Worked well; thought was that the TCTs are the boots on the ground, they see the parties, process; they are doing what they need to do to make the process is fair. Rule: TCT can grant a MNT in interest of justice 2009: TXSC - Mandamus relief is available to compel a trial judge who is disregarding the jury's verdict by granting a new trial *to include in its order specific detailed reasons for that action. Granting MFNT "in the interest of justice" is not sufficient.* *TCT must state specific reasons and supporting facts to show why granting a new trial is appropriate.* Similar to Pool requirement for setting forth factual basis for sufficiency requirements. Carlson: this case was kind of shocking. Looks like now there is appellate review of TCT's decision on MNT.

By contrast the trial judge's finding of fact must be challenged on appeal by

points of error or by the issues presented. Despite the fact that broad issue statements are permitted by the Rules of Appellate procedure, the issues or points should be stated and brief so that the appellate judges can see that particular fact findings are being challenged.

Premature Requests Tex. R. Civ. P. 306c. No motion for new trial or request for findings of fact and conclusions of law shall be held ineffective because ...

prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment the motion assails, and every such request for findings of fact and conclusions of law shall be deemed to have been filed on the date of but subsequent to the time of signing of the judgment.

A stipulation of fact on the record alleviates the necessity of

presenting evidence as to that matter. Parties may stipulate to facts. When both parties voluntarily agree that a fact is true, no evidence need be presented on the matter stipulated. Example: If both parties stipulate before the trial that there was a contract, the parties do not have to prove contract formation during the trial. *Stipulations are a type of contract* (the court looks to law of contracts to interpret).

The existence of a conflict probably cannot be raised for the first time on appeal due to

preservation of error requirements.

Mandamus review of significant rulings in exceptional cases may be essential to

preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.

Presumption of Implied Findings from Bench Trial In the absence of express findings of fact (no one requested FFCL), the appellate court is required to

presume that the trial court made implied fact findings in accordance with and in support of its judgment, and the judgment must be affirmed if there is evidence of probative force (as long as there's competent) to support it upon any theory.

Partial Record A party who properly designates a partial reporter's record may appeal a sufficiency point without a complete record — and the appellate court is to

presume the incomplete record is complete for purposes of the appeal. See Tex. R. App. P. 34.6(c)(4). If a party does not file a complete record on appeal, or comply with the partial reporter's record provisions of Appellate Rule 34.6, the court of appeals will presume the omitted portions of the reporter's record support the judgment. (Automatic appellant loses)

but when one or more elements thereof have been found by the trial court, omitted unrequested elements, when supported by evidence, will be supplied by

presumption in support of the judgment.

Aldridge Presumption: Full blown evidentiary trial on the merits, not intrinsically interlocutory =

presumption of finality. Without a conventional trial on the merits, Aldridge Presumption of finality does NOT apply.

Failure to produce the documentary or demonstrative evidence under a party's control is also

properly the subject of argument. Can also comment on failures to produce demonstrative evidence under their control

Generally, pretrial motions are to be accompanied by a ...

proposed written order. So you want your proposed MIL to be sufficiently specific. If you have a lot of things that want to file a MIL on, you should list them in a single order with a check list with "granted" or "denied" for the judge And you want the order to cover any mention in any form, including witnesses

*BE CAREFUL*: Once an admission is made (through a RFA), and it's in the record, it's "solidified." Therefore, do not

question a witness about a matter admitted as you may waive the binding effect of the admission. Object immediately if your opponent attempts to inquire of a witness regarding matter that has been admitted. (Court may advise jury of the admission).

Complaints that no legally sufficient evidence supports a jury's "yes" findings and complaints that a jury's "no" finding of a vital fact are

questions of law within the appellate jurisdiction of the Texas Supreme Court.

Remember, in a bench trial, you don't have to

raise legal/factual sufficiency at trial to preserve for appeal, with the idea that the judge knows the law. However, it is a good idea to raise at TCT, because if you can win there, you can avoid having to go up on appeal, get a remand for a new trial, do the whole trial again, etc.

Concerning Cecil's no evidence points of error, Rule 324 does not require no evidence points of error to be

raised in a motion for new trial to preserve the complaint for appeal. However, no evidence complaints may be raised in a motion for new trial.

Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658 (Tex. App. — Dallas 1986, writ ref 'd n.r.e.)

" . . . to be entitled to complain on appeal that the trial court erroneously excluded this evidence, it is mandatory that the evidence be developed [on the record] and the claimant suffer an adverse ruling as a result." Why? So the appellate court can determine if the excluded evidence was in fact admissible, and if it was, whether its exclusion was harmful (requiring reversal/remand) or harmless (no reversal necessary) to be entitled to complain on appeal that the trial court erroneously excluded this evidence, it was incumbent on Tempo to tender the evidence developed in the bill of exception (i.e. offer of proof) and suffer an adverse ruling.

Variance Test:

"A variance exists when the proof offered, within the general area of a sufficiently pleaded claim or defense, differs from the proponent's allegations." When the evidence doesn't match the pleadings. EX: Pleadings say D was speeding causing the car accident, but then at trial the P says the D was impaired. Today a difference between pleadings and proof is rarely a ground of reversal, in part because pleadings are no longer read to jury. Still, should object that evidence is outside the pleadings. That's how you preserve the complaint for appellate review. "Objection! Outside the pleadings!" or "Not supported by the pleadings!"

quo warranto -

"By what authority" are you acting. Either brought to contest the actions of a govt figure (you don't have authority to do that) or an entity who hasn't paid franchise tax and no longer exists.

Fundamental Error

"Fundamental error" may be raised for the first time on appeal. Fundamental error rarely exists. If the record shows that the court which rendered the judgment had no jurisdiction or where a matter of "public interest which transcends the rights of the parties" is involved, the error may be classified as fundamental. Don't assert if it doesn't exist because it will piss off the appellate court.

FACTUAL SUFFICIENCY -

"Insufficient evidence" / "great weight" complaints, if sustained, serve as a basis for a new trial. In other words, "insufficient evidence"/factual insufficiency points are remand complaints.

1. Legal Sufficiency: "No" Evidence

"No" evidence = the opponent has failed to introduce competent evidence to make out a legally cognizable case to go the jury. So the opponent's evidence is "less than a scintilla" Applicable to Instructed Verdicts and Judgments Notwithstanding the Verdict. Used to claim that the party with the burden of proof (99% of the time, the P) has not introduced legally sufficient evidence that would support submission of the case to the jury. Common for Ds to use to complain that the P has introduced "no evidence" on one or more elements of the P's claim. "No evidence" - doesn't mean literally no evidence; it means that the opponent has failed to introduce enough evidence to make out a legally cognizable case; thus it shouldn't go to the jury but be decided against the opponent as a matter of law.

Unless, on the vote of 6 justices:

"Petition refused" Means TXSC agrees with ACt, and is therefore becomes of equal weight with a TXSC decision.

General Final Judgment Requirement § 51.012 of the Texas of the Civil Practice and Remedies Code provides than an appeal may be taken "from every final judgment" of a district or county court. Aldridge Presumption: A judgment, not intrinsically interlocutory, disposing of the case after a conventional trial on the merits will be presumed to have disposed of a counterclaim or other pending claim in the same proceeding, in the absence of an order for a separate trial.

"When a judgment is interlocutory because unadjudicated parties or claims remain before the court, and when one moves to have such unadjudicated claims or parties removed by severance, dismissal or nonsuit, the appellate timetable runs from the singing of a judgment or order disposing of those [last remaining] claims or parties." Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995).

Grounds of Constitutionality Traditional Rule: The strict approach means that the Texas Supreme Court is prohibited on direct appeal from

"adjudicating constitutional claims that would require additional factual development below." O'Quinn v. State Bar of Tex., 763 S.W.2d 397, 399 (Tex. 1988).

Interchangeable Juries and the Shuffle Even if qualified, a prospective juror may be excused if he or she qualifies and chooses to claim an ..

"exemption." A judge cannot excuse a prospective juror for economic reasons, unless all the parties agree.

Interlocutory Orders are not Immediately Appealable An order or judgment that is made in a case before every party's claim or defense and every issue in the case has been determined is

"interlocutory."

Effect of Trial Judge's Express Findings Tex. R. Civ. P. 299 provides that when findings of fact are filed by the trial court, the findings form the basis of the judgment which

"may NOT be supported upon appeal by a presumed finding upon any ground of recovery or defense, no element of which has been including in the findings of fact." This is consistent with Rule 279 applicable to a jury trial. (Totally omitted ground)

A trial court abuses its discretion when it

"reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." "The relator must establish that the facts and law permit the trial court to make but one decision.... A mere error in judgment is not an abuse of discretion."

Suspending Enforcement of the Judgment Pending Appeal: Property Judgment The enforcement of a judgment differs if it is property is the award vs. money. Real Property: Appellate security calculated by the value of

"rents or revenues" during the appeal.

The Texas Supreme Court has decided that on mandamus review, an appellate court may evaluate the merits of a new trial order that

"states a clear, legally appropriate, and reasonably specific reason for granting a new trial." In re Toyota Motor U.S.A., Inc., 407 S.W.3d 746, 757-58 (Tex. 2013). Has made it much harder to get a MNT granted. In the past, where TCT could have granted for reasons like "counsel was impaired" or "jurors were sleeping" are not "legally appropriate" reasons now. Also makes it much more crucial to preserve error, because if it isn't, appellate court will not allow.

Whether it's a bench trial or whether it's a jury trial, one of the pretrial steps counsel should take is to review their opponent's pleadings, so they know what's in there and are ready to object to anything that is outside of the pleadings. If they fail to do so, they waive that objection and have allowed a...

"trial by consent" of that unpled issue.

Broad Discretion? Trial judges used to have broad discretion in ruling on motions for new trial. Historically, TX held that TCt had broad discretion in ruling for motions for new trial. If a TCT granted a new trial, if it didn't explicitly, it implicitly vacates the previous trial judgment it signed. So there's no judgment to appeal, nor a basis for mandamus. Just the TCT's discretion. Gave you two options: 1) retry the case, or 2) settle *Big shift in early 2000s*; the Texas Supreme Court held that immediate mandamus review WAS available to compel a trial court to specify the reasons for setting aside jury verdicts and granting a new trial. It is NOT sufficient for the court's order to recite that a new trial has been granted in the interest of justice. Toyota case - A new trial order must be

"understandable," "reasonably specific," "cogent," "legally appropriate," "specific enough to indicate that the trial court did not simply parrot a pro forma template," and issued " only after careful thought and for valid reasons." Carlson: shocked by how often mandamus is granted by appellate courts saying the TCt's reason for granting a new trial is invalid. EX: there was error, but not preserved by the parties so you don't have to grant a new trial; or charge was wrong but probably didn't result in harm so no need for a new trial Thus, TCT's discretion to grant a MNT has been SIGNIFICANTLY narrowed by this new line of cases; and trial judges know it. Really redefines the role of the trial judge. Trial judges are the "boots on the ground." They observe what's going on. Most are ultimately interested in justice; so they used to grant new trial for nonlegal reasons (EX: counsel was going thru chemo so wasn't doing a good job). Today a lot of that would be mandamus-able. Today, you have to have a specific legally-correct reason. Toyota case rationale - citizens performed duties as jurors, and have a right to transparency. They should know why their verdict is being set aside. Carlson doesn't buy the argument that jurors are following up on cases.

Trial by Consent Odd concept in name. Should just call ...

"waiver of pleadings." A person is required to plead something to put it in issue, (and thus be able to introduce evidence and go to fact finder). But if they don't plead and they do put on evidence anyway in a bench trial, as soon as the evidence comes in without objection there's a "trial by consent." Doesn't mean that the evidence is taken as true, but it means that the parties have impliedly allowed a trial by consent without pleadings on that issue.

The burden of proof shall be placed in the jury charge question in such a way that a

"yes" answer to a question will benefit the party with the BOP. But the court can put the BOP before the jury in the question itself, OR in a separate instruction. In most civil cases in TX, the BOP is by a POE on the P.

Failure to attend when summoned, absent reasonable cause, may result in a fine of ..

$100-$1000.

Texas law provides that when a judgment is for money, the amount of security required to suspend enforcement of the judgment pending appeal may not exceed the lesser of:

(1) 50 percent of the judgment debtor's net worth; or (2) $ 25,000,000.

Factors for Frivolous Appeal Sanctions To determine whether the appeal is frivolous, the court looks at:

(1) Subjective prong = Good faith by appellate attorney (2) Objective prong = Would a reasonable attorney believe that the court of appeals would reverse the trial court's ruling.

Appellate Rule 10.5(b)(1) requires a motion to extend time must state the following: (4)

(1) The deadline for filing a brief; (2) The length of the extension sought; (3) The facts relied on to reasonably explain the need for an extension; (4) The number of previous extensions granted regarding the time to file the brief. There's no hearing; just written submission. Not hard to get an extension. The ACt wants good briefs; that helps them decide the case. Can seek extension before or after due date, but must better to do before so you know if you are going to get. Different appeals courts have different standards for granting extension.

Four reasons for Filing a Motion for a New Trial

(1) To obtain a new trial from the trial court; -Unhappy with the judgment; you think there are errors that warrant it (2) To extend the plenary power of the trial court if timely filed; -Plenary power - power of the TCt to change its judgment (3) To preserve complaints for appellate review; and -There are some instances where MNT is required for preservation (4) To invoke the extended appellate timetable. -You get more time to decide whether the client wants to appeal

Summoning and Empaneling Notice is sent to each prospective juror on the jury list to appear on a certain date, time and place. \ Upon arrival, jurors must report either to:

(1) To the specific court district court room (usually smaller counties), OR (2) To an independent or central jury room if there is one in that county. - Usually happens this way if there's 2 or more judges. Judges take turns on who is in charge of summoning/empaneling jurors that week Juror names are put on a list based on drawing, then each side strikes for cause or peremptorily. The first 12 not struck are seated in district court (first 6 in county courts) May need to ask for a larger panel than 24 if you think there's going to be a lot of strikes for cause. Not an exact science the size the panel will be. Though it is exact regarding the size of the petite jury that will actually serve. Judge will often give a speech about the right to serve on a jury in America; the duty of the jurors, etc. Then they read the qualifications for jurors. And ask if anyone is claiming an exemption or is disqualified to approach the bench and will weed them out.

Ex Parte Barnett (Tex. 1969) Habeas requirements that must be met to satisfy due process. (4)

(1) When an alleged contemnor is charged with violation of a court order, the order must have been clear, valid and possible to perform (2) There must have been full and complete notification of the charges alleged that is served on the alleged contemnor or his or her attorney who probably must have provided actual notice to the alleged contemnor. (3) There must have been a reasonable time before the hearing; (4) There must have been a written judgment of contempt AND a written order of commitment delivered to the sheriff before a person is incarcerated for constructive contempt (as distinguished from direct contempt in the face of the court, which may be punished summarily.)

Mandamus is asking the appellate court to find that the TCT's ruling was (2)

(1) a "clear abuse of discretion & no adequate remedy by appeal" or (2) that they are not following a mandatory ministerial duty. *Making a ruling IS a ministerial duty of a judge. Can't just not rule on a case for 15 months or whatever.*

Mandamus Record Consists of: (3)

(1) a certified or sworn copy of every document that is material to the relator's claim for relief that was filed in underlying proceeding; (2) a properly authenticated transcript of any relevant testimony, including any exhibits offered in evidence or a statement that no testimony was adduced in connection with the matter at issue; and, (3) a certified or sworn copy of any order complained of. Further, every statement of fact in the petition must be supported by citation to competent evidence included in the appendix or record. Go to the clerk to get certified copies of court records. Now $5 a page!

The Standard of "No Evidence" Review Four basis under Texas law for asserting a legal sufficiency challenge to a verdict or a particular fact finding:

(1) a complete absence of evidence of a vital fact, such as a component element of a claim or defense; (2) the court is barred by rules of law, such as the parole evidence rule or a rule of evidence, from giving weight to the only evidence offered to prove a vital fact. (3) the evidence offered to prove a vital fact is no more than a mere scintilla (AKA "no competent evidence"); or (4) the evidence conclusively established the opposite of the vital fact.

A directed verdict is proper when:

(1) a defect in the nonmovant's pleadings makes them insufficient to support a judgment; or (2) the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law; or (3) the evidence offered is legally insufficient to raise an issue of fact as to every element of a ground.

First Type of Equitable Bill of Review Fraud from other party A party can successfully use a bill of review to set aside a judgment by alleging and proving the Hagedorn requirements: (3)

(1) a meritorious defense to the cause of action [alleged to support the judgment] which he or she did not have an opportunity to present at the original trial; (2) an excuse justifying the failure to make the meritorious defense which is based upon the EXTRINSIC fraud, accident, or wrongful act of the opposite party; AND (3) the absence of fault or negligence by the parting seeking the bill of review relief.

Tex. R. Civ. P. 267(b): The following people may be exempted from "The Rule," and may remain in the courtroom:

(1) a party who is a natural person or the spouse of such natural person, or (2) [if an entity] an officer or employee of a party that is not a natural person and who is designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the cause. Tex. R. Civ. P. 267(c): If any party is absent, the court in its discretion may exempt from "The Rule" a representative of such party.

Clerk's Record Unless the parties designate additional items to be included in the clerk's record, the clerk will include the following in the clerk's record:

(1) all pleadings on which the trial was held; (2) the court's docket sheet; (3) the court's charge and jury verdict; (4) the court's judgment or other order being appealed; (5) any request for findings of fact and conclusions of law, any post-judgment motions, and the court's order on the motion; (6) the notice of appeal; (7) any formal bill of exceptions; (8) any request for a reporter's record, including any statement of points or issues under Rule 34.6(c); (9) any request for preparation of the clerk's record; (10) a certified bill of costs, including the cost of preparing the clerk's record, showing credits for payments made. A party requesting that any other item be included in the clerk's record must specifically describe the item so that the clerk can readily identify it. These are charged on a per page basis from the clerk's office.

How did the majority explain "The Harmless Error Rule?" The standard has shifted over time. In the case of improper jury argument, the complainant must prove a number of things to prove harm. He has the burden to prove (7)

(1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. There are only rare instances of incurable harm from improper argument. (5) that the argument by its nature, degree and extent constituted reversibly harmful error. (6) the argument's probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.

In a jury charge, an Objection is the proper method of preserving complaint as to (2)

(1) an issue actually submitted, but claimed to be defective; or (2) failure to submit, where the ground of recovery or defense is relied on by the opposing party. Timing: Before charge is read to jury Objections can be written or oral (typically oral)

Complaints Concerning Sufficiency of Evidence "No evidence" points must be preserved through one of the following:

(1) an objection to the submission of an issue to the jury; (2) a motion for instructed verdict; (3) a motion for judgment notwithstanding the verdict; (4) a motion to disregard a jury's answer to a vital fact issue; OR (5) a motion for new trial. * A motion to modify the trial court's judgment can also be used to make and preserve "no evidence" complaints for appellate review.

Function of Instructions and Definitions - For an instruction to be proper, it must (3)

(1) assist the jury; (2) accurately state the law; and (3) find support in the pleadings and the evidence. The only function of an explanatory instruction in the charge is to aid and assist the jury in answering the issues submitted. The only requirement to be observed is that the trial court must give definitions of legal and other technical terms. Nothing else, however interesting, or, indeed, however relevant to the case in general, which does not aid the jury in answering the issue, is required. The trial court has considerably more discretion in submitting instructions in this area than it has in submitting special issues No need to define terms unless they have a distinct legal meaning

In a suit in which termination of the parent-child relationship is requested, the court shall submit separate questions for each parent and each child on (2)

(1) each individual statutory ground for termination of the parent-child relationship and (2) whether termination of the parent-child relationship is in the best interest of the child. The court shall predicate the best-interest question upon an affirmative finding of at least one termination ground. (effective May 1, 2020 subject to public comment) Rule Comment to 2020 Change: Rule 277 is revised to require a jury question on each individual statutory ground for termination as to each parent and each child without requiring further granulated questions for subparts of an individual ground for termination. Rule 277 is also revised to require a separate question on best interest of the child as to each parent and each child that is predicated on an affirmative answer to at least one termination-ground question. The revisions supersede Texas Department of Human Services v. E.B., 802 S.W.2d 647 (Tex. 1990).

A restricted appeal is allowed only if the appellant: (4)

(1) filed his notice of restricted appeal within 6 months after the judgment was signed; (2) was a party to the underlying lawsuit; (3) did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. (always required in any appeal; it is considered unethical to bring in outside facts)

A person qualified to serve as a petit juror may establish an exemption from jury service if the person: (9)

(1) is over 70 years of age; (2) has legal custody of a child younger than 12 years of age and the person's service on the jury requires leaving the child without adequate supervision; (3) is a student of a public or private secondary school; (4) is a person enrolled and in actual attendance at an institution of higher education; (5) is an officer or an employee of the senate, the house of representatives, or any department, commission, board, office, or other agency in the legislative branch of state government; (6) served too recently, can get out: - is summoned for service in a county with a population of at least 200,000, unless that county uses a jury plan under Section 62.011 and the period authorized under Section 62.011(b)(5) exceeds two years, and the person has served as a petit juror in the county during the 24-month period preceding the date the person is to appear for jury service; (7) is the primary caretaker of a person who is unable to care for himself or herself; (8) (served too recently) except as provided by Subsection (b), is summoned for service in a county with a population of at least 250,000 and the person has served as a petit juror in the county during the three-year period preceding the date the person is to appear for jury service; or (9) is a member of the United States military forces serving on active duty and deployed to a location away from the person's home station and out of the person's county of residence. Can get released for a religious holiday.

Control by the Court: The trial court has discretion. Tex. R. Evid. 611(a) = The Court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment

Excessive or Inadequate Damages; Remittitur What happens in a case where the only problem with the jury's findings is the damage question? Everything else is supported by the weight of the evidence, but the damages are way off, being way too high or way too low in light of the evidence. When can the TCt disregard a jury's findings? Very limited. Only rarely given that there is a constitutional right to a jury finding. Has to be limited. 1) Legal or factual sufficiency (jury didn't follow instructions); 2) finding is immaterial (shouldn't have gone to jury in the first place); or 3) the law doesn't allow that type of recovery or defense. *Judge has two options if the jury award is astronomical compared to what the evidence supports:*

(1) new trial or (2) make suggestion to lower damages award (*remittitur*) Court cannot ever require party to accept remittitur. Other jx have "additure" - where jury award is too low. TX doesn't have a rule that allows, but doesn't specifically prohibit. Carlson has never seen it.

A writ of prohibition is an order from a court of superior jurisdiction to a court of inferior jurisdiction prohibiting it from acting. The writ of prohibition has 3 functions:

(1) preventing interference with a higher court in deciding a pending appeal; (2) preventing inferior courts from entertaining suits which will relitigate controversies which have already been settled by the issuing courts; (3) prohibiting a trial court's action when it affirmatively appears that the court lacks jurisdiction. *Procedural Requirements* The procedural requirements for writs of prohibition as the same as those for seeking a writ of mandamus. TRAP 52

The standards by which trial judges and appellate judges may set aside or overturn a jury verdict are different. The Rules of Civil Procedure afford a trial court considerable discretion to set aside a jury verdict, even on its own motion. Tex. R. Civ. P. 320, 326, and 327. Appellate judges have much less discretion because they are limited to the issues urged and record presented by the parties and because appellate courts are specifically limited to reversing judgments only for errors that (2)

(1) probably resulted in entry of an improper judgment or (2) precluded a party from properly presenting its case on appeal.

Tex. R. Evid. 701 provides that a non-expert witness' testimony in the form of opinions or interferences is limited to those that are:

(1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of his or her testimony or the determination of a fact in issue.

PRESERVATION OF ERROR IN VD: It is incumbent upon counsel, prior to exercising her peremptory challenges, to advise the trial court of two things:

(1) that she would exhaust her peremptory challenges; and, (2) that after exercising her peremptory challenges, specific objectionable jurors would remain on the jury list. Absent such notice to the trial court she waived any error committed by the court in its refusal to discharge those jurors who were challenged for cause. SO THERE ARE TWO objectionable jurors - One should have been struck for cause Another who remained on the jury because you had to use peremptory challenge on juror that should have been eliminated for cause

*New Trial Based on Newly Discovered Evidence*: "It is incumbent upon a party seeking a new trial on the ground of newly discovered evidence to satisfy the court:

(1) that the evidence has come to his or her knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is not cumulative; (4) that it is so material that it would probably produce a different result if a new trial were granted.

Judicial Admissions and Contradictory Testimony A party's testimony which is contrary to his position is a quasi-admission. It is given conclusive effect and is treated as a judicial admission if:

(1) the declaration was made during a judicial proceeding, (2) the declaration is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony, (3) the declaration is deliberate, clear, and unequivocal, (4) giving the declaration conclusive effect is consistent with the public policy upon which the rule is based, and (5) the statement is not also destructive of the opposing party's theory of recovery. Ex. Plaintiff admits it purchased the product to accommodate his friend-judicial admission not a consumer so matter of law defeats DTPA claim; this is a judicial admission. Trial court granting Instructed Verdict (P take nothing) proper. EX: D admits in testimony that the P's damages are correct. NOT common.

Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81 (Tex. 1992). FACTS: Default judgment for amount: $83k, can't collect, so P gets writ of garnishment on Bank even though garnishee Bank only had $27. Innocent holder of funds. Only $27, so Bank president didn't feel like it was worth paying a lawyer, just takes bank account proceeds and sends to the court. DID NOT FILE AN ANSWER as required by a garnishee (or risks a default judgment). Default judgment is entered for full amount of judgment $83k, even though the bank only has $27. So Bank then hires a lawyer. Files a timely equitable MNT (within 30 days of when the judgment was signed) and explains that they misunderstood their legal obligations. ISSUE: is this a basis for granting a MNT? COURT: Apply the Craddock 3-Element Test Craddock test: A default judgment should be set aside and a new trial ordered in any case in which:

(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; --HERE: mistake of law qualifies. This was not intentional. (2) provided the motion for new trial sets up a meritorious defense; and, ---Means you have to plead. Garnishee Bank account only had $27 in it; we're an innocent 3P holding funds (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. ---Typically that means that the D will pay the attorney's fees from the default judgment. Thus, the P is not out anything; puts P back in the position they were in.

What is an "equitable" motion for new trial? What is the difference between a legal MNT and an equitable MNT? Difference between legal motion for new trial and Equitable motion for new trial - in equitable MNT, the party says, "I made a mistake, but can I have a new trial." EX: default judgment. "My bad." But in equity can you grant me a new trial? Equitable Motions for New Trial: "A trial court's discretion in determining whether to grant a new trial after the court renders a default judgment must be referenced to a guiding principle or rule." (Craddock 3-element test). Craddock test: A default judgment should be set aside and a new trial ordered in any case in which:

(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided (2) the motion for new trial sets up a meritorious defense; and, (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. ---this is often done by the movant offering to pay P's attorneys fees in obtaining the default judgment and agreeing to go to trial immediately

Second Type of Equitable Bill of Review Mislead or prevented from filing by misinformation from the court A second type of bill of review is shown by Hanks v. Rosser, where the Texas Supreme Court held that the judgment should be set aside if it is shown that: (4)

(1) the failure to file an answer is not intentional or the result of conscious indifference; (2) the defendant was misled or prevented from filing a timely motion for new trial by misinformation of an officer of the court acting within official duties; (3) the defendant has a meritorious defense; (4) no injury will result to the opposite party. Official mistake to support bill of review relief may be premised on the clerk's failure to send notice of the court's intention to dismiss a case for want of prosecution. Pretty rare that the court's staff is going to mislead you. EX: clerk files D's answer but incorrectly and P gets default judgment. Can get bill of review

An offer in proof may be made by:

(1) through a witness testimony on a question and answer basis, or (2) by counsel summarizing what the excluded testimony would be on the record. But if other side objects or court directs, then the offer of proof should generally be on a question and answer basis. If a document is excluded, then ask the document be included in the record. It's not "evidence" it is "of record"

The following factors are relevant to the issue of whether the jury request was not made within a reasonable time: (3)

(1) whether a resetting on the jury docket would result in an unnecessary delay in the court's docket (2) whether a resetting would interfere with the handling of the court's business (3) whether a resetting would cause prejudice to other parties

Among the factors the court considers in determining whether an appeal is frivolous are (2)

(1) whether the appellant had a reasonable expectation of reversal and (2) whether it pursued the appeal in bad faith. * Where an appellant's argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed, good-faith challenge to the trial court's judgment, sanctions are not appropriate.

Lay people can give opinions about things that are within their perception

(EX: in my opinion he was drunk, she was loud, he was speeding)

Opinion Testimony: -If the opinion testimony is clear and uncontroverted and the opposing side had an opportunity to cross exam the witness, does it establish any material fact as a matter law?

(Only if the subject is one exclusively for expert or skilled witnesses)

Govt. C § 22.225. Effect of Judgment in Civil Cases

(a) A judgment of a court of appeals is conclusive on the facts of the case in all civil cases. [So no factual sufficiency review in Texas Supreme Court]

The following interlocutory orders are immediately reviewable.

(a) A person may appeal from an interlocutory order of a district court, county court at law, or county court that: [DO NOT HAVE TO MEMORIZE THESE] (1) appoints a *receiver or trustee*; (3) certifies or refuses to certify a class in a suit in a *class action* (4) grants or refuses a *temporary injunction* or grants or overrules a motion to dissolve a temporary injunction (5) denies a motion for summary judgment that is based on an assertion of *govt immunity* sovereign/qualified (6) *denies a motion for summary judgment* that is based in whole or in part upon a claim against or defense by a member of the *electronic or print media*, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the *First Amendment* to the United States Constitution, or Article I, Section 8, of the Texas Constitution, or Chapter 73; (7) *grants or denies the special appearance* of a defendant under Rule 120a, Texas Rules of Civil Procedure, except in a suit brought under the Family Code; (8) grants or denies a *plea to the jurisdiction by a governmental unit* [another sovereign immunity issue] as that term is defined in Section 101.001; (9) *Medmal stuff; expert report requirement* (10) *TX Citizens Participation Act - allows a court to dismiss a case when they think it is a retaliatory litigation.* EX: Builder gets a bad review. Builder sues for defamation. Court may dismiss if the P cannot put up prima facie case Carlson hates this act. It's very pervasive. Must know if you do civil litigation. (13) (Second version) denies a motion for summary judgment filed by an electric utility regarding liability in a suit subject to Section 75.0022. Has to do with *giving immunity to the govt if the citizen is granted the right to use a utility easement* (or something) (14) denies a *motion filed by a municipality with a population of 500,000* or more in an action filed under Section 54.012(6) or 214.0012, Local Government Code. Deals with *cities trying to tear down run down buildings*.

Once the original findings of facts and conclusions of law are requested, *the prevailing party does not get the benefit of the presumption* and in at least four situations will need to request additional or amended findings in accordance with Tex. R. Civ. P. 298, as follows:

(a) To preclude waiver of an entire ground of recovery or defense on which no finding is made (See Tex. R. Civ. P. 299); (b) To avoid "deemed" findings: court has made findings on some elements but not all. To avoid an attack on the judgment based on the ground that the express findings (when coupled with any deemed findings on "omitted unrequested elements") are sufficient; and (c) To amend an adverse finding. Putting before the court the specific amended finding we're asking for. (d) To resolve any conflict in the fact findings. Winner and loser need to very carefully review, and request additional findings in these scenarios.

Consider advantages and disadvantages of choosing a jury:

(a) Whether jury or judge would have more sympathy for client's contentions. (b) Whether case is so complex that presentation to jury would be inordinately complex or jury might not fully understand. (c) Any matters of personal background and natural inclinations of judge that might cause him or her to favor or disfavor client's position. (d) Whether impact of hoped-for decision on voting public means that jury would be more free to be sympathetic to client than judge. (e) Whether court or jury trial would cause judge to press for compromise of matter. (f) Would reputation of client or attorney have stronger effect, for good or bad, on judge or jury. (g) Does delay inherent in seeking jury trial help or hinder client or witnesses. (h) What increased expenses are involved in presentation of case to jury, including but not limited to: --(i) Attorney time needed to research, draft, prepare, and argue charge to jury. --(ii) Need to impress jury with live testimony rather than deposition testimony. --(iii) Cost of preparation of demonstrative evidence (i.e., charts, graphs, photo enlargements) suitable for presentation to jury.

The entire deposition should not be read or offered into evidence. Why?

(parts are likely inadmissible, because hearsay, etc.); instead, the offering party should read only those portions that he or she desires, and the opponent may offer any others that he or she chooses.

EX1: Judgment on DAY ZERO. Party files for FFCL on Day 1. Judge enters FFCL on day 2. Now party has 10 days from that new triggering event (the judge's filing of FFCL) to request amended FFCL How many days since judgment day to file requesting amended FFCL?

(up to Day 12 since judgment day).

EX2: Judgment on DAY ZERO. Party files for FFCL on Day 10. Judge enters FFCL on day 20. Now party has 10 days from that new triggering event (the judge's filing of FFCL) to request amended FFCL How many days since judgment day to file requesting amended FFCL?

(up to Day 40). KEY: must wait for triggering event. So timetable can change in every case. NOT STATIC. It's NOT 20/20/10 = 50. It could be 4/5/10 = 19. Tell your staff: if anything comes in with "findings of fact" notify immediately.

Special Charge:

(used in TX) Asks the jury to answer controlling questions of fact on grounds raised by the pleadings and proof. The court applies the law and determines the proper judgment. Uses "jury questions" Until 1973, used "separate and distinct" submission that broke down legal claims into a question on each element Since 1973, and especially since 1988, Texas uses "broad form" questions, which takes all elements and combines into a single question. May also combine separate COAs into single question, or combine COAs with defenses EX: "Whose negligence, if any, proximately caused the occurrence in question" - combines negligence and contributory negligence ` Jury questions used to be called "special issues"

Certain Orders in Health Care Liability Cases § 74.351(a) of the Civil Practice and Remedies Code requires a claimant in a health care liability case to serve an expert report on each party or the party's attorney for each physician or health care provider against whom a liability claim is asserted. § 74.351(b) of the Civil Practice and Remedies Code provides that if a report is not timely served, the court, on the defendant's motion, must award the defendant reasonable attorney's fees and court costs and dismiss the claim with respect to the physician or health care provider with prejudice.

* An interlocutory appeal is available to a defendant from a trial court order denying relief under Section 74.351(b). § 74.351(1) of the Civil Practice and Remedies Code provides a trial court must grant a defense motion that challenges the adequacy of an expert report only if it appears that the report does not represent an objective good faith requirement to satisfy statutory requirements. * An interlocutory appeal is available to a claimant from an order granting relief under Section 74.351(1).

Tex. R. Civ. P. 324(b) Used to be that you filed a MNT had to include ALL grounds on appeal. Kitchen-sinked to CYA the lawyer. Not helpful to trial judge. So 324b was amended Civil Procedure Rule 324 now provides that a motion for new trial is NOT a perquisite to the right to complain on appeal in any jury or nonjury case EXCEPT to preserve:

*(1) complaints on which evidence must be heard;* -Ask yourself as trial lawyer: is there some error that I want to assert on appeal that I don't have evidence to support, and can I complain this late? -Often stuff you don't discover until after trial. -EX: misconduct of jurors or bailiff. -EX: You discover there's a default judgment rendered against you, and you want to show equitable basis for setting aside. Must show facts that demonstrate diligence. *(2) complaints of factual insufficiency of the evidence to support a jury finding;* -Factual sufficiency issue: weight of evidence doesn't support jury finding; [NO NEW EVIDENCE NEEDED FOR THIS TYPE OF MNT] *(3) complaints that a jury finding is against the overwhelming weight of the evidence;* -Factual sufficiency issue: weight of evidence doesn't support jury finding; [NO NEW EVIDENCE NEEDED FOR THIS TYPE OF MNT] *(4) complaints of the inadequacy or excessiveness of damages found by the jury; or* -Factual sufficiency issue: weight of evidence doesn't support jury finding *(5) complaints of incurable jury argument, if not otherwise ruled upon by the trial judge.* -There are some types of jury argument that are incurable; even an instruction to jury can't get it out of the jury's mind. -Can't unring bell -Can either make a contemporaneous jury argument, OR -Wait, see how the jury comes back; Make a MNT - you better be right that it is incurable or you have waived it by not making a contemporaneous objection

3 Standard of Appellate Review

*1) Abuse of Discretion* - gives the most discretion to TCt *2) Legal/Factual sufficiency* - can this finding hold water under the evidence? -Some discretion afforded trial court *3) De Novo* - fresh eyes, no discretion to Tct Standards of review ask: what is the prism through which the appellate court is supposed to view trial court decisions to decide if there is error, and if so, decide if it's reversible error?

Avoiding Malpractice Claim Assume the trial court signs a "FINAL Judgment" on October 1 addressing one of two claims. However, the other claim raised by the pleadings has not been adjudicated. Is the title of the judgment controlling for purposes of determining finality? NO. What to do?

*1) Move the trial court to vacate the judgment explaining why this is not a "FINAL Judgment"*; or - Best option: cheapest and fastest. Educate the court. - TCTs don't like to be reversed on appeal. *2) File a notice of appeal and have appellate court dismiss for want of jurisdiction because it's an interlocutory order,* or, Court of appeal should dismiss for want of jx because unless there's a statute that allows *3) Do nothing: the record does not support this is a final judgment, assuming the language of the judgment does not purport to dispose of all parties and issues.*

Three scenarios for Motion for Instructed Verdict (AKA "Directed" Verdict)

*1) Opposing party has failed to put on any competent evidence on an element of their ground*, -Should file if party with BOP doesn't put on evidence for every single element *2) a Party Movant has conclusively established every element of their ground.* (Legal sufficiency complaint) "clear, positive, direct, and free from inconsistencies," *3) opposing party is asserting a ground that is not recognized under Texas law*

Two ways to present appellate complaints:

*1) Points of Error:* Should be concise. Will be treated as covering subsidiary questions. Should be drafted in broad form Best drafted in "who, what, why" form. ---EX: "The TCT [who] erred in overruling D's objection to the submission of jury question number [what], because there is no evidence to support its submission. [why]. *2) Issues/Questions of Law*: legal question rather than the particular ruling made is emphasized. EX: Whether a state property tax on bank shares computed on a bank's net assets without deduction for tax-exempt US obligations owned by bank violates 31 USC 42 Issues are preferred by most ACt, and definitely should use Issues at TXSC.

Jury Selection in Practice The Conduct of the Voir Dire Examination in Practice. D. Crump, Attorneys' Goals and Tactics in Voir Dire Examination, 43 Tex. B.J. 224 (1980) (highlighting some of the uses of voir dire). The ostensible goal of VD is to obtain info upon which to base peremptory challenges and challenges for cause. But most lawyers use it for other purposes as well. Some consistent with these goals, some are questionable ethically. Additional goals include:

*1) emphasizing favorable law or facts* EX: D lawyer will make an effort to define the prosecution's BOP so as to make it appear as heavy a burden as possible. EX: P's lawyer in personal injury will explain that negligence just means "carelessness" *2) Limiting the effect of unfavorable law* EX: prosecution emphasizes that BRD does not mean proof beyond all doubt, but proof in light of reasonableness. *3) inoculation against unfavorable facts* Lawyer introduces unfavorable info upfront; try to show that it lacks relevance. "You can still be fair to my client, right?" EX: if client has a felony conviction that is going to become known when he testifies, a lawyer often decides that it would be unwise to wait to introduce the jury to it. Info may seem less catastrophic if the jurors have been expecting it. *4) obtaining commitments* "You can do as the law requires if I show X?" Lawyer presents the law to the jury as "the law" which the jurors must follow and obtains their commitment to do so. Theory is that after making such a commitment, the jurors are more likely to follow through *5) personalizing the client* Introduce the client, tell a little about him. Can be used along with commitment: "Can you promise John over there that you will follow the law and give him a fair trial?" *6) arguing the case itself* Some lawyers use VD as an opening statement of sorts *7) conditioning the jurors to accept one's proof* Subtle tactic. Depends on type/strength of evidence. EX: if you only have one witness, emphasize that is all it takes, just need the essentials of the law *8) building rapport* Diplomacy with the jury. Using humor, homely analogies, folksy mannerisms *9) stealing adversary's thunder* Other side will argue.... *10) increasing or decreasing the impact of concerns outside the evidence.* Ethically dubious EX: if insurance is involved in case, but not allowed into evidence, P's lawyer can imply by asking "anyone work for an insurance company? Can you be fair even though they pay for lawyers like the D on trial here?" *11) guiding the conduct of the jurors in deliberations* EX: "nominating" a foreperson: "Mr. Smith, it may be necessary for you to serve as foreperson, could you do that?" EX: "When you go into the jury room, you'll have to...." *12) disqualifying unfavorable jurors* Lots of tactics. EX: if a juror is equivocating on bias, try to get to take a stand: "Your answers won't change if I ask you a bunch of questions, will it?" *13) using members of the panel as "witnesses"* When a juror speaks, the rest of the jury hears it. Attorneys can exploit by using members of the jury as "witnesses" for their positions. EX: "Have you ever mistaken someone for someone you knew?"

The right to a jury trial is NOT automatic. What must a claimant do to prevent waiver of its right to a jury trial? (3)

*1) pay jury fee to the clerk's office* -($10 district court; $5 county court, but some counties add fees for law library in the county, etc.) *2) make written demand for a jury filed with the court* (you can include in the pleading, the original petition). *3) make request within the time period required* -If you make your demand in your original pleadings, you have an *absolute right to a jury trial.* -Thereafter, you have the right to a jury trial if you file it within a reasonable time before the date the trial begins, but NOT LESS THAN 30 DAYS BEFORE TRIAL. -We see from the caselaw that the 30 day timetable is a rebuttable presumption of reasonableness. -30 days may or may not be considered timely. In Six Flags case, it wasn't.

Davis v. Fisk Elec. Co., 268 S.W.3d 508 (Tex. 2008). Authored by first black TXSC chief justice FACTS: The employee, who was African American, alleged that he was terminated based on his race. At the conclusion of voir dire, the employers' counsel peremptorily struck six venire members, five of whom were African American and all of whom were minorities. The explanations given for the strikes included unspecified nonverbal conduct, past experience with employment discrimination issues, occupation, and reaction to offensive racial language. P raises a Batson challenge. Court denies challenge; jury comes back with take-nothing judgment. ISSUE: Did the trial court abuse it's discretion in denying the Batson challenge? What are the *5 Miller-El factors* used to analyze validity of the Batson claim?

*1) statistical data* pertaining to the prosecutions strikes What percentage of the class that was struck? Suspect pattern? HERE: Yes. 89% *2) comparative juror analysis* - is the reason given to support the strike (the non biased reason) applied equally to all jurors? Or were others given that question not struck because they were not of that race/ethnicity/gender? *3) prosecution's use of the jury shuffle* -Unique to TX; trying to change the make up of jury. -First 6 not struck in county/JP court -First 12 not struck in district court Q: are you really trying to ensure fairness/randomness, or doing a backdoor improper Batson by changing the racial composition? *4) contrasting voir dire questions posed respectively to black and nonblack panel members* *5) county's history of systematically excluding blacks from juries* In Miller-El they had a formal policy that called for exclusion of minorities. Had a playbook for doing so. *What is the ultimate holding of Davis using these factors?* -D counsel: I'm not striking the jurors because they are black, I'm striking them because of their *nonverbal behavior.* *HELD*: Looking at the same factors here, the overruling of the Batson challenge was an abuse of discretion. Reverse and remand *Nonverbal cues CAN be a basis for striking a juror, but you MUST note them in the record so appeals court can review* EX: juror rolls their eyes, sleeping during VD, etc. - MAKE SURE YOU NOTE IN THE RECORD.

Avoidance Doctrines - Reliance upon reversal as a curative to improper argument is NOT advisable. In the majority of even those cases in which argument is held to be improper, the courts do not reverse. Three principal avoidance doctrines are the basis of these refusals to reverse:

*1) the doctrine of waiver* - failure to object or to press for an instruction to disregard Problem is, quite often, it requires extraordinary diligence on the part of counsel to object immediately before opposing counsel has moved on. *2) the doctrine of cured error* - the notion that an instruction to disregard removed the taint -may be set up by an objection, if any is made, and a request to disregard. If the court instructs the jury to disregard, the instruction is considered adequate in most cases. The error may also be cured by a statement from the arguing attorney restricting the argument. -notice that for curable error, objection is required, and it is reversible only if the court refuses the objection or a request for an instruction to disregard. But for incurable error, reversal may follow even in the absence of objection. *3) doctrine of harmless error* - refusal to find that the argument was reasonably calculated to cause and probably did cause the rendition of an improper judgment pursuant to Appellate Rule 44. -Often coupled with the cured error and the waived error doctrines

Expert Testimony Changed dramatically since 1993 Daubert decision. Before that, it was not a basis to object to expert testimony that it really was not reliable. There was no big gatekeeping function of the trial court. That was a matter of credibility. EX: in tobacco cases, industry would have studies performed that smoking was good for you. Courts were concerned that decisions were based on junk science. Trial courts need to have power to determine if expert testimony is reliable. Today, Expert testimony is admissible when:

*1) the witness is qualified to testify as an expert by his or her knowledge, skill, experience, training, or education about the matter that is the subject of the opinion;* Cardiac surgeon can't give opinions about orthopedic matters *2) scientific, technical, or other specialized knowledge possessed by the expert will assist the trier of fact to understand the evidence or to determine a fact in issue*, and -When does it not assist fact finder? -When they don't need it. Within the understanding of everyone. -EX: slip and fall case. People understand the consequences of gravity from everyday experience. -But if you have issue outside common understanding, you must have an expert. -Have to get an expert in that field or motion to strike will remove that expert, and now you don't have any evidence to support claim and you lose as a matter of law. -More and more suits require experts on the front end (medmal) *3) the opinion is based on a matter that constitutes a permissible basis for expert opinion testimony.*

*1) First, the complaining party must establish a prima facie case that opposing counsel has engaged in purposeful discrimination through the use of peremptory challenges.*

*A prima facie case is the "minimum quantum of evidence" necessary to support the rational inference that counsel has used one or more peremptory challenges in a racially discriminatory manner.* -A prima facie case is established by a suspect pattern of strikes against members of a protected class. Must show suspect pattern of strikes (name class and identify the pattern, AND THE FISK FACTORS -The trial judge must then decide whether the complaining party has made a sufficient primary facie showing of purposeful discrimination. FISK FACTORS *1) statistical data* pertaining to the prosecutions strikes *2) comparative juror analysis* - *3) prosecution's use of the jury shuffle* *4) contrasting voir dire questions posed respectively to black and nonblack panel members* *5) county's history of systematically excluding blacks from juries*

Subject Matter Jurisdiction of Appellate Courts in Civil Cases Restrictions on appellate court jurisdiction in civil cases:

*AIM* - have to have AIM exceeding $250. *Geography* - When we're going to appeal, we have a statute for each court of appeals and it names the counties and where we are going to appeal -In Houston, you don't get to pick between 1st and 14th; randomly assigned. *Final judgment* - last chapter - have to have a final judgment, unless a statute allows interlocutory appeal

What is the difference between a party's burden of proof versus an appellate standard of review?

*BOP* - looking at elements of case (ground of recovery or defense), and then looking at the law to see how much we have to prove this by? -Usually POE, sometimes CCE (very rare)

Contents of the Appellee's Brief: Reply Points and Cross-Points Appellee's brief must generally conform to the structure of the appellant's brief, except:

*Counterpoints* - response to appellant's points *Crosspoints* - appellee asserts error by the TCT as to appellee EX: I should have recovered on this ground but not that ground. Used basically to give a backup ground in case ACt finds against appellee on ground used by TCT. Comes into play sometimes with JNOV

The deposition testimony is offered by

reading it on a question and answer basis, in the presence of the jury, with opposing counsel afforded the opportunity to make evidentiary objections. Generally counsel will read the questions and another person (usually sitting in the witness chair) will read the answers.

McCauley v. Charter Oak Fire Ins. Co.,660 S.W.2d 863 (Tex. App.—Tyler 1984, writ ref'd n.r.e.). Workers comp case. Questions p487, the jury finds that the P suffered an injury in the course of employment, but it was NOT a producing cause of any incapacity. Jurors send out note saying that the same 10 jurors cannot agree to the same questions. 10-12 agrees to questions 1 and 2 Different 10 agree on other questions Court discharges the jury, and then is talking to the jurors, and then asks them to go back and write down who agrees to what. Which 10 agree to each question. Don't have the same 10 agreeing to all material question. TCt enters judgment that P take nothing.

*Did the trial court error in returning the jury to further deliberate after the jurors had been "discharged"? Why or why not?* -NO. Once the jurors are discharged they are free to talk to others, read internet, do whatever they want about the case, so usually not okay to bring back. But here, there was no true discharge, because the jurors didn't leave court room and remained in control of the court, so TCt could have further deliberations. *What if the jurors had left the courtroom?* Different result. Then they would have been free to do things that would expose to outside influences. *Did the trial court err in entering a take-nothing judgment based on a 10-2 verdict when a different set of 10 jurors agreed to different jury questions?* Tyler Court of Appeals said that issues 1 & 2 were material because the jury had to answer them before they could reach questions 3 & 6, and had to be answered by the same ten. WRONG STANDARD FOR MATERIALITY Criticism of McCauley: Did not apply proper standard for determining materiality. NOTE 1: you can make a strong argument, Carlson believes is legally correct that question 1 and 2 became immaterial by virtue of jury's answers to 3 and 6. "Issues are only immaterial if their answers can be found elsewhere in the charge, they should not have been asked to begin with, or if they cannot alter the legal effect of the verdict." Q 1 and 2 became immaterial once jury found there was no damages. While it is true that you have to have the same 10 or more agree to the same material questions, but here it doesn't appear Q 1 & 2 were material.

Inadvertence or mistake of counsel can furnish proper grounds for an

*EQUITABLE motion for new trial after a default judgment* or for *reinstatement of a case dismissed for want of prosecution.*

Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). Year 2000 case, now a very conservative SC and TXL. While TRCP 277 says broad form should be used "whenever feasible", Court starts walking back broad form submission. FACTS: Some claims are brought under the insurance code, some under the DTPA. An objection is made that some of the claims require consumer status for the P, and the insurance agent asserting a claim against the insurance company is NOT a consumer. Thus, it is NOT a valid claim. ISSUES: Whether the inclusion of invalid and valid theories of liability in a single broad-form question constitutes harmful error.

*HOLDING: Commingled Grounds of Recovery:* When a single broad-form liability question erroneously commingles valid and invalid theories and the appellant's objection is timely and specific, the error is PRESUMED HARMFUL when it cannot be determined whether the improperly submitted theory formed the sole basis for the jury's finding. IN THIS SITUATION BROAD FORM SUBMISSION IS NOT FEASIBLE.

Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992). FACTS: "Green Glo" used in floral department made floor waxy; P slip and fall. COA negligence and premises condition. TCt jury found there was a slippery spot, but refused to find Kroger knew or should have known of the spot and rendered a take-nothing verdict. ISSUE: The appropriate jury submission of a case involving a slip and fall in a Kroger.

*How were the controlling fact questions presented to the jury in the charge: separate and distinct or broad form? (See footnote 2 and 6 of opinion)* Separate and distinct. Tracks negligence elements from TXPJC. P argues it should have been broad form submission, as required under TRCP 277 *Why does the court not decide whether failure to submit in broad form was reversible error?* because Keetch did not provide the trial judge with any indication that her complaint was with the trial court's failure to submit in broad form. Didn't properly preserve complaint. *Preservation of error: How does counsel preserve error that the charge is not in broad form?* Error in the charge must be preserved by distinctly designating the error and the grounds for the objection at the charge conference at the latest. -Keetch first complained of the trial court's failure to submit in broad form in her application for writ of error to this court. Because there was not a timely objection, Keetch did not preserve error, if any, in the failure to submit in broad form.

Proof of extrinsic fraud, accident, etc. has been the most troublesome of the Hagedorn requirements. How do you distinguish "extrinsic" fraud from "intrinsic" fraud?

*Intrinsic fraud* relates to issues that were presented and resolved-or could have been resolved--in the former action. Fraudulent instruments and perjured testimony are considered intrinsic fraud because these are matters presented to and considered by the court in the original proceeding. *Extrinsic fraud* Deception which prevented the bill of review movant and his counsel from knowing about their rights or defenses, or from having a fair opportunity from litigating such rights upon trial. Must be perpetrated outside an adversary trial and must not relate to the merits of the case. EX: keeping a party away from court, serving the opponent by publication when the opponent's address was known, fraudulently procuring a relinquishment of parental rights, bribing a juror, failing to disclose to the court that he opponent was an incompetent so that a guardian ad litem could be appointed; denying a party knowledge of the suit--that affects the manner in which the judgment is procured. Only extrinsic fraud supports a bill of review MOST lawyers would never engage in extrinsic fraud - likely would be disbarred.

Jury charge objections - oral or written?

*Objections may be oral or written* (typically oral) -Must specifically identify the defect or problem -If the court doesn't change the charge based on objection, they are implicitly overruled. -Ruling may be explicit or implicit. ----If trial court does not change charge after objections timely asserted, assume implicit overruling But usually court just makes a ruling then and there on any charge objections

Petition for Review vs Brief On the Merits

*Petition for Review:* Requests the Texas Supreme Court to take the case (Limited to equivalent of 15 pages) It need not include all appellate complaints. *Goal*: Convince the Texas Supreme Court taking the case is important to the jurisprudence of the State. *Brief On the Merits*: Sets forth all appellate complaints, governing law and argument. (Limited to equivalent of 50 pages) *Goal:* Convince the Texas Supreme Court to reverse or modify the court of appeal judgment.

Plaintiffs Bar vs. Defendant's Bar on Broad Form questions

*Plaintiffs bar* - likes broad form submission If you've got multiple grounds, one shaky one solid, you prefer it all together. Defendant bad? Yes or No? Harder to undo on appeal. *Defense bar* prefers element by element. Allows D to have a very targeted appeal.

Purpose of Expedited Trials in TX

*Purpose*: Expedited Trials is an attempt to make cases more cost efficient to try. Allow average citizens that can't afford the increasing time/cost involved to be able to have a trial. -Cost of litigation and the time involved is so high that it was driving some people out of the system. Can't afford. Too much money/time. -TX Leg directed TXSC to enact rules of civil procedure that provide for expedited trial that make cases cheaper and more expedient. -Limits discovery time, time to try cases, etc. that override other rules of procedure as a way to make cases faster/cheaper to litigate. Expedited trials were passed in response to the explosion of litigation that happened in the 1970-80s. -Other means of dealing with increased litigation in addition to expedited trials, such as mediation and arbitration have expanded enormously as well. -Every time you click "yes" in an agreement online, you're likely agreeing to arbitration. -Daubert cases also ran up the cost of litigation, because you really have to have experts in the very field they are testifying that meet the Daubert standards. -If you have a case where you must have an expert (medmal, etc.), and the other side "Dauberts out" your expert, and you've got no other evidence, you will lose that case. -Increasingly, certain types of lawsuit require an expert affidavit at the time you file: medmal, suits against professional engineers/architects, etc. Shifts the expense right to the front of the case. Makes it really expensive to bring a case to hire an expert up front. -Throw in medmal damages caps, these restrictions have radically reduced medmal cases.

Generally each side is allowed six peremptory strikes in district court unless a co-party is antagonistic with respect to an issue that will go the jury. What is the meaning of "side?" What is the definition of "antagonistic?"

*Side* - one or more litigants who have common interests on the matters with which the jury is concerned Not each party that is allowed 6 strikes, it is each side. There can be more than two sides. Not synonymous with party, litigant, or person *Antagonistic* - if a party's theory casts blame or liability against another party -If there are parties on the same side that are antagonistic, that party can move for an equalization of strikes. -But does NOT mean there will be mathematical equality. -If the proportionate allocation is 4 to 1 or greater, then as a matter of law that is an improper allocation of peremptory strikes. Allows one side to basically pick the jury (that is not allowed; no side or litigant should get an unfair advantage)

Legal v. Factual Sufficiency How do legal sufficiency attacks differ from factual sufficiency attacks?

*Standards used to substantiate legal sufficiency attacks:* No evidence or matter of law/conclusive proof *Standards used to substantiate factual sufficiency attacks*: Insufficient evidence, or against the great weight and preponderance -Some evidence - but the finding is against the weight of the evidence.

Motion for Judgment Notwithstanding the Verdict (JNOV)

*TIMING: Made AFTER the jury's verdict* (otherwise similar to MIV which is during trial) (Legal Sufficiency Complaint—exact same standard as M for IV; this shouldn't gone to the jury, and if the jury made findings they should be disregarded) Requests the court to disregard the findings of the jury and to render judgment contrary to them, on the ground that the state of the evidence is such that the case should not have been submitted to the jury in the first place. (Ex. No competent evidence on an element, evidence is conclusive, ground not recognized under Texas law).

Motion for Instructed Verdict (MIV)

*TIMING: Made DURING the trial itself*, when the opponent rests or closes. -It asks the trial court to abort the trial and enter judgment without submission of the case to the jury as a party is entitled to judgment as a matter of law. -Same standard as JNOV - this should NOT to the jury, but be decided as a matter of law

Little Rock Furniture Mfg. Co. v. Dunn, 222 S.W.2d 985 (Tex. 1949). FACTS: P sues D in neg. D asserts P c/neg. Jury finds D Neg, prox cause and damages. Answers re P: Q 15 & Q 16 came to conflicting conclusions regarding P's contributory negligence. Q 17 (proximate cause) was improperly conditioned on answering 16 "yes", but since jury answered "no" they didn't answer No charge objection that Questions 15 and 16 ask the same thing ("different shades of the same issue"). Shouldn't have gone to the jury, but no one objected, so WAIVER. Nor was there an objection that Q 17 was improperly conditioned. Clearly a conflict that goes to the same inquiry as to whether P used ordinary care, and thus contributory negligent. Conflict, but is there a fatal conflict in the jury's findings to Q 15 and 16?

*Test for fatal conflict:* Consider each answer claimed to be in conflict disregarding the other conflicting answer but considering the rest of the verdict, and if so considered, one of the answers would require judgment in favor of the Plaintiff and the other would require judgment in favor of the Defendant, the conflict is fatal. So look at jury's answer to 15 (ignoring answer to 16) along with rest of jury's answers, what judgment? --Judgment for P (although found P failed to keep a proper lookout, deemed prox cause answered no, so missing an essential element of c.negl, so D's defense fails). Look at jury's answer to 16 (ignoring answer to 15) along with rest of jury's answers, what judgment? ---Judgment for P. P not c/neg. Again, no proximate cause. *HELD*: Since we reach the same judgment, there is NO FATAL CONFLICT. Trial ct judgment for P affirmed. What occurs when a party does not object to the submission of an improperly conditioned question (Q 17) and the jury does not answer that question? While the TRCP 277 allows damage questions to be conditioned on a finding of liability, otherwise conditioned questions are very rarely allowed because they have the effect of letting the jury know the legal effect of its answers. *COURT: If there's an improperly conditioned questions, there's no objection to the question, and the jury doesn't answer the question, the parties waived their right to a jury finding on that issue and the court will treat that as an omitted element DEEMED FOUND IN SUPPORT OF THE JUDGMENT.* So here, since P won, deemed there was no prox cause in c.negl.

Distinctive Roles Texas Supreme Court v. Texas Courts of Appeals

*Texas Supreme Court review is discretionary. Why?* TXSC has discretionary jx; they pick the cases they wish to take on (petition for review) - role of the TXSC is to develop the law of TX; not just an error correcting body. *The jurisdiction of the Texas Courts of Appeals over civil cases is obligatory.* If jurisdiction exists in the court of appeals, the court may not decline review assuming procedural prerequisites have been met to properly bring the appeal before the court. One big difference between ACt and TXSC is that ACts have obligatory jx. They MUST hear the case if you timely invoke their jx. Error correcting body. Has a duty to exercise jx.

Insufficient Evidence; Great Weight and Preponderance: *Why is the issue in Cooper a "great weight and preponderance" factual sufficiency complaint rather than an "insufficient evidence" issue?

*The party with burden of proof would assert against the "great weight and preponderance" issue. The party without the burden of proof would assert an "insufficient evidence" issue.

Gammill v. Jack Williams Chevrolet, Inc., (Tex. 1998). The Texas Supreme Court Applies Daubert/Robinson. Court is looking at whether or not two well-degreed individuals can qualify as experts in a wrongful death case.

*What is the connectivity requirement for expert opinion?* Must show how expert observations supported his conclusions in case; must be a clear connection between expert observations and expert conclusions Has to be relevant, reliable, and the facts have to lead to the conclusion. Here, the facts the expert talks about regarding her abrasions, etc. don't lead to the conclusion. *Gammills argue that Huston and Lowry were qualified as experts, that their opinions were reliable. Why does the Supreme Court disagree?* Working on fighter jets is not the same as working on cars. Must be an expert in the correct field.

Cortez v. HCCI-San Antonio, Inc. (Tex. 2005) FACTS: During voir dire, veniremember Snider, who worked as an insurance adjuster, said that he had preconceived notions and would feel bias because he had seen lawsuit abuse. But said he was willing to try to be fair. P tried to challenge for cause, but trial court rejected. So P used last peremptory strike. P claims that would have used another peremptory strike on replacement juror but had run out. (and thus preserved error for appeal) ISSUES: (1) whether the trial court abused its discretion in denying a challenge to an equivocating veniremember for cause, and (2) whether an objection to the denial was timely to preserve error. Case explains the type of bias or prejudice required for disqualification and how the issues are determined in the trial court

*Why did counsel believe the venire member was biased?* Because he said that due to his work experience as a claims adjuster, he was skeptical of such claims. *What is rehabilitation of a venire member and when is it allowed?* -Continuing to question a veniremember after expression of equivocal bias to see if he can be impartial *When is it not allowed?* -When the juror has expressed unequivocal bias: rehabilitation is not proper as a matter of law. -also, when it is excessive and duplicative or a waste of time If a juror's response indicates equivocal bias, the court can attempt to rehabilitate that juror by asking the juror if he or she can keep an open mind in the case and follow the court's instructions regarding the law. ---If the juror says yes, then the juror may be rehabilitated. ---Here, this is equivocal bias, because he said he would try to keep an open mind, even if he tends to lean one way. If a juror's response indicates unequivocal bias, then the court may not attempt to rehabilitate that juror and the juror must be dismissed as a matter or law. When you challenge a juror for cause, the juror knows that. So counsel is put in an awkward position where you have accused a juror of being biased, so you are very likely then to use a peremptory challenge if challenge for cause is refused. *What about argument that P can't make the required showing of harm because they won?* -P won $9M, but is appealing because after the jury's apportionment of fault, the judgment was just $87k. -Court: they can still challenge even if they win if they feel that they are still harmed because the jury award is too low, etc. *Court also found that error was properly preserved.* -Before the exercise of peremptory challenges, counsel stated that veniremember #7 was objectionable and they would not have sufficient strikes to remove #7 because they have to use it against Snider.

Diamond Offshore Mgmt. Co. v. Guidry, 171 S.W.3d 840 (Tex. 2005) (per curiam). FACTS: The employer argued that there was no evidence that at the time of the accident the decedent was in the course of his employment, as required by the Act. There was an INSTRUCTION to the jury that the worker had to be in the scope of employment, but no question relating to SOE.

*Why were the trial court's jury instructions inadequate?* Court didn't include the SOE issue in jury question. *What was the ultimate holding of Guidry?* Case illustrates: that DO you have the right to get every element of your ground (that is a controverted fact question) in the jury question. *According to the Texas Supreme Court, was the error harmful?* YES. It's a necessary element of the ground of recovery; and it's a fact question. The fact the jury didn't decide it is harmful. COURT: there's preservation of error, we think this was harmful, so reverse and remand to try the whole thing over again. Reversal based on charge error. Court doesn't go into the evidence. Just focus on the issue that they had a right to get the SOE issue into the charge and they didn't, so reversible. HELD: The supreme court initially noted that while there was thus some evidence that the decedent was in the course of his employment, that evidence was not conclusive; therefore, the issue whether he was in the course of his employment at the time of the accident was one for the jury. The supreme court held that despite the trial court's instructions regarding course of employment, the jury was only asked to find negligence and causation. The supreme court further held that the jury was not asked whether the driver of the truck was acting in the scope of employment at the time of the accident, a prerequisite for imposing vicarious liability on the employer.

When there's a party that was never served, never filed anything, doesn't participate, not mentioned in the judgment, "The case stands as if there had been a

*discontinuance* as to [the unserved party], and the judgment is to be regarded as final for the purposes of appeal.

A party is NOT entitled to the independent submission of issues, elements, or even grounds of recovery or defense in jury questions under Island Recreation. But a party IS entitled to the submission of each component element of the grounds of recovery or defense raised by the pleadings and the evidence by ....

*instructions and definitions*, even if the element is not mentioned by name in the question This is the take away from Island

INVITED ARGUMENT (AKA "OPENING THE DOOR") Much latitude is allowed counsel in replying to his opponent's argument. Hence, an argument, which is provoked or

*invited* by an opponent's argument, is not objectionable when it is directed to the subject matter introduced by the opponent, even though without such provocation, it might have been improper

The Procedure for Requesting Findings and Conclusions What steps must the party who desires initial findings and conclusions follow? Tex. R. Civ. P. 296. Requests for Findings of Facts and Conclusions of Law. In any case tried in the district or county court without a jury, any party may request the court to state in writing its findings of fact and conclusions of law. Such request shall be entitled "*Request for Findings of Fact and Conclusions of Law*" and shall be filed within ....

*twenty days after judgment is signed* with the clerk of the court, who shall immediately call such request to the attention of the judge who tried the case. The party making the request shall serve it on all other parties in accordance with Rule 21a (must serve on all other parties via email). NOTICE: You don't have to ask for specific findings you want, just that you want findings of fact and conclusions of law.

Dorsaneo & Johnson, Texas Civil Trial Guide: Procedures for Introducing Evidence

*§30.03 Relationship to Concept of Relevancy* Before any tangible object may be admitted into evidence, the party seeking to introduce the object must make a preliminary showing that the object is relevant If relevance of evidence depends upon the fulfillment of a condition of fact, the trial court may admit the evidence upon, or subject to, the introduction of other evidence When the evidence is a writing, must show it is authentic - that it is what the proponent claims it is *§30.01 Authentication Defined* Proponent of evidence has the BOP of its authenticity. Court must find there is sufficient evidence to sustain a finding of the existence of authenticating facts. Authentication alone does not ensure a writing will be admitted; must also be relevant and not inadmissible Since writings are out of court statements, they must fall into hearsay exception Trier of fact that find writing inauthentic after admission into evidence *§40.55[2][b] Rationale and Overview of the [Business Records] Exception* One of the most important hearsay exceptions Gives organizations a way to prove their regular activities Reliability of the record is provided by the business incentive to record accurate data. The record maker must have first hand knowledge of the info supplied. Need to show the record was kept as a regular part of the business §40.55[5] TRIAL EXAM—Foundation for Business Record P.214 gives script for entering Business Record into evidence.

Statutory Restrictions on Expert Testimony The Texas Legislature has adopted statutory requirements for the qualifications of expert witnesses proffering affidavits as to:

- the standard of care in health care liability claims, and, - the standard of care in malpractice actions against professional engineers, surveyors, and architects. Dramatically reduced malpractice cases in these areas. In both of these, there is a 10 year statute of repose.

Improper Jury Arguments

-Appeals to Passion and Prejudice -An argument to the jury to answer questions based on race, religion, and national original is an improper appeal to prejudice. -An appeal to ethnic solidarity is improper as well.

Nature and Use of the Motion in Limine

-Can be written or oral (unless local rule to the contrary) -There is no statutory basis in TRCP or Rules of Evidence for MIL; arise from the common law. -Timing: May be made pre-trial or during trial, but generally make MIL as a pretrial matter; you don't want it mentioned in voir dire. -If trial court has entered a pre-trial or scheduling order, the MIL must be filed in compliance with that date. -*A court ruling on a MIL is usually NOT a final ruling on admissibility of the evidence; therefore it does not preserve anything for appellate review* -MIL may be anytime you believe there are legal grounds to keep irrelevant and prejudicial info away from the jury unless and until the court authorizes it's presentation before the jury EX: evidence you didn't disclose in discovery is generally not admissible at trial; opposing counsel should file a MIL to keep out. -But again MIL is NOT an evidentiary ruling, it is a gag order. Just says, "don't mention this until the court decides whether the jury can hear it"

Contents of Appellant's Brief An appellant brief must perform several *functions:*

-Define the nature of the dispute; -Present the relevant factual background; -Present the relevant law; -Direct the court to the portions of the records that are important to consider appellate complaints; -Define the issues for oral argument; and -Advise the court as to the desired relief and the disposition of the case.

Pope recommendations for oral arguments

-Don't make a mystery of your case. Tell up front the basics. Civil/criminal, trial or not, jury or not, which points you are arguing out of brief (don't have time to argue all of them). Pick your longest/strongest. Be open to questions as opportunities to further convince judge. -Often judges ask hypo because they are wondering how the law will affect a broad array of cases. Try to answer -Minimize the fact presentation. The purpose of appeals/TXSC is to correct errors of law, they aren't focused on facts (that's for the jury). -Present your case with some kind of order (chronological). -You can use summaries of evidence; might be complicated, lots of parties, etc. Breaking it down visually for judges can be very helpful. -Be clear about who the party is. Don't go from appellant to P to respondent to Mr. Smith, etc. Be candid about unfavorable evidence/precedent. "While it is true that....." -Don't just read your brief. Practice and be conversational.

Factors to determine whether it is frivolous:

-Failure to present a complete record. -It looks like you are just bringing for harassment or delay -The raising of certain issues for a first time on appeal. -Chance of having fundamental error is less than 1% -The failure to file a response to a cross-point requesting sanctions. -The filing of an inadequate appellate brief.

Once it is determined reversal is required, should the court remand (full or partial) or render? Rendition or Remand? *Remand* - most cases

-Generally proper with factual sufficiency arguments, erroneous rulings on the admission or exclusion of evidence, etc. -Because we need to go back to the factfinder. Appeals court unfind facts, they don't find facts. -It is improper to remand only for damages proceedings unless damages were liquidated. Why? The jury has to hear liability in order to determine the appropriateness of damages, particularly in tort cases where punitive are an option. Have to know what happened to know if rises to damages (and punitives) Even when rendition would be proper, the court may remand in the interest of justice, for example, when the case has not been fully developed or the court has declared new law. Don't see a lot of that, but it happens.

The appellant's brief should include the following sections:

-Identification of Parties and Counsel -Statement Regarding Oral Argument -Table of Contents and Index of Authorities -Statement of the Case - should be short and give the bare basics. Like a good opening paragraph in an opinion that gives overview. -Statement of Facts -Statement of Issues or Points of Error -Summary of Argument -Legal Argument and Authorities -Prayer for Relief -Appendix

Ways to waive jury trial

-If a party does not demand a jury trial and pay the jury fee, the party in effect waives the right to a jury trial by doing nothing; though the other party may demand the jury trial. -The right to the jury trial is also waived if the party making the demand does not appear at trial. -Similarly, a party who has not paid a jury fee and demanded a jury trial, but who is relying on the jury trial demand of another party, waives any right he might have to trial by jury by failure to appear at trial.

Benefits of Filing a MIL Order

-Keeping evidence out -Making the other party look like the secretive one, having to quietly approach the bench, get the jury excluded, etc. -Educating the court on why it's admissible or not; -get a sense of "which way the wind is blowing" - --If the court denies your MIL on a really bad fact, you might want to reconsider your settlement position --If you get the MIL granted, you can tell the court is leaning toward holding the evidence inadmissible. Court can always rule differently during trial. Never have to make a MIL, purely strategic.

Legal Sufficiency - "no evidence" or "less than a scintilla of proof" to support a finding; OR the evidence is conclusive against the finding. On either extreme of the quantum of proof If you have a legal sufficiency challenge, you can assert it in a variety of ways, including

-Motion for directed verdict (during the trial) -JNOV (after the verdict) On both of the them you're saying either as a matter of law my opponent can't recover because they haven't put on legally sufficient evidence, Or as a matter of law I should recover because I established conclusively all grounds of recovery Can also assert that can't recover as a matter of law on that legal ground EX: DTPA and you're not a consumer, which is a required element of recovery. Same legal sufficiency standard is used for JNOV, directed verdict, and summary judgment: as a matter of law this should be a judgment; there's nothing to go to the factfinder. Also can be partial: EX: as a matter of law we proved up the contract, but go to the jury on damages

Motions for New Trial Requiring Evidence Presentment Before TCT

-New trial motions based on jury misconduct, -newly discovered evidence and -on equitable grounds (i.e., "Craddock" motions) must be supported by evidence. *Why? When is a party likely to learn of these grounds?* -These complaints are not preserved unless they are presented to the trial court for a ruling and are ruled on "either expressly or implicitly" or unless the trial judge refuses to rule "and the complaining party objected to the refusal." TRAP 33 Have to have a hearing because you have to prove up the factual basis for the MNT.

Other Improper Arguments

-Personal criticism/attack of opposing counsel in jury argument is improper. Exception: If there is evidence to support an inference of counsel's misconduct, then it will be permissible under this special circumstance.

The Decision to Appeal - REALLY IMPORTANT - LIKELY EXAM QUESTION!!!! The decision to appeal involves analysis of many factors:

-Probable appellate outcome; -Costs and delay; -Familiarity with trial court proceedings; ----Sometimes you come in as the appellate lawyer in the case (weren't the trial lawyer). If it's a case of significant exposure, most trial lawyer will bring in appellate counsel no later than the charge conference. ----Want to make sure as a trial lawyer that you preserve complaints you think might have traction on appeal. Don't have to object to everything. It's not malpractice when a reasonable attorney wouldn't. -Identifying trial court errors; -Determining whether preservation of error has been properly made; -Assessing whether the error is likely to be harmless or harmful supporting a reversal of the trial court's judgment; -Standard of review applicable to assigned error; -Generally costs are taxed against the unsuccessful party, including cost of appellate record, unless good cause is shown to tax the costs differently.

Improper Questions in VD

-Questions about juror's conviction of felony or misdemeanor indictment for theft or indictment for the same -------->COURT can ask, not counsel -Bringing inadmissible evidence to jury's attention -Comments on the personal lives or families of the parties or their attorneys -Attempt to foster prejudice or sympathy against a party -Attempt to get jury to commit to a result --Attempts to preview a juror's likely vote by asking how jurors will respond to particular pieces of relevant evidence

Rule 10 sets forth the procedure for withdrawal.

-Requires counsel to file a motion to withdraw -State whether or not there's substituting counsel coming in. -If so, identify who it is and that the client consents. -If there's no substitute counsel that you know of, then you have to take additional steps: --Advised client that we seek to withdraw --Give notice of the hearing to withdraw, and all pending hearings and deadlines

The Equitable Bill of Review

-Statutory right to review up until 4 years after judgment is signed, but EXTREMELY narrow and difficult grounds to get. -You win a new trial; -You go back to the very trial court that rendered judgment and submit bill of review. -3 types (below) A bill of review is an independent equitable action that challenges the validity of a judgment that is no longer appealable. Courts have long recognized the importance of the finality of judgments. As a result, the grounds for setting aside an otherwise final judgment are limited. The bill of review complainant is required to file an adequate petition and then to present a meritorious prima facie defense at a pretrial hearing. Only upon satisfaction of both requirements will the court grant a new trial. Otherwise, the court will automatically dismiss the case without motion or request from either party Rule 329b(f) of the Texas Rules of Civil Procedure has been interpreted to mean that once the time for filing a motion for new trial has expired, and relief may not be obtained by appeal, a proceeding in the nature of a bill of review is the exclusive method for vacating a judgment rendered in a case in which the court had jurisdictional power to render. The Bill of Review must be filed as a new and independent suit in the same court that rendered the judgment under attack. A bill of review proceeding culminates in a new judgment that either denies the relief sought or sets aside the former judgment while substituting a new and correct one.

Appellee's Brief Contents Continued:

-The list of parties and counsel is not required (unless necessary to correct appellant's list) -Need not contain a statement of the case, issues, or facts, unless appellee is dissatisfied with appellant's brief. -Need not contain any item already included in appellant's appendix.

In Keller, the Court attempts to identify categories of contrary evidence that cannot be disregarded:

-evidence that shows that a witness is not competent to give lay or opinion testimony, -judicial admissions and opposing inferences when the totality of the circumstantial evidence is meager. -Appellate courts also cannot disregard evidence that shows that a W is incompetent. So again, in a legal sufficiency review, you are looking at evidence favorable to the verdict, ignoring contrary evidence unless it's one of these things we can't ignore *Reviewing courts cannot ignore contrary undisputed evidence that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted (but wasn't)."* Ask yourself as an appellate judge: What do I look at to decide whether there is legally competent evidence? Generally, you only look to evidence that is favorable to the verdict to decide if there's any legally competent evidence. BUT, there's some contrary evidence that can't be ignored (is what Keller is saying). Exceptions to the scope of no evidence review. NOT TESTING ON THIS

This is something else the client will want to know: can they make it to TXSC? Chances are about

1 in 10 that the TXSC will take your court from the appellate court

Evidence Standards The four evidence standards that are used when the complaint is based on sufficiency of the evidence are as follows:

1) "No evidence"; (legal sufficiency complaint - shouldn't go to jury) -Less than a scintilla; AKA "no competent evidence" -Applies to: MIV & JNOV 2) As a matter of law (conclusive evidence); (legal sufficiency complaint - shouldn't go to jury) -Applies to: MIV & JNOV 3) Insufficient evidence; and (factual sufficiency complaint) -MNT 4) Against the great weight and preponderance of the evidence. (factual sufficiency complaint) -MNT

Qualifications to serve on jury: (7)

1) 18 years or older 2) Be a citizen of the state and county 3) Qualified to vote 4) Be of sound mind and good moral character 5) Not have been convicted of misdemeanor theft or any felony and not under indictment or legal accusation for the same *6) Not have served as a juror* for six or more days during the preceding six months in a DCt, or the preceding 3 months in a county court, unless the county is so sparsely populated as to make the requirement seriously inconvenient. *7) Be able to read and write* (doesn't say what language), unless the requisite number of jurors able to read and write cannot be found in the county. Requirement will be waived when the fact of a juror's illiteracy is not ascertained during voir dire or if no challenge for cause is asserted.

Appellate Rule 26 provides two timetables for perfecting ordinary appeals (as opposed to interlocutory/accelerated appeal) from a final judgment:

1) A 30-day timetable for filing a notice of appeal after the judgment is signed, unless: 2) A 90-day timetable for filing a notice of appeal after the judgment is signed if "any party timely files: (1) a motion for new trial; (2) a motion to modify the judgment; (3) a motion to reinstate a case that was dismissed for want of prosecution under Civil Procedure Rule 165a; or (4) a request for findings of fact and conclusions of law, if such a request is proper."

Even if the finality issue is not complicated by the existence of a series of separate orders, determining whether a particular judgment is final or interlocutory still may be a difficult matter. Generally, whether an order is meant to be a final judgment disposing of all claims and issues in the case is determined by the trial court's intent. Must look at the language of the degree and the record as a whole to determine the trial court's intent. But the trial court's intent is not always clear and sometimes the trial court overlooks claims. Two possible situations where claims may be overlooked:

1) A judgment rendered after a conventional trial on the merits, and 2) A summary judgment that should have been only partial because of the issues presented in the summary judgment pleadings, but that appears on its face to dispose of all claims and issues in the case, i.e. issues not presented in the summary judgment pleadings.

What can be properly argued to the jury in closing arguments?

1) Admitted evidence ("the evidence shows...") 2) Inferences from admitted evidence 3) Matters of common knowledge, even if not in evidence --->Hyperbole, poetry, literary devices 4) Paraphrase the court's charge, and suggest how they should answer. (But do NOT tell them the legal effect of their answers.) --->EX: POE means more likely than not, etc.

CHAPTER 11:APPELLATE PROCEEDINGS IN THE TEXAS SUPREME COURT Texas Supreme Court Jurisdiction 3 Avenues of review to the Texas Supreme Court:

1) Appeal from Texas Courts of Appeals by filing a *petition for review* with the Texas Supreme Court. 2) *Certified questions* of law from United States courts. ---Under the Eric Doctrine, when diversity jx is the basis for federal district court action, the federal procedure applies, but state substantive law applies in the state in which the federal court is sitting (unless the parties have a contrary choice of law provision). ---If the TXSC hasn't addressed the question of law, it can be certified by federal court. Appeal within appeal. Parties then brief for the TXSC. They may or may not answer. Once they answer it continues in the federal court. 3) *Direct appeal from the trial court to Texas Supreme Court.* ---Some cases when the TCT enters injunctive relief based on unconstitutionality of TX statute, leapfrog over ACt to TXSC. EX: Robin Hood funding of school districts. ---Rare

Accelerated Appeals

1) Appeals from interlocutory orders, when allowed by law (Ch 9 - long list), 2) appeals in quo warranto proceedings, and 3) appeals of parental termination judgments are accelerated.

Two time periods, both starting with the day Final judgment signed: Day 0

1) Appellate timetable to file notice of appeal and thus invoke appellate court's jx --How much time you have to file appeal or lose right to appeal 2) Plenary Power and Post-Judgment Motions --How much time the TCT has to change its judgment

Two constitutional bases for upholding the right to trial by jury:

1) Bill of Rights in TXC - "the right to a trial by jury shall remain inviolate" - means that if you have right to a trial by jury in England at common law, you will have that right in TX. 2) Judicial Article - right to trial by jury in the "trial of all causes" whether they are law or equity. --broadens from the BOR to include equity

Loss of Plenary Power General Rule: Once the trial court loses plenary power, it lacks the power to change its judgment, except: (2)

1) By judgment nunc pro tunc to correct clerical errors, 2) By equitable bill of review timely filed and grounds established. Note: if an appellate court's jurisdiction is timely invoked, it may change the judgment. Note: If the judgment is void (ex. No SMJ, or Entered after t.ct. lost plenary power), it can be collaterally attacked any time as it is a void judgment. Note: Notwithstanding the loss of plenary power, a trial court may enforce its judgments. EX: writ of execution Rule 621a - allows for discovery after judgment regarding judgment debtor's assets.

There are three types of challenges to jurors:

1) Challenges to the array (manner in which all jurors were summoned was improper; violates statutory requirements) -Uncommon because the method of selection of jurors by jury wheel or electronic means tends to assure random selection 2) Challenges for cause (prospective juror not qualified) 3) Peremptory challenges (don't need to state reason unless Batson issue)

Preserving a Legal Sufficiency Complaint To preserve a legal sufficiency complaint in a jury trial, assert in one of the following ways:

1) Charge Objection at charge conference EX: "Your honor, we object to the charge, because P has not provided any evidence of the element of X." If you don't complain at the charge conference can do afterwards at a JNOV 2) M for Instructed Verdict 3) Motion JNOV 4) Motion to Disregard a Specific Jury Finding, or When you like part, but not all of the jury's finding 5) Motion for New Trial (and get a ruling on the record) -Technically possible according to the caselaw, but this is a horrible way to preserve a legal sufficiency complaint (use for factual sufficiency, NOT legal sufficiency) -Carlson - borders on malpractice. Because the only thing you win is a brand new trial. If you assert one of the other four, you can get rendition of a judgment in your favor.

Record - responsibility of the appealing party. Typically includes:

1) Clerk's Record 2) Reporter's Record

Conflicting findings arise when two questions pertaining to the same issue are answered differently. Two steps:

1) Court must determine if the findings pertain to the *same material fact?* 2) If yes, determine if they *can be reconciled?*

Grounds Upon Which MNT Can Be Based - not exclusive Basically any error where you think a new trial is necessary Errors on the record at the trial or pretrial stage, such as:

1) Erroneous admission or exclusion of evidence, 2) Improperly submitted jury instructions, 3) Misconduct of the jury or the officer in charge of them (bailiff), 4) Newly discovered evidence, 5) FACTUAL SUFFICIENCY - A verdict based on factually insufficient evidence (THIS IS THE BIG ONE) or a finding that is against the great weight and preponderance of the evidence, 6) Improper jury argument, or 7) A culmination of circumstances denying a fair trial ("cumulative error"). ---->hard to argue to TCT there's been so many mistakes you deserve a new trial [these are just examples, there are other grounds for a new trial]

Appellate Prerequisites and Preliminary Considerations Trial Court Complaint: Preservation of the Right to Complain. TRAP 33 To obtain a reversal:

1) Error by the lower court 2) Timely and proper preservation of error 3) Harmful Error Harm = The error probably resulted in improper judgment, or prevented proper presentation of the case on appeal.

Reversible Error - Two Types What is the standard used by the appellate court to determine reversible error? Texas Rules of Appellate Procedure 44.1 and 61.1.

1) Error probably caused the rendition of an improper judgment, or 2) Error probably prevents the appellant from being able to properly present his case on appeal. (Casteel) Crown Life - can't tell if error caused harm, so court will PRESUME HARM Very rare for the court to presume harm. Usually have to show some causal effect of the trial court's erroneous holding causing harm. But here, you can't, so court presumes harm.

Preservation of Error What should counsel do (and when) to preserve the complaint of juror misconduct? TRCP 327

1) File a written motion for new trial stating the grounds supported by affidavit proof of jury misconduct 2) File within 30 days of the date the final judgment is signed, and, 3) Present evidence of the misconduct and obtain a written ruling no later than 75 days after the date the judgment is signed (or the motion is overruled by operation of law)

To obtain a reversal of a judgment based upon an error in the trial court an appellant has a three-pronged burden.

1) First, he must show there was error in fact, and 2) secondly, that such error was properly preserved 3) third, that such error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. This question is to be determined as a matter of law in the light of the record as a whole. The true test of the degree of prejudice flowing from an improper argument is whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, could not eliminate the probability that it resulted in an improper verdict.

Types of Charges - generally two kinds

1) General (not used in Texas really) 2) special charge

Admonitory Instructions to Jury - (warning instructions) Tex. R. Civ. P. 226a. Admonitory Instructions to Jury Panel and Petite Jury (once selected) The trial court must give these instructions. These instructions are given at different times:

1) Given to the jury panel before voir dire (venire members) 2) Given to the jurors who are chosen for trial (petite jury) 3) Given to jurors at deliberation (part of the Charge

The timetables are jurisdictional, but there are 2 ways the starting date can be modified:

1) If a judgment is modified "in any respect" while the trial court retains plenary power (resets day 0); or 2) If a party (or their counsel) affected by the judgment has not, within 20 days after the judgment or order was signed, received notice or acquired actual knowledge of the judgment's signing.

Jury Charge To obtain submission of grounds in the jury charge, a party must plead those grounds and put on evidence on every element of those grounds to raise a fact issue for the jury to decide. Components of the Charge: (4)

1) Instructions to the jury about deliberations 2) Instructions to the jury about the law 3) Definitions (of terms in charge with a distinct legal meaning) 4) Jury questions (on grounds raised by pleadings and proof)

Characteristics of Good Opening Statements A good statement should have some or all of the following qualities:

1) It should be direct, positive, and confident 2) It should avoid overpromising. The most effective arguments of the opposition may be in response to a promise in opening that was not kept. ----"Remember when P counsel promised you this? ---- ----What happened to that?" 3) It should not use technical legal terms without translating them into ordinary language. --Simplify. Ask the juror to "do right." 4) It should prepare the jury to receive the evidence in a way that makes it easy to associate it with the claim or defense being advanced. 5) It should anticipate, and "steal the thunder" of, the opposition's rebuttal. 6) It should make the jury curious about the case and willing to identify with the position being advanced.

Briefing Legal/Factual Sufficiency Complaints on Appeal

1) Make sure you preserved at TCT to be able to raise on appeal ---bench trial you don't have to do anything, you can raise for the first time on appeal; --jury trial - see below for how to preserve *2) legal sufficiency* - go through the entire record, write down all the proof for and against the verdict and make record references, and then you would put together in your brief an analysis of the evidence in support of the verdict and why the verdict should/should not be sustained. -Sounds really complicated, but it's really pretty basic: here's all the evidence, what do you think? Is the jury guessing? Is it conclusive? Is it admissible? Is it a basis to recover in law? *2) factual sufficiency* - the same but you go through ALL of the evidence, favorable and unfavorable to the verdict, and put it all in your brief and argue why the weight of the evidence does or doesn't comport with the fact finding Basically: here's all the evidence, what do you think? What's the weight of the evidence? A court of appeals must detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding

Mandamus Proceedings The Texas Supreme Court and the Texas Courts of Appeals share mandamus jurisdiction. Usually you first go to court of appeals; very rare to go to TXSC first for mandamus. When can appeals courts/TXSC use mandamus? (3)

1) Mandamus to protect court of appeals' jurisdiction; 2) To correct a clear abuse of discretion when there is no adequate remedy by an ordinary appeal; or, -----Mandamus is an extraordinary remedy; the standard for abuse of discretion is higher. 3) To compel the performance of a ministerial duty. (order them to do what they have to do ministerially)

New Trial for Jury Misconduct Assuming the improper jury misconduct is sufficiently serious and the court cannot cure the error by instruction, what must a movant prove to obtain a new trial based on jury misconduct?TRCP 327 (a) In order to prevail based on a new trial based on jury misconduct, must show 3 things:

1) Misconduct, 2) that it is material, and 3) probably caused injury

4 post-verdict motions

1) Motion for Instructed Verdict ("Motion for Directed Verdict" or "Motion for Judgment as a Matter of Law") 2) Motion for Judgment Notwithstanding the Verdict (J NOV) or Motion to Disregard A Specific Jury Finding 3) Motion for New Trial (MNT) 4) Motion for Judgment on the Verdict

Two "EXTENDING MOTIONS" that extend the TCT's plenary power and the timetable to "perfect an appeal" by filing a notice of appeal with the appeals court:

1) Motion for New Trial and 2) Motion to Modify/Reform the Judgment

Exclusion of Evidence It is counsel's responsibility to object to the admissibility of improper evidence and upon failing to do so the error is waived unless the evidence is wholly incompetent There are two other legal tools which an attorney often employs prior to trial

1) Motion in Limine - If your MIL fails, you must object to the evidence when it is presented at trial or your waive objections 2) VD exam

The following considerations apply to the timely written motion for new trial based upon jury misconduct:

1) Must be supported by Affidavit 2) Affidavits obtain hearing but are Not evidence 3) Sufficiency of Affidavits (Personal knowledge, set forth facts that would be admissible in evidence) 4) Hearing to Present Evidence of Misconduct 5) Judge's Decision on Fact Issues 6) Written Findings Not Required 7) TCT should grant MNT if they find that Probable Harm Results From Misconduct

So, when starting an appeal:

1) Read the record, look at what was filed, the charge, what the evidence was, and identify all the potential errors, 2) Then note whether the error was properly preserved (if not, unlikely to be able to assert on appeal) 3) Then, note the standard of review for each error. Abuse of discretion? Sufficiency? De novo? -That tells you a lot about what complaints you want to include. Good appellate practitioners select the strongest complaints and piece together to an attractive story. -Don't want to throw everything in there, will annoy the appellate court.

Review of appellate process to get reversal:

1) TCT error 2) preserved error 3) reversible or harmless error Reversible - error that's been preserved and probably resulted in an improper judgment OR prevents appellant from properly presenting an appeal (EX: broad form jury question that has both valid and invalid ground, jury might have decided on invalid ground, not in record (internal jury deliberations are not admissible); so that's an error that prevents appeal

To decide whether proffered testimony satisfies the standards of "relevance" (tends to prove or disprove a matter at issue) and "reliability" before ruling it admissible, trial courts goes through the Daubert/Robinson reliability factors:

1) The extent to which the theory has been or can be tested; 2) The extent to which the technique relies on the subjective interpretation of the expert; 3) Whether the theory has been subjected to peer review and/or publication; 4) The technique's potential rate of error; 5) Whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and, 6) The nonjudicial uses that have been made of the theory or technique (or all you making this up for this case) NOTE: Not all factors are applicable in all cases. There have been a lot of cases

Deemed Finding of an Omitted Element Rule 279 deals with two different situations: Scenario 1

1) The jury questions omit an entire ground of recovery; no element of the entire ground goes into the jury charge. Without objection or request, there's generally going to be waiver of the ground. Even though both sides want to put evidence on the ground. Fairly uncommon.

Trial Court Discretion To Reopen Evidence With respect to reopening the evidence under Civil Procedure Rule 270, the Rule makes clear the breadth of discretion accorded the trial judge considering:

1) The length of time required to put on the proof, 2) The importance of testimony, and 3) The diligence of the offeror. It's the diligence that gets you. Why didn't you put this on before? Was it just discovered? Should you have discovered it before? Almost all the cases dealing with the a complaint that the trial court erred in denying a motion to reopen agree with the trial court on the grounds of a lack of diligence. As a practical matter, you have to show non-access to the new evidence.

Scope of "Conclusive Evidence" Review The scope of review for an "as a matter of law" challenge is the same as that required for a "no evidence" challenge. There is a second step involved in the process, however.

1) The record must be examined for evidence that supports the [fact finder's] finding, while ignoring all evidence to the contrary. 2) If there is no evidence to support the fact finder's answer, then the entire record must be examined to see if the contrary position is established as a matter of law. (conclusive proof) Carlson: conclusive evidence is pretty rare because good litigators can create a fact issue through cross, or putting on their own evidence that raises a question of fact for the jury.

Introduction to the Appellate Process Perfection of Appeal requires:

1) Timely filing Notice of Appeal (Jurisdictional) 2) Docketing Statement 3) Record (Clerk's Record & Reporter's Record) 4. Affidavit of Indigence (if needed)

Statutes require that the source of names in the jury wheel must be:

1) Voter registration lists; and 2) Lists showing the citizens of the country who hold a valid Texas Driver's License and the citizens of the county, other than persons who are disqualified from jury service, who hold a valid personal identification card or a certificate issued by the Department of public Safety. (NOTE: Failure to register to vote does not disqualify person from jury service). Convicted felons and persons listed on a register of persons exempt from jury service may not be placed in the jury wheel. [used to only be voter registration lists, but people worried it would discourage registering to vote because don't want to be on jury, so expanded. Failure to register to vote now does not disqualify]

*Exam question!!!! p469* - What policy reasons support precluding jury deliberations from evidence?

1) Want jurors to candidly discuss case 2) Raise unpopular viewpoints without fear 3) Protect jurors from fear of public scrutiny, post-trial harassment 4) Prevent jury tampering 5) Don't want disgruntled juror whose views didn't prevail to cause trouble trying to vindicate their opinion 6) Finality

A juror may testify: (2)

1) Whether any outside influence was improperly brought to bear upon any juror; or 2) To rebut a claim that the juror was not qualified to serve.

Am. Petrofina, Inc. v. PPG Indus., Inc., 679 S.W.2d 740 (Tex. App.—Fort Worth 1984, writ dism'd). What were the two challenged jury arguments in Am. Petrofina, Inc.? 1) When PPG's counsel in closing argument paralleled this case to a criminal proceeding. Argued that it was outside the scope of the evidence and resulted in an improper and excessive jury award. "Down the hall they're trying some fellow for stealing $43 to send him to the penitentiary. We can't send Petrofina, the corporation to Huntsville. But I don't know of anyone in prison in Huntsville for stealing as much as Petrofina did here, $3M...." 2) Also, an argument that the opposing counsel had been "talking down" to the jury and the jury should be offended. Was it improper?

1) YES. Case is a civil action, not a criminal prosecution, and any analogy to criminal conduct was improper. 2) The "other lawyer is talking down to you" language in the closing argument is also improper because the court will not condone attacks upon the professional ethics and integrity of opposing counsel Did the appellate court order reversal? Why or why not? YES.

NOTE 7: Same legal sufficiency standards apply in MSJ as in directed verdict/JNOV. MSJ - is a pretrial ruling and doesn't preserve a legal sufficiency complaint through trial. The way you preserve a legal sufficiency complaint is through a

1) a motion for directed verdict on that ground (no evidence/conclusive evidence), 2) object to that ground going into the charge (no evidence/conclusive evidence), 3) motion for JNOV, OR 4) a motion to disregard a specific jury finding.

Immaterial Matters A jury's answer to an immaterial matter may be disregarded. Rationale: The trial court is not bound by jury findings that are immaterial, this includes (2)

1) a question of law that should not have gone to jury in the first place; or 2) when the jury answer can have no legal effect Not objecting when as a matter of law the inquiry should not go the jury (under the law Plaintiff can't recover attorney's fees under her statutory claim) and immaterial matters at the charge phase is NOT a waiver. Things that should not have gone to the jury in the first place at all are still preserved when brought up at the post-verdict phase EX: whether a party owes a fiduciary duty is a matter of law, so any jury finding should be disregarded.

Arbitrary Conduct Prohibited The admonitory instructions given in the jury charge prohibit

1) a quotient verdict (adding up damage amounts and dividing by number of jurors) and 2) answer trading- - "I'll answer #4 yes if you asnwer #3 yes." Substitutes arbitrarily ascertained figures for those which would result from intelligent deliberation 10/12 jurors must agree on the damages, unless punitive damages, where you need 12/12. The use of an overall figure as a mere guideline for calculating damages is not reversible error, however.

Notice of Setting for Trial TRCP 245: all parties are entitled to not less than 45 days' notice of an initial trial setting. If the case is not reached or reset, the parties must be afford ...

reasonable notice of the subsequent hearing. If the party requested the setting themselves they obviously have notice. If the parties agree to a trial setting, they have notice. So it's only when one party requests the trial setting, the other side is entitled to 45 days notice. Or, if the court sets the trial setting, all parties are entitled to 45 days notice. This is a matter of due process. This notice is mandatory, but it can be waived by the failure of counsel to object to the court's failure to give at least 45 days notice of the trial setting.

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001). Lehmann addresses how to determine if a summary judgment or other order that is filed without a conventional trial on the merits is a final judgment for purposes of appeal. FACTS: Two consolidated cases, both were dismissed by courts of appeals as having been untimely perfected for appeal. Both had Mother Hubbard clause in summary judgments. *Is the summary judgment or other order that is filed without a trial on the merits a final judgment for purposes of appeal?* YES, if it: (2)

1) actually disposes of all claims and parties before the court, regardless of its language, or 2) states with unmistakable clarity that it is a final judgment as to all claims and parties. "A judgment that finally disposes of all remaining parties and claims, based on the record in the case is final, regardless of its language.....The language of an order cannot make it interlocutory when, in fact, on the record, it is a final disposition of the case. But the language of an order or judgment can make it final, even though it should have been interlocutory, if that language expressly disposes of all claims and all parties. It is not enough, of course, that the order or judgment merely use the word 'final'. The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself." "If a defendant moves for summary judgment on only one of four claims asserted by the plaintiff, but the trial court renders judgment that the plaintiff take nothing on all claims asserted, the judgment is final;-erroneous, but final. A judgment that grants more relief than a party is entitled to is subject to reversal, but it is not, for that reason alone, interlocutory." So judgment if final for purposes of appeal so if no appeal is timely perfected, the right to appeal will be lost. "Nothing in the order in Lehmann indicates that it is a final judgment, and it did not dispose of all pending claims and parties. The order in Harris states that plaintiffs take nothing as to 'one of the defendants,' but that language does not suggest that all of the plaintiffs' claims were denied." Held: Notwithstanding the inclusion of a mother hubbard clause, neither order constitutes a final judgment.

Order of BENCH Trial Proceedings

1) an opening statement in which both legal and factual matters are set forth, 2) invocation of the rule, 3) evidence presentation, and 4) oral or written motions for judgment. When the evidence is concluded, the trial judge may then announce his or her decision or take the case under advisement. AFTER judgment, parties can ask for findings of fact and conclusions of law.

Under Tex. R. Evid. 703, the opinion testimony of an expert may be based on

1) any matter personally perceived by or known to the expert, including information acquired through the expert's special knowledge, skill, experience, training, and education; and 2) facts or data "made known" to the expert at or before the hearing. (Even hearsay!) PLUS: An experts' opinions may be based on facts or data that are not admissible in evidence if such facts or data are of a type reasonably relied on by experts in the particular field in forming opinions or inferences on the subject. *Even hearsay* - when it's the type of info that would reasonably would be relied on by experts the field.

Bases for DWOP When can the trial court dismiss for DWOP? (3)

1) any time P (or any party seeking affirmative relief - D on counterclaim) fails to appear at a hearing or trial they had notice of, OR 2) a party seeking affirmative relief fails to set the case for trial within time standards set by TXSC, OR ---civil jury trials: 18 months from appearance date (D answer date); ---bench trials: 12 months from answer date ---contested family law cases: 6 months from appearance date ---uncontested family law cases: 3 months from appearance date 3) it is within the court's inherent power (outside the rules of TRCP) to dismiss for lack of due diligence when a party seeking affirmative relief is not diligently prosecuting their case. ----EX: if a P files and then does nothing on the case for a year. The court can set on the DWOP docket.

In mandamus actions greater certainty of the pleadings and the facts to be established by modes appropriate in appellate courts are required. These, generally, are by

1) authenticated copies of pertinent papers from the clerks of the district or county courts, 2) certificates of court officials including the judge, and 3) by affidavits in verification of the petition, of material facts made a part of the petition, and of the exhibits desired to be considered as evidence.

How do you make a Batson challenge? 3-Step Process to Urging Batson Challenges (basic steps) No rule of procedure for Batson; have to look at caselaw.

1) challenging party makes a prima facie case that opposing counsel engaged in improper discrimination 2) burden then shifts to other party to give a facially neutral reason for strike 3) burden shifts back to original complaining party to establish that the true reason was discriminatory, and that the proffered reason is pretextual After the 3-step process, the court will decide the result. The trial court must make the factual determination. Ultimately a factual challenge.

Three steps in successful appeal (usually)

1) convincing appellate court that the lower court is wrong 2) did you preserve that complaint, so they can correct error 3) did that error probably result in an improper judgment. In other words was it harmful or harmless?

What must an attorney do to obtain the legislative continuance?

1) create an affidavit that contains a declaration that it is the attorney's intention to participate actively in the preparation or presentation of the case and that the attorney has not taken the case for the purpose of obtaining a continuance under this section. 2) file this affidavit with the court AND with the TXL's ethics commission

NOTE 4: There's two types of improper argument:

1) curable 2) incurable jury argument.

The clear and convincing evidence standard applies to

1) defamation cases, 2) punitive damages awards, 3) cases involving termination of parental rights, and 4) cases involving involuntary commitment of individual to mental hospitals.

Factual sufficiency review of nonfindings In Pool, the TXSC suggested it was difficult to justify why a nonfinding should be reviewable under a great weight and preponderance standard. Two years later however, the Court revisited this dilemma and reaffirmed the actual holding in Pool recognizing the court of appeals' authority to review a jury's failure to find contributory negligence. The TXSC reasoned that it had imposed limitations on the courts of appeals that are more than adequate to assure the right of trial by jury. These limitations include:

1) deferential standards of sufficiency standards of review of jury findings 2) prohibition against rendition of judgment by a court of appeals based on "great weight "or "factual insufficiency" points of error. 3) Pool's holding that courts' of appeal must detail the evidence and its reasons for concluding that the verdict is contrary to the evidence.

Timing and Trial Court's Discretion - TRCP 272 provides that each party must be given a

reasonable time in which to examine the charge and present objections, which must be presented to the TCt in writing or dictated to the court reporter in the presence of the court and opposing counsel before the charge is read to the jury TXSC has held that Rule 272 gives TCts the authority to set a deadline for charge objections that falls before the reading of the charge to the jury.

Direct Examination of Witnesses Why is direct examination harder than cross examination?

1) direct means that you have called this witness and the jury expects you to prove something by it 2) the W is usually not a professional or any good at telling a story in the Q&A format 3) W is often frightened. High pressure situation; especially if W is a V 4) jury does not understand the pressure the witness feels, unless you make them understand it 5) the rules of evidence limit the assistance you can give the W in telling the story. Rules against opinions, leading questions, etc. 6) Many of the decisions that juries have to make are not dependent upon one-dimensional, yes-no issues. 7) jury has trouble following direct. Must start at ground zero and build slowly and carefully. 8) techniques of cross are cheap and easy by comparison. Picture you have built can be tarnished by a single question 9) lawyer lingo will not be understood by a W under pressure, or the jury. Solutions: (more on p220) 1. Ask the witness's name 2) ask a short question, in leading form that shows the W's connection with the case. 3) Establish the W's background. The jury wants to know who the W is 4) take the W to the relevant event 5) pick a logical starting point 6) carry the witness through the story 7) let the W and the jury know when you switch subjects 8) let the jury and the W know when you are asking a purely formal question Such as the foundation for evidence of a business record If the W is not a good storyteller: Use non-leading question formulas Sometimes you should try to ask leading questions (even though not technically allowed) Down to earth language Make the W feel comfortable Prepare the witness Vividness: Show Them the Movie The greatest art in direct is supplying answers to the vague questions regarding "negligence" "reasonableness" etc. Use details of the story that symbolize the tragedy, tec. Make the jury feel they are there.

Davenport v. Scheble, 201 S.W.3d 188 (Tex. App.—Dallas 2006, pet. denied). FACTS: Ex-H is being sued by ex-W for hiding assets. Here: TCT struck D's Answer and rendered default judgment for P ("death penalty" sanctions). Undisputed that before the hearing on motion for disco sanctions, ex-H contacted the court and said he wouldn't make hearing, but wanted to agree to judgment.

1) ex-H brings restricted appeal, arguing error on the face of the record because the TCT could have imposed lesser sanctions to promote disco compliance. COURT: TCT did try lesser sanctions, so that's not valid argument. 2) There is no tort for wrongful disposition of community property, so no basis for punitive damages. COURT: agreed. 3) TCT wrongfully found ex-H was present at court? (3rd element below in restricted appeal) COURT; agreed. The phone call earlier doesn't count as participation in hearing. TCT had his phone number and could have called. So ex-H can bring restricted appeal.

Restricted Appeals A restricted appeal, formerly called an appeal "by writ of error," is restricted to a party who

1) has not participated either in person or through counsel in the hearing that resulted in the judgment and 2) who did not timely file a postjudgment motion or a request for findings of fact and conclusions of law. Tex. R. App. P. 30. Here, we're talking about a default judgment situation usually. Can be others, but usually default judgment.

Statutory Disqualification Grounds Any of these support a challenge for cause. A person may be disqualified to serve as a petit juror in a particular case if he or she:

1) is a witness in the case; 2) is interested, directly or indirectly, in the subject matter of the case; -Usually a pecuniary interest. EX: shareholder of corporate party; employee of party, etc. 3) is related by consanguinity or affinity within the third degree . . . to a party in the case; 4) has a bias or prejudice in favor of or against a party in the case; or 5) has served as a petit juror in a former trial of the same case involving the same questions of fact.

Lehmann TXSC: We no longer believe that a Mother Hubbard clause in an order or in a judgment issued without a full trial can be taken to indicate finality. We therefore hold that in cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial (no full blown trial) is final for purposes of appeal if and only if either (2)

1) it actually disposes of all claims and parties then before the court, regardless of its language, or 2) it states with unmistakable clarity that it is a final judgment as to all claims and all parties. Use the test on anything that is NOT a final judgment after a full-blown trial, such as: Judgment of dismissal on plaintiff's nonsuit; Judgment of dismissal on plea to jurisdiction; Judgment of dismissal on plea in abatement; Judgment of dismissal for want of prosecution; Default Judgment Summary Judgment

Advantages of bench trials

1) jurors don't place as much credence in depositions as judge will 2) don't have to make jury charge 3) more likely to get court to take judicial notice of facts 4) less need for demonstrative evidence than for a jury, so less expensive.

Costs of trial has gone up a lot recently:

1) more discovery; e-disco is expensive 2) Daubert - now experts have to be experts in the field they are testifying in. 3) Presuit expert affidavits requirements: medmal, professional architects other lawsuits, now require presuit expert affidavits. Pushes cost of litigation up front. 4) no evidence MSJ - shifts burden to P. If P can't produce evidence at pretrial stage, summary judgment will be entered. (pre-discovery?) This has led to a lot less trials, made more expensive. Led to talk of the "vanishing jury trials" - stuff like workers' comp used to be in front of juries; now just administrative This led to the development of Expedited Trials. TXL passed ordering the TXSC to make rules to make trials cheaper/faster for AIM $250k or less..

Methods of Setting for Trial How can cases be for trial? Three option

1) party's motion - any party can file a "request for trial setting" 2) court can set a case for trial through its own motion (order of the court) 3) agreement of the parties to a trial setting Lawyers must check the local rules and the individual judge's web page for and "standing orders" and meet any requirements for obtaining or changing a trial setting Different courts have different terms of dockets: two week docket, one month, etc. Whatever they have decided locally. EX: If they have a two week docket, you would then ask for a trial setting in one of those two weeks in whatever month you want, and now you're on the docket. Have to give other side 45 days notice (unless it's an agreed setting). And the court has to give the parties 45 days notice of he initial trial setting if it's done on the court's own motion.

Tactical Impact of Bad Facts. Trial strategists opine that counsel has three options in dealing with facts unfavorable to the client:

1) seek to exclude them through a motion in limine; 2) introduce the bad facts yourself in a manner that ameliorates the unfavorable effect (often in voir dire of jury); or 3) settle the case Strategic motion; don't need to make MIL, but the benefits are substantial.

To warrant a new trial for jury misconduct, the movant must establish (3)

1) that the misconduct occurred, 2) it was material, and 3) probably caused injury. Tex. R. Civ. P. 327 provides that a trial court: may grant a new trial if the erroneous or incorrect answer on voir dire examination, be material, and if it reasonably appears from the evidence both on the hearing of the motion and the trial of the case and from the record as a whole that injury probably resulted to the complaining party.

Who May Issue Subpoenas?

1) the clerk of the court, or 2) any attorney authorized to practice in the state of Texas (and is thus an "officer of the court") 3) if the subpoena is for taking a deposition, any deposition officer authorized in TX

TX Disciplinary Rule of Professional Conduct 1.15 sets forth the situational requirement constituting "good cause" for withdrawal of counsel including (3)

1) the client's insistence on making unwarranted claims or defenses, 2) pursuing an illegal course of conduct or one that is prohibited under the rules of professional conduct or other law, or 3) pursuing an objective that the lawyer considers repugnant, imprudent or with which the lawyer has fundamental disagreement.

Factors that determine whether referencing inadmissible evidence is reversible may include:

1) the good or bad faith of counsel 2) The magnitude of the prejudice 3) the degree of repetition 4) courts efforts to cure the prejudice

Disregarding the Verdict Because a constitutional right to a fair jury trial exists, the judge has a very limited ability to disregard the jury verdict. Under what circumstances, may a trial judge disregard the jury verdict? (3)

1) the jury answer is immaterial 2) when the jury's answer is not supported by legally sufficient evidence, or 3) on a matter of law basis. EX: we don't recognize that COA, so it doesn't matter that the jury answered that question.

Permissive Appeal A trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and 2) an immediate appeal from the order may materially advance the ultimate termination of the litigation; and, 3) The appellate court agrees to the interlocutory appeal.

The Motion for Judgment Notwithstanding the Verdict (*JNOV*), OR to *Disregard Specific Jury Findings* A motion for judgment non obstante veredicto [motion for judgment notwithstanding the verdict] and the judgment rendered pursuant to it, must be predicated on either

1) the presence of conclusive evidence which entitles the moving party to judgment as a matter of law OR 2) on the absence of any probative evidence to support an element that the opposing party must prove in order to prevail, OR 3) as a matter of law not a valid claim under Texas law

Stevens v. Travelers - established a procedure for evaluating supplemental verdict-urging instructions: (3) overall: *Court looks at each statement in the dynamite charge individually, then considers all statements as a whole.*

1) the supplemental charge must be reviewed to determine whether it contains any potentially coercive statements. If it does not, the analysis is finished 2) If the supplemental charge does contain a potentially coercive statement, the court then must determine whether the statement retains its coercive nature when the charge is read as a whole 3) all of the circumstances surrounding rendition of the supplemental charge and its effect must be considered. If the charge as a whole is not coercive, any error is harmless.

Verdict by Portion of Jury Tex. R. Civ. P. 292. The same 10 of 12 (or 5 of 6) jurors must agree on the answers to all material questions. What is material? How do you differentiate material from immaterial? "Issues are only immaterial if (3)

1) their answers can be found elsewhere in the charge, 2) they should not have been asked to begin with, or EX: Questions of law, something that is not an element of the COA 3) if they cannot alter the legal effect of the verdict." (Fleet) ----Often this arises when the jury's answer to another question has made a question immaterial. Ex. D neg, but zero damages. Neg. finding is immaterial. Doesn't matter if D was found negligent or not because the judgment is the same: P takes nothing.

Motion to Strike Once improper evidence has been uttered or admitted, it may become necessary to scoop it back out of the case. Motions to strike may be necessary when:

1) to exclude an answer of a W made before an objection could be made 2) to exclude volunteered statements of the witness 3) to exclude non-responsive answers 4) to exclude prior testimony admitted conditionally upon counsel's promise to connect up the testimony or lay a foundation 5) to exclude testimony which later turns out to be improper such as hearsay, best evidence rule, etc. 6) to exclude testimony of a witness, who by reason of sickness, death, or refusal, fails to submit to cross-examination

Why is necessary to bring the jury back, etc. and follow the Rules 286?

1) to preserve for appeal, get on the record 2) make sure the jury understands.

On appeal, you generally must show:

1) trial court ruling was in error 2) error was preserved (challenged and got a ruling) 3) error was harmful that necessitates reversal. EX: If the TCt is excluding a W that is only going to testify to something that 3 other Ws have already said, chances are that is not harmful/reversible error. Probably didn't result in an improper judgment.

Classic IRDs

1) unavoidable accident - claim that the event was not caused by negligence of any person 2) act of God - event was caused by unforeseeable and uncontrollable act of nature 3) sole proximate cause - event caused completely by negligence of a person other than D 4) sudden emergency - D's conduct was not negligent but excusable response to emergency 5) new and independent cause Prior to 1973, TX courts submitted IRDs to jurors as separate and distinct questions, and sometimes caused jury confusion, leading to conflicting answers and mistrials

Two 150 miles measures here relating to deposition subpoena or subpoena to produce documents:

1) where you can take their deposition or subpoena to produce documents - 150 miles from where that person resides or is served. 2) rule dealing with the subpoena power of the court to have witnesses testify at trial within 150 miles of county of suit

Three Ways to Go Outside the Record -

1)counsel may refer to evidence that is not only not in the record, but is specifically excluded by the rules of evidence because of its prejudicial nature. Referring to evidence that is expressly excluded as inadmissible EX: reference that D had been indicted in a separate federal case held reversible error 2) counsel may refer to evidence that could have been placed in the record in some proper way but was not EX: Shell Oil v. Reinhart, above, in which evidence of the doctor's opinion could have been obtained by calling him as sa witness 3) reference may be an inference from evidence that is in the record, properly or improperly, but the inference is unauthorized, prejudicial, or simply so outlandish as to be unsupported by evidence. EX: Myers case - inference made that the absence of a ticket (criminal) meant the absence of negligence (civil).

request for additional/amended FFCL - party has ____ days after the judge's original FFCL are issued.

10

You only have ____ days from the day the trial court makes original findings to request additional findings.

10 10 days is NOT a lot. Good to tell staff, if any mail comes in that says "findings of fact" - CALL ME. Very short window to deal with.

If it is an accelerated appeal, the appellate record is due within

10 days. Designate and have clerk/court reporter to file. Usually bringing up a single order (EX: parental termination). Typically sparse: one hearing, one ruling, maybe some testimony.

Finality Through Dropped Parties Suppose the court has rendered an interlocutory order disposing of one of two defendants, granting one defendant summary judgment, P take nothing, on 10/1. Plaintiff then takes a nonsuit on its claim against the remaining defendant (D2) on 10/5. The signing of dismissal to D2 occurs on 10/20. When does the case become final and appealable?

10/20. It is NOT the day that the P nonsuits the remaining party, it's the date the court orders dismissal. 10/20 becomes Day 0 for our timetables, the last order that disposes of all parties and claims. If you represent a party seeking nonsuit, make sure you provide the court with an order to that effect; that's what firms up "finality." The day the court signs it becomes "day zero."

Trial court still has plenary power after 30 days after the motion is overruled. So if it day 75 (by of operation of law), then the plenary power of the court extends to day

105

TXC requires that a jury in a DCt must consist of ___ members unless not more than three of them die or become disabled from sitting.

12

If an extending motion is timely filed, the appellate record must be filed within

120 days after the judgment is signed. Lots of extensions are often granted for the record.

There is a motion for rehearing that can be filed by any litigant after the TXSC denies review or the TXSC renders judgment on merits with its opinion. Have ____ days to file.

15 VERY unusual that they are granted. Then you can ask to go to USSCT. Even more rare.

Satisfaction of Procedural Requirements Whether the motion for extension is prepared as a separate instrument in accordance with Appellate Rule 10.5(b) or implied under the holding in Verburgt, the pertinent document must be filed "within

15 days after the deadline for filing the notice of appeal." See Tex. R. App. P. 26.3. "Due date + 15" (if you can reasonably explain the need for more time)

Perfection of the Appeal Motion for Extension of Time to File Notice of Appeal: An extension of time may be obtained for giving notice of appeal, if within

15 days after the deadline for filing the notice the party files the notice of appeal in the trial court and files in the appellate court a proper motion for extension of time reasonably explaining the need for an extension. Tex. R. App. P. 26.3. Can get an extension of time. Carlson: don't rely on this. If you file after the deadline in that 15 day window, and the court says "no - you haven't reasonably explained the need" - then you've lost your client's right to appeal. So don't rely on this.

Motion for rehearing TRCP 49 Deadline to file is within

15 days from judgment signing. (with 15 extension available) The time starts over if the court of appeals modifies its judgment, vacates its judgment, or issues a new opinion. NOT a prerequisite for prosecuting an appeal from the court of appeals to the TXSC A court of appeals may extend the time for filing a motion for rehearing if a party files a proper motion for an extension no later than 15 days after the last date for filing the motion for rehearing.

A brief on the merits or brief in response must not exceed

15,000 words if computer generated and 50 pages if not, exclusive of the same "formal" parts. TRAP 9 sets forth font and other requirements. The Texas Supreme Court has taken these limits seriously.

Tex. R. Civ. P. 176.3 = Subpoena limitations A person may not be required by subpoena to appear or produce documents or other things in a county that is more than ...

150 miles from where the person resides or is served. However, a person whose appearance or production at a deposition may be compelled by notice alone under Rules 199.3 or 200.2 may be required to appear and produce documents or other things at any location permitted under Rules 199.2(b)(2). Can't subpoena anyone in Texas, just those subject to subpoena power of the court.

Time Standards Rule 6 of the TX Rules of Judicial Administration Judicial Administration rules cover things like having a phone hearing instead of in person motions District and statutory county court judges should ensure that all cases are brought to trial or final disposition as follows: 1) civil jury cases -

18 months from appearance date; Appearance date - the date by which D answers lawsuit

TXC provides that if the TXSC does not act on a motion for rehearing before the _____th day after the date on which the motion was filed, the motion is denied by operation of law.

180

Parties have up to ____ days to file for FFCL after judgment

20

judge has ____ days after original request for FFCL

20

Post-Judgment Motions Do Not Extend the Appellate Timetable for Filing an *Accelerated Appeal* (Even if the Judgment is Final) - trap! The Legislature has provided that an appeal from certain orders in parental termination case must be accelerated. Tension in parental termination cases; kids are in a state of limbo, they need to know who there parents are or are they now foster children. So the TXL designates appeals from parental termination cases as accelerated appeals. Go up on a faster timetable. Appellate Rule 26.1(b) requires a notice of appeal to be filed within ____ days of the signing of the appealable order or judgment that is the subject of an accelerated appeal. (Appeals from interlocutory orders allowed by law (Chapter 9) and accelerated appeals otherwise mandated by the legislature)

20 Filing a motion for new trial (even from a final parental termination judgment) does NOT extend the time to perfect an accelerated appeal. See Tex. R. App. 28.1. So, the time period to file notice of appeal is accelerated. Some lawyers miss the date by which to file the notice of appeal on an accelerated timetable; and the parents miss the opportunity to appeal the loss of their children and the case is dismissed. It's a really serious problem. It's a trap. Further, the filing of a motion for new trial does not constitute a bona fide attempt to invoke the appellate court's jurisdiction, for purposes of perfecting an appeal. An appeal of a termination action will be dismissed for want of jurisdiction if not properly filed within the time for accelerated appeals. In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005).

Justices only have about ____ minutes to consider a petition for review.

20 They are NOT going to spend a day considering a brief you worked on. Might want to hire experience TXSC briefing attorney. Worth it. People who are very good at strategizing what it takes to get the TXSC to take it. Make good arguments about why it is important to jurisprudence of case.

Accelerated Appeals Appellant must perfect the appeal by filing a notice of appeal within

20 days after the appealable order is signed. Good faith time extensions apply

Appellant's reply brief is due within

20 days of filing of appellee's brief.

Four rules of procedure on continuances

251 - In general, seeking a continuance for good cause 252 - continuance for want of a testimony of a witness 253 - absence of counsel if NOT good cause for a continuance. However, the court in its discretion may grant a continuance. 254 - legislative continuance if lawyer or party is a TX legislator PROPOSED RULE: Last year TXSC advisory committee was asked to look at rule 253, should there be a change in light of instances where people were new parents. State Bar recommended. FL, NC have passed. Would allow a party to specify a period of time in which they cannot be held responsible to go to trial, or motions, etc. Justice Sandhill has local standing order that new parents get 3 months.

Continuance for Absence of Counsel: The Scheduling Dilemma

253 - absence of counsel is NOT good cause for a continuance (another attorney can stand in). However, the court in its discretion may grant a continuance. What should counsel do when confronted with conflicting engagements? The following cases give examples. -Good to consult local rules -Cases are frequently set more than once and that an attorney may not have full control over his or her docket, because opposing counsel or the court may initiate setting requests. Proposal currently before the legislature to add rule that allows a new parent (born or adopted) to specify a period of time in which they cannot be held responsible to go to child. NC - prevents anything - motions, depositions, etc. FL - just prevents trial Locally, District Court Judge Sanhill follows this rule; set up as a standing order.

Need at least ___ judges to vote for a response.

3 Then court will ask parties to file complete briefs. If court decides that oral argument will assist, they will schedule oral arguments (all available via youtube) If court grants review, but changes its mind, it can dismiss the petition.

(b) One or more amended motions for new trial may be filed without leave of court before any preceding motion for new trial filed by the movant is overruled and within _____ days after the judgment or other order complained of is signed.

30

(d) The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within ____ days after the judgment is signed

30

(e) If a motion for new trial is timely filed by any party, the trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment until _____ days after all such timely-filed motions are overruled, either by a written and signed order or by operation of law, whichever occurs first.

30

Appellee's brief is due

30 days after appellant brief is filed (20 days for accelerated appeals)

Deadlines: Appellant's brief is due

30 days after complete record is filed (20 days for accelerated appeals)

Expiration of Plenary Power After Denial of Motions When does plenary power expire if the trial court denies the motion for new trial?

30 days after the TCT denies the motion, either expressly by written order or on the 75th day if they haven't ruled on it by operation on law. (so if by operation of law, 105 days after day zero)

A motion for new trial must be filed prior to or within

30 days after the judgment is signed.

Need ___out of 9 to grant Petition.

4

PAGE/WORD Limits The petition for review and any response must be no longer than

4,500 words if computer generated and 15 pages if not, exclusive of pages containing the identity of parties and counsel, the table of contents, the index of authorities, the statement of the case, the statement of jurisdiction, the issues presented, and the appendix.

Once a brief on the merits is requested, about a ____% shot your petition for review is granted.

40

Petition for Review If a timely motion for rehearing and/or en banc reconsideration is filed with the court of appeals, a party has ____ days from the last overruling to file a petition for review in the Texas Supreme Court. Day of overruling becomes new Day 0

45

Must give at least ____ days notice of initial trial setting.

45 If case is reset after a previous setting, must only give reasonable notice. Rule 245

Rule Amendment 1-1-21 Rule 49. Motion for Rehearing and En Banc Reconsideration

49.3. Decision on Motion A motion for rehearing may be granted by a majority of the justices who participated in the decision of the case. Otherwise, it must be denied. Unless two justices who participated in the decision of the case agree on the disposition of the motion for rehearing, the chief justice of the court of appeals must assign additional justices to replace any justice who participated in the panel decision but cannot participate in deciding the motion for rehearing. If rehearing is granted, the court or panel may dispose of the case with or without rebriefing and oral argument. 3 judge panel hears your case at ACt. The rules provided that you have to have 2 of 3 who participated in decision to grant rehearing. But after the last election where all Republicans were wiped out. A lot of panels didn't have 2 of 3 judges left to decide motion to rehearing; so it had to be denied. So the Advisory Committee recommended this language and the TXSC adopted.

But if the TCT overruled the motion to modify (or MNT) on day 20, its plenary power extends 30 more days to day

50.

A notice of appeal may be filed in a restricted appeal within

6 months after the judgment or order is signed. Tex. R. App. P. 26.1(c). A lot longer because the party didn't participate; they may not know about it. EX: D's lawyer tells him that they filed an order when they didn't. Notice of default judgment hearing goes to lawyer that they fired. That person may not find out about the judgment. So this provision gives you more time.

Filing the Clerk's and Reporter's Record If an appeal is an ordinary appeal (not accelerated or restricted), the appellate record must be filed by court reporter and clerk within

60 days after the judgment is signed.

If the Supreme Court grants a petition for review, what are the odds the Court will change the judgment in some fashion?

60% Good to know that for settlement discussions. If petition is granted by your opponent, 60% chance something will change. May want to make another run at settlement. Particularly if you don't want the precedent.

(c) In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within ______ days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.

75

Rulings on Motions A motion for new trial or motion to modify, correct, or reform the judgment NOT expressly ruled on within ______ days after the judgment is signed is overruled by operation of law. Tex. R. Civ. P. 329b(c).

75

TCT has plenary power for 30 days after judgment, and a party has 30 days to file a notice of appeal after judgment; if party files a MNT or motion to modify judgment with the TCT within that 30 days, it extends the party's time to file a notice of appeal to ___ days after the TCT's judgment was signed.

90

Extending the Appellate Timetable The majority view in IKB Indus. is now encompassed in the successor to former Appellate Rule 41 — Appellate Rule 26.1(a). TRAP 26.1 Upon a timely filed request for findings of fact and conclusions of law, the time to perfect an appeal is extended from 30 to ____ days after the date a final judgment is signed, if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court.

90 Thus, the key inquiry in determining whether an appellant will benefit from an extended timetable by a timely request for fact findings is whether the trial court held an evidentiary hearing so there are facts to be found.

If a MNT or a Motion to Modify/Reform is timely filed (within 30 days of the judgment), it extends the appellate timetable to file a notice of appeal (which "perfects" the appeal) from 30 to

90 days after the judgment is signed. As a general rule, the Texas rules of appellate procedure require a notice of appeal to be filed within 30 days of a final judgment signed by the judge. However, that time is extended to 90 days of the judge signing the final judgment if a timely motion for new trial is filed. The timely motion for new trial would have to be filed within 30 days of the judge signing the judgment.

The Right to Open and Close Jury has been selected, now we're starting the trial. Who has the right to go first and last in arguments?

90% of the time it's the plaintiff. How do you determine who has the burden of proof on the whole case? TEST: The party who would lose, at that point, if hypothetically no evidence was introduced.

Dismissal for Want of Prosecution (DWOP) Sort of the P version of default judgment -When a D fails to file an Answer, the D suffers a default judgment When a P seeking affirmative relief fails to do what they are required to do; fails to diligently keep up with their case, it gets DWOP'd.

A DWOP is dismissal without prejudice to refile In other words, it's as if the case was never filed. (If the case gets dismissed with prejudice, it's res judicata.) TRCP 165a governs DWOPs and directs the trial court to only dismiss without prejudice to refile. Can you have multiple DWOPs? Problem: you file before limitations has run, but if it gets DWOP dismissed. Then you refile, but if the limitations time has run, the other side will be able to plead limitations as a bar and move for summary judgment.

First Nat'l Bank v. Fojtik, 775 S.W.2d 632 (Tex. 1989) (per curiam). The jury awarded the P Fojtik zero damages. P Fojtik made a conditional motion for judgment on the verdict: "While plaintiffs disagree with the finding of the jury and feel there is a fatal defect which will support a new trial, in the event the Court is not inclined to grant a new trial prior to the entry of judgment, Plaintiffs pray the Court enter the following judgment. Plaintiffs agree only as to the form of the judgment but disagree and should not be construed as concurring with the content and result."

A conditional motion for judgment on the verdict wherein the movant agrees to the form of the judgment only and not the substance does not waive the movant's right to attack the sufficiency of the evidence to support a jury finding. There must be a method by which a party who desires to initiate the appellate process may move the trial court to render judgment without being bound by its terms. Fojtik's reservation of the right to complain in the instant case was an appropriate exercise of such a right and is distinguishable from the attempted reservation in Litton

Refusals to allow lines of questioning during voir dire are reviewed under an abuse of discretion standard:

A court abuses its discretion when its denial of the right to ask a proper question prevents determination of whether grounds exists to challenge for cause or denies intelligent use of peremptory challenges.

Pursuant to these grants of legislative authority, the Texas Legislature has enacted the following statutes: Gov. C. § 21.001. Inherent Power and Duty of Courts.

A court has all powers necessary for the exercise of its jx and the enforcement of its lawful orders, including the issuance of all necessary writs

Final Judgments are Appealable

A final judgment is one that disposes of all parties and all issues, leaving nothing in the suit for further decision except as is necessary for carrying the decree into effect. This finality standard is particularly difficult to apply when a case is disposed of without a conventional trial on the merits. The finality issue has accurately been termed as a "recurring and nagging problem."

Courts of appeals may issue writs of mandamus against:

A judge of a DCt, SCC, SPC, CCC in the court of appeals district Magistrate judge of a district court Associate judge of a district or county court Concurrently with the TXSC, the court of appeals may issue a writ of habeas corpus Don't have to know the details of these statutes. Just know they change and you should bring up and check

What you get when you win on a JNOV?

A judgment in your client's favor

Orders Granting Motions for New Trial

A judgment which is final *becomes interlocutory when the trial court grants a party's timely motion for new trial*. (assumes the trial court has plenary power) When the judgment becomes interlocutory as to the party moving for new trial, it becomes interlocutory as to ALL parties because Civil Procedure Rule 301 provides that there can be only one final judgment.

How do you distinguish the holdings in Waites v. Sondock from that of In re Ford Motor Co.?

A legislative continuance is mandatory except in those cases in which the party opposing the continuance establishes a substantial EXISTING right will be defeated or abridged by delay (exception to the legislative continuance). Ford hadn't been found liable yet. Husband in Waites already owed child support.

*2) During the second step of the process, the burden shifts to the challenged attorney to provide a neutral legitimate explanation why peremptory strikes were exercised on the jurors who were struck.*

A legitimate reason, at this second stage of the Batson proceeding, "need not be persuasive or even plausible" but merely one that facially does not offend equal protection principles. The reasons stated for the peremptory challenge cannot be expanded by the trial judge or an appeals court. If the stated reason does not hold up, a new reason that was never advanced by the party who made the peremptory challenge may not be used to justify the strike.

Unverified Motion to Reinstate Does Not Extend Appellate Deadlines - another trap!

A motion to reinstate a case that has been dismissed for want of prosecution (DWOP) that is NOT properly VERIFIED (sworn before one empowered to take an oath; or the unsworn declaration) will not extend the time to perfect an appeal. If you file an unsworn motion to reinstate after a DWOP, you don't extend the appellate deadline or the TCT's plenary power. Nor will the filing of an unverified motion to reinstate extend the trial court's plenary power.

What do you win if you win a factual sufficiency complaint?

A new trial if at the trial court level; if on appeal and you win - a REMAND

Procedure for Moving for, and Granting, an Instructed Verdict (AKA Directed Verdict) What was the ultimate holding of Reed v. Wormley? 554 S.W.2d 254 (Tex. Civ. App.—Eastland 1977, writ ref'd n.r.e.).

A party may not raise on appeal an alternate ground to affirm the trial court granting of an instructed verdict that was not presented to the trial court But if you are going to make a motion for an instructed verdict, TRCP 268 requires a Motion for Instructed Verdict to state the specific ground. Why? Rationale: TRCP 270 allows the trial court to reopen the evidence and enable the non-moving party to supply evidence that "fills the gap." EX: "Your honor, we move for an instructed verdict on a legal sufficiency basis, the P has the responsibility to establish X element, there is no legally competent evidence to establish X element." - that's sufficiently specific because it states a specific ground.

PEREMPTORY CHALLENGES

A peremptory challenge is a challenge to a juror for which no reason need be given. There are two important issues to consider in his area: 1) what is the proper number of peremptory challenges to be given to each litigant or "side" of the lawsuit? 2) what are the constitutional limitations on the use of peremptory challenges, and how are those limits enforced?

Peremptory Challenges (Strikes)

A peremptory challenge is a challenge to a veniremember for which no reason needs to be given. Counsel strikes through the names of the venireperson and returns the jury list to the bailiff. Then bailiff calls out the first 12 not struck in DCt (or first 6 in CCC/L or JP) to make the petite jury. *If the AIM in a CCL exceeds $250k and is concurrent jx with DCt, then can get a 12 person jury* - WILL NOT BE ON FINAL

Reversal of Actual Damages on Appeal Requires Review of Award of Punitive Damages as well

A petitioner's claim that exemplary damages are excessive in light of the actual harm may arise only after the court of appeals reduces the compensatory damage award, and thus are properly preserved when first asserted in a motion for rehearing. Exemplary damages must be reasonably proportionate to compensatory damages, and must bear a reasonable relation to the defendant's conduct and the actual harm suffered. An award of punitives that is excessive violates the constitutional right of due process. USSCT & TXSC: there has to be some reasonable relationship between actual and punitive damages amounts. (This is in the last 20 years; so don't look at older cases on this). Unless there's really really bad conduct, punitives should not exceed a single multiplier. Up to 9x. 10x too much. You have to know the wealth of the D, to know appropriate amount of punitives to punish that D. $10k against mom & pop grocery could be deterrent, but won't be to Exxon. "Ideally, the court of appeals should automatically reevaluate exemplary damages whenever compensatory damages are reduced." Bunyon v. Bentley, 153 S.W.3d 50 (Tex. 2004). You won't know to brief that as a party to an appeal because you don't know if they will lower or eliminate actual damages. So ACt will have to do that. Because punitives must be reasonably proportionate to actual damages in light of D's conduct.

Instructions and Definitions

A section in many forms of discovery requests that defines terms in the document to avoid confusion. The charge should include only those instructions and definitions that are proper to enable the jury to reach a verdict. TRCP 277 Could have been used to introduce waiver in Island case, but was not requested

Preferential Setting Preferential (Special) Setting -

A setting at an earlier or differential time than would occur if standard setting procedures were followed. -No matter how new your case is, you move to front of the line of that docket with a preferential setting.

Use of Severance to Create Final Orders If a part of a cause has been determined with sufficient finality so that it would be sensible for it to be appealable, the court may, in proper circumstances, make its order with respect to that part of the cause final by ordering a severance.

A single "cause of action" is not severable into component parts, however. (Res judicata requires transactionally related claims be tried together) A proper severance order produces two or more separate lawsuits that proceed independently of one another.

Conditional Judgments are not Final

A trial court order does not constitute a final judgment if its effectiveness is expressly conditioned on future events. EX: TCT: "We enter judgment for P if XYZ" - NOT a final judgment because conditional. CAN'T have final judgments. Must be unconditional.

Perfection of the Appeal Preparation and Filing of Notice of Appeal: Notice of appeal must be filed from a final judgment:

A) Within 30 days after the judgment is signed or B) Within 90 days after the judgment is signed if any party timely files extending motions: 1) Motion for new trial 2) Motion to modify the judgment (or any motion seeking a substantive change in the judgment) 3) Motion to reinstate a case dismissed for want of prosecution 4) A timely request for findings of fact and conclusions of law. Timely filing of a notice of appeal is JURISDICTIONAL, so must be done on a timely basis. Must be timely; parties want a bright-line of when the case is over or going up on appeal. Policy in favor of finality of judgment.

Use of Discovery Material at Trial The scope of what can be discovered at the pretrial stage is broader (ex. allowed to discover matters that may be inadmissible) than the scope of admissibility of evidence at trial. You can discover info that is inadmissible as long as the discovery request is `

reasonably calculated to discover admissible evidence. EX: asking questions of a W that are hearsay. As long as relevant, that's okay. But can't get them in at trial. *Rationale:* We don't want to force parties to get evidence rulings at the pre-trial discovery phase of a case. We don't want to burden court with that. Discovery is generally self-executing, parties should be cooperating; shouldn't involve the court unless there's a problem.

Findings of fact by a bench trial have the same sanctity as jury findings, but they are found ...

AFTER the court announces judgment.

The standard of review for clear and convincing evidence is worded the same as that applied in a legal sufficiency review, but the factual sufficiency review is different in that the court looks at

ALL the admitted evidence. (The court does not only consider evidence favorable to the finding, as in a legal sufficiency review.) Thus, legal sufficiency review of a clear and convincing standard looks at evidence supporting the verdict plus uncontroverted unfavorable evidence to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding is true based on the evidence presented. Factual sufficiency review of clear and convincing standard - looks at ALL evidence in favor and against verdict to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding is true based on the evidence presented.

JUDGMENT MAKING THE THE COURT OF APPEALS What's the prism thru which the court is looking at TCT's ruling: Abuse of discretion, sufficiency, de novo. Include in your brief and address arguments on that basis.

Abuse of discretion is hardest, but the TCT has no discretion to apply the wrong law. Prove preservation of error. Prove Harmful Reversible - probable resulted in improper judgment or prevents appellant present a proper case on appeal Tough standard to meet. If not not harmful, not reversible.

Alternate Jurors

Additional jurors may be called to sit as alternates. Up to 2 for county court, and 4 for DCt. Same requirements, and can be substituted for jurors who become or are found unable or disqualified. Juror can be substituted even if not technically "disabled from sitting" under TXC In addition to the peremptory challenges allowed by law or rule, each side is entitled to one peremptory challenge when one or two alternative jurors are there. The additional challenges may ONLY be used against the alternates

BOP IRD vs. Affirmative Defenses

Affirmative defense - BOP on D IRD - burden remains on P to disprove D's inconsistent theory! EX: P is injured when the RR goes off the tracks because tracks were washed out. P sues RR in negligence in maintaining tracks which was cause of injuries. RR responds the reason we weren't negligence was due to an Act of God, a huge downpour. This asserts other facts as a way to rebut the P's claims. The D pleads those, but ultimately the P has the BOP to negate the IRD.

Motion for Judgment Another important difference between jury and bench trials concerns the ability of a trial judge to grant a defendant's motion for judgment after the plaintiff has completed presentation of his or her case-in-chief.

After the P has put on their proof, the D can move for judgment on the grounds that the P's case isn't believable. In a bench trial, after the plaintiff has completed the presentation of evidence, the defendant may move for judgment on the ground that upon the facts and the law the plaintiff has shown no right to relief. Therefore, after plaintiff puts on his or her case-in-chief, the judge can say, "Plaintiff, you put on evidence, but I don't believe it." NOT available in jury trial. Judge is assessing credibility of witnesses Pretty Rare that judges grant. Judges usually deny then decide after D puts on their case.

The Aldridge Presumption There's no requirement before you go to trial that you clean up pleadings. P will thus often plead a lot more than they actually litigate. EX: Pleading both misrepresentation and fraud. Fraud is harder to prove. By the time you get to trial, it might be too hard to establish fraud, but you can establish misrepresentation. But if you look at judgment vs. pleadings, it looks like it is not final because fraud isn't mentioned in judgment. Aldridge tried to address this.

Aldridge case (1966) - tried to set down an approach for determining the appealability of an order explicitly disposing of one among several claims, but not all claims. Alrdige presumption - presumption of finality disposing of all parties/issues when there's a conventional trial on the merits. *RULE: When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to Rule 174, Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the [trial court] intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.*

If there's a full trial on the merits, we still use

Aldridge presumption that it is a final judgment.

What result if there is no antagonism between "sides"?

All of the Ds would share 6; all the Ps would share 6.

Notice of Setting for Trial

All parties are entitled to not less than 45 days notice of a trial setting the first time the case is set for trial. Failure to give notice of a trial setting as required by TXRCP or local rules is cause for setting aside a judgment against the non-notified party and granting new trial. Court clerk must give notice of a trial setting to a nonresident attorney on written request; local rules differ on whether it is the responsibility of the clerk or requesting party to give notice of trial setting in other cases.

Grant or Denial of Special Appearance Motions

All rulings on special appearance motions are appealable even if interlocutory. (Exception: Family Law cases)

Why do we have peremptory strikes?

Allow the attorney to use knowledge and experience to try to shape a sympathetic jury. Just the attorney's biases. NOT a constitutional guarantee Different states have very difficult rules on peremptory. Texas is one of the most generous with 6 strikes N.C. allows the most at 8 peremptory strikes.

Multiple Orders and Missed Deadlines The consequence of misunderstanding which order is "final" can be a lost opportunity to appeal. In Runnymade Corp. v. Metroplex Plaza, Inc., 543 S.W.2d 4, 5 (Tex. Civ. App.—Dallas 1976, writ ref'd), the Dallas Court of Appeals ruled that an order sustaining a plea in abatement finalized the case because it disposed of the last remaining claim, even though it did not expressly incorporate or even refer to a previous interlocutory order that dealt with the other defendant.

Although a so-called "final judgment" was signed months later, which expressly incorporated both of the previous orders and recited that both were interlocutory, the Dallas Court held that the latter order was a nullity. Should a clearer signal of finality be required? This was tried out at the federal level. But a lot of cases were not final because the TCT wasn't used to it. So it left open the TCT's plenary power for years.

Appellate Security: Supersedeas What is the time frame for a judgment debtor wishing to suspend judgment enforcement on appeal to post supersedeas?

Although a writ of execution will generally not issue prior to the expiration of 30 days following judgment entry, post-judgment discovery of assets as well as other enforcement steps, such as seeking garnishment or a turnover order may commence immediately after judgment signing if no appellate security is in place. See Tex. R. Civ. P. 628, 631a.

Appellant's Reply Brief Appellate Rule 38.3 provides that the appellant may file a reply brief to address any matter raised in the appellee's brief. Tex R. App. P. 38.3.

Although the reply brief is due within 20 days after the appellee's brief is filed, the appellate court may consider and decide the case before the reply brief is filed.

Right to Voir Dire -

Although this matter is not clearly established by statute, procedural rule, or controlling case law, it is generally recognized in TX that parties to a civil suit have a right to voir dire the jury panel. However, the trial judge has discretion to control the nature and extent of voir dire. To reasonably limit the time and scope of voir dire. If so remote to the case, judge can disallow

Inferential Rebuttal Defense v. Affirmative Defense In what ways, does an inferential rebuttal defense differ from an affirmative defense?

An affirmative defense, hypothetically assumes the Plaintiff's allegations are true but asserts an independent reason in law why the Plaintiff can't recover.

Tex. Workers' Comp. Comm'n v. Garcia (Tex. 1991) TCT declares that the TX Workers Comp statute is void. TX Workers Comp Commission tries to bring a direct appeal to TXSC.

An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state. Tex. Gov't Code § 22.001(c). "We have strictly construed our direct appeal jurisdiction, requiring that the trial court's ruling on the temporary or permanent injunction be 'on the ground' of the statute's constitutionality or unconstitutionality." "It is far from clear that the district court's general denial of injunctive relief ...was related to the determination that the Act is unconstitutional." NOTE 1: TXSC did later uphold act on appeal

LEGAL SUFFICIENCY -

An appellant who appeals on the basis of the legal sufficiency of the evidence is generally entitled to RENDITION when his or her "no evidence"/"as a matter of law" complaint is sustained, assuming that the error was preserved by a motion for instructed verdict, a proper motion to disregard jury findings, or a proper objection to the submission of a vital fact issue. In other words, "no evidence" points are rendition points.

Packer v. Fifth Ct. of App. (Tex. 1989) Court of Appeals abused its discretion granting mandamus relief as trial court decision was based on disputed facts.

An appellate court may not decide disputed issues of fact in a mandamus proceeding. Therefore Cannot say under the facts and law the trial court could make but one decision. The caselaw in mandamus says that the TCT has NO discretion to apply the wrong law. So it would be a clear abuse of discretion if the TCT's legal reasoning is wrong.

Timing of the Motion for Instructed Verdict (AKA Directed Verdict)

An instructed verdict is proper only after the opponent has rested or closed. A motion for a directed verdict may be made at various points during the trial: when an opponent rests, or at the close of all the evidence. Called "renewing" the motion for an instructed verdict if you do it again.

What must counsel do at trial to object to the qualifications of opposing side's expert?

An objection following the expert's cross-examination may be timely

FACTS: Witness cannot or will not appear to testify at trial (i.e. Continuance for Want of Testimony) What should an attorney do if a witness is not only absent, but unavailable even to give an affidavit? Remember: The affidavit must be created by someone with personal knowledge you as a lawyer must make an affidavit that you can't locate the person, or they are not responding. *What do you do if you want to get a continuance for want of testimony?*

Answer: Assert Rule 252 1) the party applying shall make affidavit that such *testimony is material and show that he has used due diligence to procure such testimony,* stating such diligence and the cause of failure, if known; that such testimony cannot be procured from any other source if this is the second motion for continuance based on want of testimony; 2) and, if based on the absence of a witness, *state the name and residence of the witness, and what he expects to prove by that witness;* --Why is this a requirement? If the witness is outside the subpoena power of the court, diligence requires that the witness' testimony be procured by deposition. 3) and also *state that the continuance is not sought for delay only, but that justice may be done.* (On a first application for a continuance, it is not necessary to show that the absent testimony cannot be procured from any other source. However, that is required when seeking subsequent continuances.)

Only in exceptional circumstances is inflammatory language incurable by instruction:

Appeal to racial prejudice Use of epithets like "liar" "fraud" "cheat" in disregard of objections

What is the procedure for properly requesting a partial reporter's record? TRAP 34.6

Appellate Rule 34.6(c)(1) sets out the exclusive procedures for appealing with a partial reporter's record: (c) Partial Reporter's Record. (1) Effect on Appellate Points or Issues. If the appellant requests a partial reporter's record, the appellant must include in the request a statement of the points or issues to be presented on appeal and will then be limited to those points or issues. This rule allows an appellant to reduce the expense of an appeal by abridging the reporter's record and thereby limit the appellate court's review to only those portions of the record that are relevant to the points raised in the appeal. If an appellant complies with Rule 34.6(c)(1) by including with the request for a partial reporter's record a statement of points or issues to be presented on appeal, the reviewing court must "presume that the partial reporter's record designated by the parties constitutes the entire record for purposes of reviewing the stated points." Rule 34.6(c)(4). If, on the other hand, an appellant fails to comply with Rule 34.6(c), the contrary presumption arises and the reviewing court must instead presume that the missing portions of the record do contain relevant evidence and that the omitted evidence supports the trial court's judgment. As with its predecessor, Rule 53(d), HN3 strict compliance with Rule 34.6(c) is necessary to activate the presumption that the omitted portions of the record are irrelevant. Generally, this means that both the request for a partial reporter's record and the statement of points must be timely filed and appear in the appellate record. Furthermore, while the terminology of the statement of points need not be exact, the statement should describe the nature of the complained of error with reasonable particularity.

Partial Remand

Appellate Rule 44.1(b): "If the error affects part, but not all of the matter and is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error."

Remittitur's Effect on Appeal Rights

Appellate Rule 46.2 provides that if "a party makes a remittitur at the trial judge's suggestion and the party benefiting from the remittitur appeals, the remitting party is not barred from contending in the court of appeals that all or part of the remittitur should not have been required." Tex. R. App. P. 46.2.

Why not a reversal and rendition of judgment in a situation where evidence was improperly excluded?

Appellate court does not make findings of fact, they only unfind facts. Also, if they did, that would violate the constitutional right to trial by jury.

Stretcher v. Gregg, 542 S.W.2d 954 (Tex. Civ. App.—Texarkana 1976, no writ). FACTS: 2 brothers purchased a tract of land to partition ½ and 1/2. A survey revealed one tract was much larger than the other. The seller wanted out and gave oral notice of cancellation of the contract. The contract requires written notice of cancellation. The buyers sue for specific performance. The trial court was asked to make fact findings and found the seller gave oral but not written notice of cancellation, but ordered the contract canceled and denied specific performance.

Appellate court: This was error. Tex. R. Civ. P. 299. When findings of fact are made by the trial court they form the basis of the judgment. I.E. The judgment should conform with the findings. The judgment that the court reaches should comport with the findings of fact; should be consistent legally. *Here* it's not legally consistent to find factually that the contract required written notice of cancellation, and that was not given, to be consistent with those findings that the buyers are awarded specific performance. The judgment must conform to the findings and ordered the contract reformed to reflect the proper acreage and granted specific performance. Fact findings are not just window dressing; they must support the actual judgment that the party ends up getting. The seller argued the trial court failed to make a finding of written notice but since it made findings on other elements of their ground that should be presumed found in support of the judgment (AKA "a deemed finding"). COURT: No, you asked for that finding and you didn't get it. Rule 299 does not permit a finding to be presumed when that finding was requested and refused by the trial judge. Rule 299 only allows deemed/presumed findings on unrequested and omitted findings of PARTIALLY determined grounds.

2. Legal Sufficiency: As a Matter of Law-Conclusive Proof

Applicable to Instructed Verdicts and Judgments Notwithstanding the Verdict. Opposite of "no evidence" The party with the burden of proof claims the right to judgment as a matter of law under pertinent legal principles because the party has submitted evidence that is conclusive so that all material fact issues (or issue) should be determined in the party's favor. (May be a partial motion for IV, in just some elements) Therefore, when a party has introduced *clear, direct, positive and uncontradicted evidence on all elements of their ground*, that could have been controverted but wasn't, they may claim the right to an instructed verdict or judgment NOV because they established their ground "as a matter of law."

*How does counsel preserve error when it believes the trial court is wrongfully refusing counsel's right to ask a voir dire question?*

Ask a proper question and receiving a direct ruling rejecting it. -A party preserves error by a timely request that makes clear—by words or context—the grounds for the request and by obtaining a ruling on that request, whether express or implicit. Tex. R. App. P. 33.1. Thus, in Babcock, we held that a party preserved error by asking a specific and proper question, stating the basis on which it sought to ask that question, and obtaining an adverse ruling from the trial court

General Charge:

Asks the jury to decide what party should win. Not used in Texas civil cases. Used in most jx. Gives narrative explanation of applicable substantive law. EX: Jury, if you find facts X, Y, Z, then find for P. If you find A, B, C, then find for D. EX: Negligence case would explain the elements of negligence and defenses. Jury does not get separate questions about each element, but just a few questions about who the jury finds for, the amount of damages, etc. To temper the tendency of jurors to fudge their response, the judge may comment upon or array the evidence in connection with charging the jury Texas doesn't want jury to find who wins, wants jury to find fact questions.

[5] The Motion for Instructed Verdict (AKA motion for directed verdict, motion for judgment as a matter of law) TRCP 268

Asks the trial judge to abort the trial and render judgment in the movant's favor, on the claimed ground that no other judgment is legally proper, given the state of the evidence. Can be made when the opposing party has rested or closed. Thus, the D may make such a motion after the P rests, but the P may not move for a directed verdict at the time

Satisfaction of Reasonable Explanation Standard Although the court's holding in Verburgt necessarily implies a motion for extension of time to perfect the appeal, it is still necessary for the appellant to

reasonably explain the need for an extension. Chiklewitz v. Winter, 25 S.W.3d 382, 383 (Tex. App.—Fort Worth 2000, no pet.) (providing that appellant failed to reasonably explain need for an extension after the court of appeals gave notice of intent to dismiss unless appellant showed grounds for continuing appeal).

Brandon v. Cooper, 591 S.W.2d 553 (Tex. Civ. App.—Amarillo 1979, writ ref'd n.r.e.). FACTS: Plaintiff insurance agency filed suit against defendant former employee alleging unfair competition, breach of an agreement not to compete, and the use of confidential information by defendant. The jury ruled in favor of defendant. What points of error did Brandon assert on appeal? Why were those complaints overruled?

Asserted that the jury instruction regarding the definition of "confidential information" was incomplete. Overruled because the court didn't feel that Brandon's expanded definition was a correct statement of the law. Trial court should NOT include legally incorrect instructions. Brandon also asked for definition of "confidential relationship" to be included in instructions. COURT: that is unnecessary surplus instructions. Jury doesn't need it to decide verdict. "Rule 277, Texas Rules of Civil Procedure, authorizes a special instruction only when it is necessary to enable the jury to properly pass upon and render a verdict on the issues submitted. . . . Assuming a proper request or objection, the primary criterion to be observed is that the trial court must give definitions of legal and other technical terms used in the charge. . . . "Anything else, however interesting, or, indeed, however relevant to the case in general—which does not aid the jury in answering the issues must be excluded."

[6] The Jury Charge TRCP 271-279

Assuming no instructed verdict has been rendered, the charge to the jury must be delivered. In TX, preparation of the charge is traditionally an elaborate matter. Technically the court's responsibility, the practice is for attorneys to construct most of the charge de facto through requested language submitted to the judge. Once the judge has prepared the final draft, the attorneys may make objections and requests for additional questions, definitions, or instructions for the purpose of preserving complaints about the charge. This must be accomplished before the case is submitted to the jury or errors in the charge are waived. The judge then causes the jury to be returned to the jury box and reads the charge aloud.

Jury Charge Objection *Timing*:

At the charge conference (make sure the court reporter is present). -Any objections must be made *before the charge is read to the jury.* -*However, if the judge tells you at the end of the charge conference that is the last opportunity, that's it. Look at local rules.* Not an abuse of discretion. *What if it's an omission?* -If it's relied upon by your opponent? -You can object OR request its inclusion.

*3) In step three, the objecting party has the ultimate burden to persuade the trial judge that the allegations of purposeful discrimination are true in fact.*

At this stage, the court must decide whether opposing counsel gave a rationally neutral explanation for each of the challenged strikes and, if so, whether the explanation was truly race-neutral or merely a pretext for a racially/gender/ethnically/etc. motivated strike. At this stage, the objecting party may examine the voir dire notes of the opponent's attorney IF the attorney relied upon these notes while giving sworn or unsworn testimony as to its reason for the strike. Can even conduct cross examination During the third step in the process, a number of FISK factors should be used to determine whether the allegations of purposeful discrimination are true in fact, i.e., whether the explanation given for the strike was race-neutral or pretextual: 1) the statistical data pertaining to the peremptory strikes 2) A comparative analysis of the "black venire panelists who were struck and the white panelists who were allowed to serve," 3) whether a jury shuffle was used by the party making the challenge, and 4) contrasting voir dire questions posed to "black and non-black panel members."

Texas Supreme Court Review Statistically, what are the odds the Texas Supreme Court will grant a petition?

Average is approximately 10%.

Rationale for final judgment requirement for appeals:

Avoids piecemeal appeals and interlocutory rulings may become insignificant in light of rest of proceedings (if you ultimately win there's no point in appealing an interlocutory ruling you didn't like)

TX rules on depositions are more liberal, allowing them to be used at trial ...

regardless of availability of witness. Thus, depositions are more used in Texas than in other jxs Depositions may be offered into evidence by reading them to the jury. Having one attorney read questions and the other answers. Many attorneys prefer to have the answers read from the witness stand If the objection is to the form of the question asked or the nonresponsiveness of the deponent's answers, the objection must be made at the deposition or it is waived. Attorneys can read only parts of a deposition, but the other side has the right to have the other portions read Interrogatories and admissions are treated the same way: read before the jury

Not a lot of rules on how cases get set for trial. Happens because there are so many variations among the 254 counties in TX. Local rules are really important. Local rules -

regional judges get together, make gap-filer rules. Send to TXSC for approval. Posted online on the court's webpage. Rules advisory - recent changes; prospective changes. You can find them under TXSC webpage. Sets forth what you need to do in that county to get on docket

After the jury is discharged after a mistrial, the case is

reinstated on the jury docket and reset for trial as the court directs.

Remember, when a P's case is DWOP, they have 30 days to seek a

reinstatement of a case. Grounds really parallel Craddock standards (not intentional, or due to conscious indifference) P has an equitable right to a new trial after DWOP D has an equitable right to a new trial after default judgment TX courts don't want to deprive parties their right to a day in court on a technicality. If you can show that it wasn't intentional or conscious indifference, can plead a defense, and doesn't unduly prejudice other side, why not grant new trial. On the other hand, we do want to keep things moving.

Expert testimony has to be (2)

reliable and relevant. Daubert factors

examples of arguments grounded in prejudice -

religion, nationalism (alien can't reach into the pockets of Americans), "rough part of town," (suggests to jury that the person is not one of their own).

Waiver of jury in an original trial does not ordinarily deprive a party of the right to timely demand a jury when the case is

remanded from an appellate court for a second trial; this rule applies to partial remands, as well as remands of an entire case. Even if you did not have jury trial originally, you CAN have a jury on remand. When you have a new trial, you have a new right to a jury.

A judicial error is an error which occurs in

rendering as opposed to the entering of a judgment.

Trial Court Discretion The trial judge should consider the party's diligence both in producing evidence at trial and in moving to

reopen the case. The party moving to reopen should be prepared to show non-access to the evidence during trial and that the motion was filed as soon as practicable. Narrow window to move for reopen

Comparison of Rules 279 and 299 279 - jury trial; 299 - bench trial Similar rules, in that for both, if the court makes findings on some elements but not all, a party has a duty to

request additional findings on those missing elements or those elements will be presumed to be found in support of the judgment.

On the vote of 3 justices: the Sup. Court may

request the study memo or request parties to file a brief on the merits (with or without granting Petition For Review).

Rule 299 does not permit a finding to be presumed when that finding was

requested and refused by the trial judge.

Exception: Improper to sever transactionally related claims of a single party under

res judicata principles. They must be tried together.

Obtaining Relief in Texas Supreme Court Current operating procedures for TXSC The filing of a response is not necessary when another party files a Petition for Review. Sup. Ct will not grant the PFR unless it first calls for a

response.

Plenary Power and Modification of Judgment Any change to a judgment MADE BY THE TRIAL COURT while it retains plenary jurisdiction will

restart the appellate timetable under Civil Procedure Rule 329b(h). However, as to a party (and NOT the court), only a motion to modify a judgment seeking a substantive change will extend the appellate deadline as well as the court's plenary power under Civil Procedure Rule 329b(g).

Rule 329(h) provides that "[i]f a judgment is modified, corrected or reformed in any respect" [while the trial court has plenary power] the appellate timetable runs from the date of the new judgment. Tex. R. Civ. P. 329b(h). *Any change to a judgment made BY THE TRIAL COURT* while it retains plenary jurisdiction will

restart the appellate timetable under Rule 329b(h), but as to a *party only a timely filed motion seeking a substantive change in the judgment* will extend the appellate deadlines and the court's plenary power under Rule 329b(g).

Local Rules - requests to charge are frequently required by local rules to be made ...

BEFORE trial; that you have to get the judge a draft full jury charge which they will consider throughout the trial. Be sure to consult. Sometimes you have to get a draft of the rules to the judge.

Historical Development and Pervasive Issues [2] The Transition Period: 1973-1988

Became *discretionary* with TCts to decide whether to have jury questions broad form or element by element (granular) The proper breadth of charge questions was in a state of flux. The second paragraph of the 1973 version of Tex. R. Civ. P. 277 provided that "It shall be discretionary with the court whether to submit separate questions with respect to each element of a case or to submit issues broadly. It shall not be objectionable that a question is general or includes a combination of elements or issues." Tex. R. Civ. P. 277 (repealed eff. Jan. 1, 1998).

Generally don't have the right to appeal the denial of a summary judgment. Why?

Because a denial of a summary judgment simply means that there are fact issues to be decided. Then you have a trial. EXCEPTION: Member of the media on First Amendment issues. Not appealable after a final judgment so bring interlocutory or you lose the right to appeal.

Why does the appellate court reverse and remand for a new trial?

Because an appellate court is not a fact-finder, it may not pass upon the credibility of the witnesses or substitute its judgment for that of the trier of fact. Constitutional right to trial by jury is honored by the new trial as will have a new jury.

Because the burden of proof at trial affects appellate review, traditional legal and factual standards of review are not adequate when the Constitution or a statute requires proof by clear and convincing evidence. Why is that so?

Because if you have a higher standard of proof at trial, then the appellate review will also require a higher standard of proof in review. Appellate review is conducted with very limited deference to the finder of fact in CCE standard cases

Cases Involving Citation by Publication Where there has been a default judgment rendered after service by publication, the defendant may move for new trial within *two years* of the date the final judgment was signed. (as opposed to the usual 30 day limit) Why the longer time period?

Because service by publication is constitutionally questionable. USSCt has upheld as a last resort if there's no alternative. But the chances of the D responding is extremely remote. So we want to dissuade Ps from serving Ds by publication. By leaving judgment open for 2 years subject to attack, that's a big one. Thus Ps don't want to serve by citation.

Counsel's responsibility to raise conflicting jury findings BEFORE the jury is discharged to preserve error. Why then?

Because the court can return the jury to further deliberate to see if they can resolve the conflict.

NOTE 2: Remember the Payne case (hunter doesn't see culvert, is it a premise/special defect?) Remember, there was a missing element of whether the P knew of the culvert. Why wasn't the element deemed found?

Because the state asked for a question on Payne's knowledge. TXSC: this preserved error. You don't apply deeming principles when the party as asked/objected to its noninclusion.

A request for findings of fact and conclusions of law does not extend the time for perfecting appeal of a judgment rendered as a matter of law, where findings and conclusions can have no purpose and should not be requested, made, or considered on appeal. Why?

Because three's no genuine issue of material fact and the movant is entitled to judgment as a matter of law. There's no point in fact findings if there's no factual issue involved. That's NOT going to extend the appellate timetable because the request for findings would serve no purpose. Examples are summary judgment, judgment after directed verdict, judgment non obstante veredicto, default judgment awarding liquidated damages, dismissal for want of prosecution action without an evidentiary hearing, dismissal based on the pleadings or special exceptions, and any judgment rendered without an evidentiary hearing. A timely filed request for findings of fact and conclusions of law extends the time for perfecting appeal when findings and conclusions are required by Rule 296, or when they are not required by Rule 296 but are not without purpose -- that is, they could properly be considered by the appellate court. Examples are judgment after a conventional trial before the court, default judgment on a claim for unliquidated damages, judgment rendered as sanctions, and any judgment based in any part on an evidentiary hearing.

TXSC's jx was enlarged significantly in 2017. Can review any appealable order that can be appealed to ACt, or any final judgment that they think is important to development ot TX law.

Before this, very rare for TXSC to review of interlocutory appeals to ACt; no longer true. TXSC can take or not.

When must counsel object to the reliability of the testimony of opposing side's expert?

Before trial or when the evidence is offered in order to complain that the evidence has no probative value because it is unreliable.

Responding to Communications from the Jurors Tex. R. Civ. P. 286 requires that after the jury has retired, but while they are deliberating, if the court is going to give additional instructions to the jury, they shall be

returned to the courtroom. The instructions are to be in writing and in conformity with the rules relating to the charge.

Jury Shuffle -

Before voir dire commences, any party may request a jury shuffle. The jury cards are put in a receptacle,"shaken," and the jury cards are selected randomly and prospective jurors seated in that order. Only one jury shuffle per case. Counsel can ask for juror shuffle to ensure that jurors are randomly seated, not selected by bailiff Sometimes jury shuffle can be used for improper purpose. EX: paternity suit, representing dad. Counsel decides women are likely to hold against. TX is the ONLY state that uses the jury shuffle Purpose: Assure randomness in the order venire members are seated; not handpicked by the bailiff. The first 12 ( or 6 in county and Jp court) jurors not struck will make up the petite jury.

Invoking "The Rule" (Proper Timing) What is the timeframe for invoking "The Rule"?

Before witnesses are asked to testify

Why kind of bias are you looking for? What jurors bring in to the courtroom or whether they can be impartial to client/case?

Bias or prejudice is NOT about what jurors bring in, but if they cannot be impartial to client.

The other problem that can happen in receiving the verdict is that the jury will return CONFLICTING answers.

Broad form submission reduces this problem significantly. Separate submission raises likelihood of conflicting jury findings

A party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under either Tex. R. Civ. P. 165a or its inherent authority. Rule 165a(1) provides that notice of the court's intention to dismiss and the date and place of the dismissal hearing shall be sent by the clerk to each attorney of record. The failure to provide adequate notice of the trial court's intent to dismiss for want of prosecution requires

reversal. If a plaintiff complies with all the requirements of a notice to appear at a dismissal docket hearing and announce his readiness for trial, the trial court abuses its discretion by invoking its inherent authority to dismiss for failure to prosecute diligently.

Rule 277 says that "the court may predicate the damage question or questions upon affirmative findings of liability" but that "the court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers."

But "the court's charge shall NOT be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly part of an instruction or definition. *it is reversible error* for the trial court or counsel to inform the jury of the legal effect of its answers "when the issues are such that ordinary men are not presumed to know the legal effect of the answers" Such information allows a jury to manipulate its answers to reach a result it deems appropriate. In the process, jurors stray from their role as objective triers of fact and become lawmakers. Decisions are rendered not based on a judge's application of our comparative negligence statute, but "'according to what the jury in their own opinion suppose the law is or ought to be'" in a particular case

Motion for Rehearing (AKA "Reconsideration") 1999: TRCP rules and appellate rules separated. Now a MOTION FOR REHEARING IS OPTIONAL, not mandatory to get to TXSC.

But TXSC only takes 10% of cases, so you might want to try motion for rehearing. Filed within 15 days after court of appeals renders judgment (with a possible 15 day extension available if you reasonably explain need for more time) Generally, a "motion for rehearing does not afford a party an opportunity to raise new issues after the case has been briefed, argued, and decided on other grounds, unless the error is fundamental." 4500 word limit.

NOTE 2: JNOV can be used "when a legal principle precludes recovery."

But as we say in Equistar, you may have to make that objection at the charge phase depending on how the questions to the jury are raised.

Use of Harsh Language - accusations of misconduct, supported by evidence, may be made even in harsh or vernacular language.

But harsh language may combine with a shaky inference to push the argument over the brink and make it improper or reversible error.

Factual Sufficiency - the weight of the evidence doesn't support the fact finding. If a party, puts on some competent proof of every element of a ground, you get to go to the jury.

But that doesn't mean you get to recover on that ground. The jury's supposed to decide the case (in most instances) by a preponderance If the jury doesn't follow the instructions; if the weight of the evidence is clearly against the fact finding, then the factual sufficiency complaint should be sustained, and you should get a new jury. You have a constitutional right to a jury; that's why the court doesn't decide it.

Make sure you put what you want in your prayer:

reverse & remand, reverse & render, etc. But prayer is NOT controlling on court.

Refusal of the court to make a finding requested shall be

reviewable on appeal.

Once the names of the prospective jurors are drawn from the jury wheel or electronically selected and placed in order on jury lists, the lists are ...

sealed in separate envelopes, certified by the county or district clerk who review the names and the envelopes are delivered to the county or district judge in whose presence the names were drawn. After the judge inspects the envelope for proper endorsement, the envelope is returned to the appropriate clerk for safekeeping. The clerk is given an oath to keep the lists sealed and secure

CHAPTER 12: ORIGINAL PROCEEDINGS IN APPELLATE COURTS Original proceeding is NOT appellate review. You are generally ...

seeking a writ from a higher court. EX: mandamus - telling lower court to do something. Used when you can't take a normal appeal

Further, there are differences between the review that can be accomplished by appellate judges who have only the record to consider and trial judges who have

seen the parties and witnesses and sensed the affect of certain evidence or occurrences on the trial. Nevertheless, there is no meaningful difference to the parties between an appellate court reversing a judgment based on a jury verdict and a trial court setting the verdict aside or disregarding it. The end result is that the prevailing party loses the jury verdict and the judgment, or potential judgment, based on it

If the Court has granted review, but later decides that review was improvidently granted, the Court may, without opinion,

set aside the order granting review and dismiss the petition, or deny or refuse review as though review had never been granted.

Every fact necessary to show why the relator is entitled to the relief sought must be

set out in the petition clearly, fully, and unreservedly, by direct and positive allegations. The facts material to the proceeding must be presented by such a positive statement of knowledge by affiant(s) as would constitute a basis for a charge of perjury if the facts were found to be untrue. "Every fact necessary to show why the relator is entitled to the relief sought must be set out in the petition clearly, fully, and unreservedly, by direct and positive allegations.

Failure to Give Notice Failure to give notice of a trial setting as required by the TRCP or by local rule, is cause for ...

setting aside a judgment against the non-notified and non-appearing parties or granting the party a new trial, provided the party objects on that basis to going forward. TRCP 245-6, 306a: The failure to give this notice deprives a party of due process rights. Procedural due process = notice and an opportunity to be heard. if you object and the court proceeds anyway, that's grounds for seeking a new trial. Can happen on appeal - reverse and remand for new trial.

Appendix -

should contain, at minimum, the judgment or order being appealed, jury's verdict/judge's FFCL, text of any pertinent statute, contract, or other pertinent document.

IKB Indus. v. Pro-Line Corp.,938 S.W.2d 440 (Tex. 1997). FACTS: P sues D, D moved to dismiss, which was granted with prejudice at a hearing for which there was no statement of facts (no court reporter) but there was hearing, testimony, and argument of counsel. P asks for findings of fact 8 days after dismissal (timely) and they argue that extended the time to appeal, under Appellate Rule 26 ("a timely filed request for findings of fact extends the deadline for perfecting appeal from 30 to 90 days after the judgment is entered.") P filed a "cost bond" (which is how you perfected an appeal at that time; today it would be a "notice of appeal") 49 days after dismissal order was signed. ISSUE: Whether that request for findings of fact extended the time to appeal from 30 days to 90 days. When do parties have a right to obtain findings of fact and conclusions of law? When is it discretionary with the trial judge?

COURT: A party has a right to fact findings in a case "finally adjudicated after a conventional trial on the merits before the court" (i.e. a full trial) and that "in other cases findings and conclusions are proper, but a party is not entitled to them." When the trial court signs interlocutory orders that involve factfindings, it can make findings of fact or it can choose not to. COURT: Parties have a right to findings of fact after a full blown trial, but when the trial court is requested (but not required) to make findings of fact, that also extends the appellate timetable from 30 to 90 days also. The key inquiry is whether the trial court held an evidentiary hearing so there are facts to be found. HERE: The judgment in this case is dismissal with prejudice as a discovery sanction. The record shows there was a hearing with testimony and argument, so there was an evidentiary hearing. The court could have made findings but wasn't required to.

Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647 (Tex. 1990).-OVERRULED BY AMENDED RULE 277 FACTS: Two statutory grounds (both relating to endangering the child) were asserted in support of terminating parental rights of Mom. -Jury questions were broad form, just asked "should the parent-child relation between mom-child1 be terminated?" Then a second question for child 2. Very simple. -Jury comes back 10-2, so mom's rights are terminated. -Goes to TXSC; Mom's counsel argues that parental rights have enhanced constitutional protection when a parent is going to be deprived of their right to be a parent. -This is true. Today, courts must appoint counsel to indigent parents in termination proceedings. -Today the BOP is clear and convincing evidence. -Mom argues that we don't know if 5 found on one ground and 5 on another. How do we know that 10 jurors agreed on any one ground? - Shouldn't we need to know this before taking away a fundamental right? The jury reached a 10-2 verdict. What if 5 jurors found termination warranted on Ground A and a different 5 on Ground B? Assume, ground A and B are combined in a single broad form question. Will this support a judgment terminating Mom's parental rights? ISSUE: whether R.277 that, whenever feasible, should use broad form questions.

COURT: As long as we know that 10 agreed on parental termination, that is enough. ANALYSIS - 277 unequivocally mandates broad form whenever feasible. THIS HAS BEEN OVERRULED! TXSC task force investigated the issue. Yes, but that has changed as of May 1, 2020. Now must have individual findings by the jury for each statutory ground and the BIOC in parental termination cases.

McInnes v. Yamaha Motor Corp., U.S.A., 659 S.W.2d 704 (Tex. App.—Corpus Christi 1983), aff'd, 673 S.W.2d (Tex. 1984). FACTS: Very unfortunate case. P claimed that the motorcycle had a wobble. P represented by a lawyer from Philadelphia. D counsel keeps using term "Woppy" instead of "wobbly" to impugn P counsel's Italian ancestry Sidebar comments were inappropriate as well. Rule 269 - counsel may not engage in improper sidebar comments while opposing counsel is addressing witness/jury/etc. Must address your comments to the court.

COURT: But there was no objection to either of these so there is waiver of these matters.

Sorrel v. Elsy (note case on p.535) - deals with deemed and presumed findings FACTS: P (Sorrel) sued to set aside, cancel, and rescind a deed representing 640 acres of valuable land executed by her to the Ds (Elseys) for only $10. TCt entered a take nothing judgment (didn't set it aside). COA: P argued Breach of FD (the Ds owed a FD as executors of her husband's estate), that she was taken advantage of and was unaware that she had signed a deed conveying land to Ds. Ds: contend the conveyance was a valid gift. However, Ds had the burden to put on evidence and get findings that it was a gift that the deed was obtained in a fair manner and met the specific elements required. The requested bench trial fact findings did NOT address this supposed ground with specific findings on any of the necessary elements.

COURT: If the trial court, following a bench trial, makes findings of facts that make NO findings on ANY element of a ground, a party must ask for amended findings on that totally omitted ground or waive that ground as a basis for the judgment. A failure to secure any findings on any element of a ground means that ground is waived. There's a waiver of recovery on that basis. Further, the argument that the deed was a gift that required no consideration is an affirmative defense that must be specifically pled, but was not in the D's pleadings. Since the P properly preserved error by objecting when this affirmative defense was introduced at trial, there was no trial by consent.

Acord v. Gen. Motors Corp., 669 S.W.2d 111 (Tex. 1984). FACTS: Products liability case Jury instruction: "by the term 'defectively designed' as used in this issue is meant a product that is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use." The preceding instruction follows verbatim the approved charge in Turner (Tex. 1979). Additionally, however, the court instructed the jury as follows: "A manufacturer is not an insurer of the product he designs, and it is not required that the design adopted be perfect, or render the product accident proof, or incapable of causing injury, nor is it necessary to incorporate the ultimate safety features in the product." This is right out of the restatement of torts. Manufacturer wants it in there. P objects, arguing that these balancing factors are not supposed to be included; jury doesn't need to know to answer the question; and finally, it nudges the jury towards the manufacturer's side. ISSUE: the propriety of an instruction given by the trial court in conjunction with a jury inquiry of defective design.

COURT: Instruction should NOT have been given. Court had made it clear previously that the jury is not to be instructed on these factors. *What was the ultimate holding of Acord?* Any additional instruction given to the jury which amounts to a comment on the weight of the evidence by the trial court will constitute harmful error. *How does an appellate court determine whether an improper instruction constitutes harmful error?* We can't know if the instructions swayed the jury. What transpires in jury deliberations is inadmissible unless there's some outside influence (like bribery). So we can't tell in the record whether the instruction probably resulted in an improper judgment. *Court: in these cases, we don't know, so we apply test as to whether it resulted in a materially unfair trial. (Relaxed harmful error)* 1) where the evidence is sharply conflicting 2) hotly contested case. Here, it was a close case, and probably result in an improper judgment.

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) FACTS: Pools allege that the appeals court exercised its fact jx in such a way as to undermine the jury verdict in violation of the constitutional right to a trial by jury.

COURT: It is true that Texas Constitution article I, section 15, provides that the right of trial by jury shall remain inviolate, but it is the same Constitution in article V, section 6, that states that decisions of courts of appeals shall be conclusive on all questions of fact. It is the province of the jury to determine questions of fact but it is in the power of courts of civil appeals to set aside the finding and to award a new trial. *While appellate courts could not find facts, if the jury finding was so against the great weight and preponderance of the evidence, the court of appeals could unfind facts and reverse the judgment and remand the matter for a new trial.*

Dillard v. Tex. Elec. Coop., 157 S.W.3d 429 (Tex. 2005). - Cows on the road case. Leads to multiple accidents. Trucking company asserts two different IRDs: Sole proximate cause - unknown cow owners who didn't properly herd their cows. Unavoidable accident - not the negligence of either driver. D wants two separate instructions on each IRD in the jury questions. Court only allows one, unavoidable accident. D objects ISSUE: Should multiple inferential rebuttal instructions be included in the charge when they concern the same conduct? Here pleading and proof regarding both sole proximate cause (of unknown cow owners who did not properly herd) and unavoidable accident (not the negligence of either driver).

COURT: NO. Because this was the same conduct, the TCt did not err in only allowing one IRD. The unavoidable accident IRD allowed the jury to find it wasn't the negligence of any driver. Two instructions would just be overemphasizing the defense. Like asking was the D liable twice: "Was the D liable?...No really was the D liable?" Repeating instruction would give undue emphasis. Because this was the same conduct, the TCt did NOT err in giving a single instruction on the IRD. Also, many IRDs overlap: something can be both an Act of God and an unavoidable accident. An inferential rebuttal defense (IRD) operates to rebut an essential element of the plaintiff's case by proof of other facts. (Here prox. Cause) The jurors do not need to agree on what person or thing caused the occurrence, as long as they agree that it was not the defendant. A single inferential rebuttal instruction was held to suffice.

Standard Fire Ins. Co. v. Reese,584 S.W.2d 835 (Tex. 1979). FACTS: Workers' comp case. P injured on the job. The P counsel takes the case, sends the P to a particular doctor that the counsel has sent many of his clients to. Doctor also sends to a physical therapist, repeatedly. A lot of bills. The D argues that this is a sham. They're able to ask the doctor on the stand: how did the P become your client? Referred to him by P's counsel. Physical therapist gets the same treatment on the stand by D. D argues that this is just a sham to run up the damages. Said he "drove by 1000 doctors". ISSUE: Was is it improper to argue that P drove by a 1000 doctors?

COURT: NO. Just hyperbole (exaggeration of a fact to make a point). This is standard communication of argument. Doesn't have to be in evidence. *Was the argument by Standard's attorney an improper personal attack on opposing counsel? (That there was a conspiracy between Ps lawyer, Dr. and physical therapist to create inflated sham medical bills when P was not really injured)*. TRCP 269(e) -No, the argument by Standard's attorney was neither improper nor reversibly harmful. While under the 269, it is improper to attack opposing counsel, there's evidence here to support the inference of a sham. -It was not improper because there was direct and circumstantial evidence that supported the argument that the P, attorney, doctor, and physical therapist were conspiring to manufacture symptoms.

McGalliard v. Kuhlmann,722 S.W.2d 694 (Tex. 1986). ISSUE: Whether the trial court's finding on damages is supported by legally or factually sufficient evidence. FACTS: Party bought a home from previous homeowner, says that there was misrepresentation about state of the roof. Buyer sues seller for costs to repair leaking roof ($113k). Testimony re cost to repair leaking roof: P's expert witness McFarland: $113,088 (includes $33,617 for "unseen items") Ds witness Slater (originally oversaw construction of home): $500-$800 Independent Bid to repair: $10,000. TCT: makes fact finding that repair cost is $12,500 ACt: P's expert is conclusive - should be $113k Is the trial court's finding of fact on damages supported by evidence?

COURT: NO. This is not a matter solely dedicated to experts. People with everyday homeowner experience can understand. A trial court's finding of fact may be attacked (for the first time) on appeal on the bases the evidence is legally or factually insufficient to support the finding. TRAP 33.1(d) Opinion Testimony: -If the opinion testimony is clear and uncontroverted and the opposing side had an opportunity to cross exam the witness, does it establish any material fact as a matter law? (Only if the subject is one exclusively for expert or skilled witnesses) Lay people can give opinions about things that are within their perception (EX: in my opinion he was drunk, she was loud, he was speeding) Held: P's expert witness testimony not conclusive as this subject (cost to repair roof) was not one for experts only. Trial judge "can form his own opinion from other evidence and by utilizing his own experience and common knowledge." It was within the judge's discretion to give credit to Slater's testimony over McFarland.

State Dep't of Highways & Pub. Transp. v. Payne 838 S.W.2d 235 (Tex. 1992). FACTS: Payne went hunting in the a.m. at dusk and fell into a culvert and is injured. Payne sues the State. Payne was familiar with the area and knew about the culvert but could not see it in the dark. Not clear whether this is a special defect (invitee duty) or premise defect case (licensee duty). TCt adopts special defect, TXSC reverses, says it is only a premise defect case (increases BOP on P). *Did the State preserve its complaint that the charge failed to include an inquiry whether P had knowledge of the defect-a necessary element of a premise defect case?*

COURT: The proper method for preserving a complaint about the jury charge is way too complex, especially in light of the shift to broad form questions. The charge was complicated, we have this labyrinth of rules, difficult to get your arms around. We appointed a Task Force to figure this out. *In the meantime, the new relaxed standard for charge error: Whether the party made the trial court aware of the charge complaint, timely and plainly, and obtained a ruling.* If you make an objection that informs the court of what you think should be in a jury definition/instruction; today that is alright; you made the trial court aware timely and plainly. We're not going to be hypertechnical. Bottom line, did you tell the trial judge the problem. We're not going to hypertechnical. Only need Payne if you fail to preserve error under the technical rules, which are still in place. Payne is of great relief to lawyers; because it is difficult to know if should make a request or objection to preserve error.

H.E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22 (Tex. 1998). ISSUE: Does a jury charge that conditioned the answering of the damage question to the jury finding the Plaintiff was 50% or less responsible violate TRCP 277? Problem: The ordinary jury, instructed not to answer damages questions if it finds that more than fifty percent of the negligence that caused plaintiff's injuries is attributable to the plaintiff himself, will likely and correctly infer that a plaintiff cannot recover any damages at all for his injuries unless they were caused no more than fifty percent by his own negligence. The question in this case is whether such an instruction improperly informs the jury of the effect of its assignment of percentages of responsibility to plaintiff and defendant so that it can adjust that assignment to achieve a desired result. HEB argued that the instruction impermissibly informed the jury of the legal effect of its answer.

COURT: Upheld the TCt's jury charge. The TCt is given wide latitude to determine the prosperity of explanatory instructions and definitions. This is okay, because we don't want jury to figure out a damages number if they don't need to. This is allowed by TRCP 277. We do allow this kind of conditioning, that jury only needs to answer damages question if they find liability. To that extent they can be advised of effect (indirect). But can't directly comment on weight or effect of answers. So you couldn't say, "if you don't find proximate cause, P can't recover." But if jury figures out that the conditional questions imply essentially the same thing, that's permissible. To be a direct comment on the weight of the evidence, the issue submitted must suggest to the jury the trial court's opinion on the matter. Similarly, to directly advise the jury of the legal effect of its answers, the issue submitted must instruct the jury how to answer each question in order for the plaintiff or defendant to prevail. Here, it only indirectly/incidentally notifies. Majority: TRCP 277 allows the conditioning a damage question to an affirmative finding of liability, so ok. Dissent Hecht: Improper conditioning as it advises the jury of the legal effect of their answer. Having these conditional answers which allows jury inference that must find 50% or less for P to get damages is IMPROPER.

Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551 (Tex. 1986). [This case was decided before the 1988 rule amendments mandating broad form submission. It was discretionary in 1986.] FACTS: Two grounds were submitted to jury in a single broad form question: breach and waiver. The trial court denied the request from P and D for a separate question on waiver. Neither party, however, asked for an instruction or definition of waiver. The word "waiver" did not appear in the charge. "Do you find from a preponderance of the evidence that plaintiffs performed their obligations under the commitment letter in question?" ISSUE: Does broad form submission allow a jury question to incorporate multiple grounds of recovery in the same question? Is it reversible error by the TCt?

COURT: Waiver was subsumed into the question asked about performance. Broad form submission means you boil it down to one simple question whenever possible. Evidence was presented on waiver, and was included implicitly (subsumed). Should have asked for instructions, which you didn't. And thus, you have not presumed your objection. Carlson: this freaked out lawyers. If implicit charges are allowed, how do we know what is in the submission? So now, ground could be in there, even if you don't see it. Hard to know how to plead, especially before TXPJC had caught up. Now, be sure to include in instructions, definitions, what you can't explicitly get into the broad form questions. The trial court has wide discretion to submit broad issues.

Collora v. Navarro, 574 S.W.2d 65 (Tex. 1978). FACTS: Dispute over title to land between children of deceased father and a person who claims to be his common law wife (and thus entitled to inherit land). Here, they lived together, held each other out as married, so the only remaining element is "was there an agreement to be married." Alleged Wife testifies that there was an agreement to be married; and there was no cross-examination of the witness on that issue. Alleged Wife moved for directed verdict in her favor, saying "we've established conclusively the 3 elements of common law marriage" Whether a directed verdict may properly be granted based on the uncontradicted testimony of an interested witness (a party to the lawsuit) or does this type of evidence necessarily raise a fact issue as to credibility and preclude a directed verdict?

COURT: YES, directed verdict proper. Navarro: But interested witness testimony can't be conclusive because an interested witness necessarily brings an issue of credibility that needs to go to the jury. COURT: There's an exception to the general rule that the testimony of an interested witness alone can't be the basis for an instructive verdict and that is when the testimony pertains to matters reasonably capable of exact statement (H: "we agreed to be married"); that is clear, direct, and positive; is internally devoid of inconsistencies and contradictions, and is uncontradicted either by the testimony of other witnesses or by circumstances — in short, when there is nothing to cause any reasonable suspicion as to its truth. "Navarro could have used the time honored method for testing a witness's credibility...cross examination." HELD: The evidence conclusively established the fact of plaintiff's common law marriage; thus, no issue remained to be presented to the jury.

Texas v. Credit Bureau of Laredo, Inc, 530 S.W.2d 288, 289 (Tex. 1975) FACTS: Credit Bureau (D) was sending fake legal notices State had sued the credit bureau before, and there was an agreed injunction that the D would stop sending out notices that deceptively looked like they were from a state official. But D continued to send out such notices that the State of Texas felt violated the injunction as deceptive, so the State of Texas is suing in this proceeding for civil penalties. The P argues this is basically a suit for contempt. For not complying with the previous injunction. ISSUE: Does this case deal with a "cause" that entitles D to a jury trial?

COURT: YES, this is a case for civil penalties; there are fact issues involved, so there's no reason you wouldn't be entitled to a jury in a civil proceeding. CASE TAKEAWAY: jury trial right extremely broad.

NOTE case - Garza on p497 The presiding juror announced to the court that the jury had not been able to answer all questions, but 10 jurors had been able to agree to the answers to some. 10 agree to the damage question. No damages. But they did not agree to the liability question. Raised the issue: is the liability question now immaterial, so that the court can ignore that question as it won't alter the legal effect of the verdict?

COURT: YES. It would not alter the legal effect. Whether the jury found liability or no liability, the judgment would still be P take nothing because the jury found no damages and the evidence supported that finding.

Bridges v. Robinson, 20 S.W.3d 104, 114 (Tex. App.—Houston [14th Dist.] 2000, no pet.). FACTS: appellate lawyer said "we're going to tie this up in court for a millennium"

COURT: a reasonable attorney would not find reasonable grounds for appeals here. Shows bad faith. In moving for summary judgment and in appealing the denial of it, appellants all but ignored a great deal of damaging material evidence that precluded reversal of the lower court's denial of summary judgment. It is fundamental that the evidence must be viewed in the light most favorable to the non-movant, yet the appellants dismissed these requirements. Instead, appellants improperly presented their own version of the facts in a manner resembling jury argument. This conduct evidences a conscious indifference to long-settled principles of summary judgment law. There is no room at the courthouse for frivolous litigation. When a party pursues an appeal that has no merit, it places an unnecessary burden on both the appellee and the courts. More importantly, it unfairly deprives those litigants who pursue legitimate appeals of valuable judicial resources.

Ford Motors Case - presiding juror gave note to bailiff asking what the max amount that the jury could award against Ford. Ford settled immediately (no surprise) Ford's lawyer asked jurors about the case and finds out that none of the other jurors knew about the note was sent, weren't even discussing damages at the time. Ford wanted to do some discovery on whether there was misconduct.

COURT: denied, but Mandamus later granted. What was discovered was that the presiding juror was in collusion with P's lawyer to set up the whole thing up to get a settlement. P attorney disbarred, and Ford gets a new trial. The judge was also taking bribes and went to prison. Does raise an issue discussed in concurring opinion: *how many jurors does it take to support sending out a note to the court asking the court for guidance?* -Rule is silent. TXSC advisory committee discussed this. TCt judges said they get notes all the time, and they don't know how many jurors are supporting the question. Often looks like the question is to appease one odd juror who wants answer before vote.

Maddox v. Denka Chem. Corp., 930 S.W.2d 668 (Tex. App.—Houston [1st Dist.] 1996, no writ). FACTS: P is injured working for independent contractor for chemical plant. Sues the chemical company. Chemical company: we don't have a duty to the IC or their employees unless the D has the right to control the details of the work. So the jury question considered whether the D had the right to control the IC. P argues that the following jury instruction was prejudicial: "the general rule is that an owner does not have a duty to see that an IC preforms work in a safe manner."

COURT: this is a good example of how it is not proper to include more law. This likely was perceived by the jury as a nudging instruction telling them how the case should be decided. Saying that generally landowners don't have a duty regarding ICs is like saying "generally landowners win these cases." It was error to include this instruction, and it was probably harmful. Reverse and remand due to improper jury instruction.

Fulmer v. Thompson, 573 S.W.2d 256 (Tex. Civ. App.—Tyler 1978, ref'd n.r.e.). FACTS: Assault and battery case for civil damages. Counsel improperly accused an opposing witness of being paid to testify as he did. Testimony included W who was a friend of the P that testified that he smelled alcohol on P's breath when P was in the hospital. D counsel notes in closing argument that a friend wouldn't say that unless it was true. P counsel argues that W might have been paid to say he smelled alcohol on his breath. That he was bribed D objection, motion for mistrial, but was overruled.

COURT: this was an extremely improper argument that probably resulted in prejudice. Reverse/remand for new trial. P tried to argue this bribery argument was "invited error"; that he was just responding to the other side's improper argument. COURT: No. D's counsel argument was proper (W wouldn't testify against friend unless true) and supported by evidence. There's nothing in the record, however, that any W was being paid. Can't be invited argument. As opposed to the Standard Fire case TXSC: it is reversible error to accuse witness of being bribed, if there's no evidence to support it. So bad, it's almost per se reversible. *What is the "Open Door" Doctrine?* the principle that an argument which invites or justifies the other party's response creates a right of reply, even though the subject would ordinarily be outside the realm of proper comment. an argument, which is provoked or invited by an opponent's argument, is not objectionable when it is directed to the subject matter introduced by the opponent, even though without such provocation, it might have been improper *What comments by counsel opened the door?* That his friend testified he smelled alcohol on his breath, and that he wouldn't have testified that about a friend unless it was true. Opposing counsel responded that he may have been paid to testify. *Is it permissible to respond to it in your argument even if it would otherwise be improper if the door had not been opened?* YES. But here, the court does not agree that it was an invited argument.

Witnesses who violate "The Rule"

Can be punished by contempt or have their testimony excluded

References to Inadmissible Evidence It is improper for counsel to refer to inadmissible evidence in opening statement or otherwise. What should happen in the event of a mention of inadmissible evidence?

Can cause reversal requiring a new trial. Short of reversal, an objection to the trial court, which is sustained by the court, and a request for an instruction to disregard, may cure lesser errors. The trial court can, and sometimes does, grant a mistrial upon request.

In TX it is not necessary, except punitive (and maybe a few other things) to have a unanimous verdict.

Can have 10/12 or 11/12 or 12/12 in DCt; ⅚ in county county, JP. Must agree on all material questions. But what is material? Rule 292 - allows as few as 9 jurors in DCt if 3 jurors or die or became disabled. Carlson: never heard of this happening.

Court enters judgment correctly nunc pro tunc, but other side thinks this was a judicial error (not just a clerical error) and that court erroneously entered a judgment of law. Can other side appeal? If the error is corrected when the court has lost plenary power can the other side appeal the whole judgment or just the correction?

Can only appeal the part that the court changed, the nunc pro tunc part; not the underlying judgment. The nunc pro tunc change can be appealed from the day the nunc pro tunc judgment is signed. Nunc pro tunc are rare because lawyers are really careful reviewing judgments During plenary power, of course, TCT can correct both clerical and judicial errors.

Invited Error is Not Permitted - parties may not "invite error" by requesting the submission of an issue to the jury and then objecting to it's submission

Can't argue that the trial court erred by doing what I asked for. However, if the trial court takes your recommended charge and changes them, you can object

Is Jury shuffle subject to Batson challenge?

Carlson: I bet it is, but we don't have any higher court cases on this.

It's easy with cases that goes to trial on the merits to figure out, because unless it's intrinsically interlocutory, we presume that it is a final judgment disposing of all parties/issues. But what happens if there's NOT a conventional trial on the merits: case is dismissed DWOP, sumJ, etc.?

Case law that has been OVERRULED: If there was a "Mother Hubbard" Clause that makes the order final. But TXSC REVERSED that. Now, the inclusion of a Mother Hubbard Clause does NOT make the ruling per se final.

Which courts are NOT subject to expedited trial rules?

Cases filed in Justice Courts are NOT subject to expedited treatment; NOR are cases filed under the Family, Property, Tax Codes. -However, this has changed. Not all Family Code cases are exempted anymore. -Be sure at the rule as it was when your case was filed!

Pecuniary Interest in Subject Matter

Challenge for cause should be sustained when the panel member has a direct or indirect pecuniary interest in the subject matter of the suit. Depends on evidence, and indirect interest which is immediate, real, and substantial is sufficient to disqualify EX: corporation is a party, then stockholders are subject to challenge EX: juror who has insurance with insurance company party EX: juror who is employee of a party But the fact that jurors are fellow employees of the P in a worker's comp action will not disqualify EX: juror who is subject to taxing authority of a party is NOT disqualified. Too remote a connection. But if their interest is more immediate, real, and substantial, it could be sufficient.

Challenges for Cause TRCP 227-29

Challenges for cause are made orally during voir dire as the grounds become apparent. Challenges for cause are objections alleging some fact which by law disqualifies a juror to serve in the case or which renders the person unfit to sit on the panel in the opinion of the trial judge.

What factors would motivate a party to file a motion for rehearing?

Chances only 10% to get into TXSC. So if you want another chance this might be it.

Mechanics of Rule 165a DWOP

Civil Procedure Rule 165a(1) requires a notice of the court's intention to dismiss and "the date and place of the dismissal hearing" to be "sent by the clerk to each attorney of record and to each party not represented by an attorney" by regular mail. Dismissal is required at this hearing absent a showing of "good cause for the case to be maintained on the docket." Thus, if a party fails to appear for a hearing or trial of which the party had notice, unless the notice of the setting of the hearing or trial advised the party that dismissal for want of prosecution could result, Rule 165a(1) contemplates a separate notice and an opportunity to show "good cause."

When must a party's charge objections and requests be made to be considered timely and to preserve error? Why?

Civil Procedure Rule 272 provides that each party must be given a reasonable time in which to examine the charge and present objections, which must be presented to the trial court in writing or dictated to the court reporter in the presence of the court and opposing counsel BEFORE the charge is read to the jury. Tex. R. Civ. P. 272.

Sufficiency of Motion

Civil Procedure Rule 301 does not contain requirements concerning the specificity of a motion for judgment notwithstanding the verdict. However, the motion should be as specific as a motion for directed verdict. Want to be as clear on your ground as possible

Batson Challenge

Claimant is alleging that the opposing party has engaged in purposeful discrimination in the manner they used their strikes. The equal protection logic of Batson and its progency prohibits discrimination in the exercise of peremptory challenges based on race, and such strikes are subject to strict scrutiny because classifications based on race are inherently suspect. Racial discrimination in jury selection violates not only the defendant's right to equal protection, *but also the equal protection rights of the excluded juror.* Standing to assert Batson Challenge: It is not necessary that a party have the excluded juror's same racial background in order to make out a prima facie case of discrimination in jury selection.

Tex. R. Civ. P. 316: *Judgments Nunc Pro Tunc* -

Clerical mistakes in the record of any judgment may be corrected by the judge in open court according to the truth or justice of the case after notice of the motion therefor has been given to the parties interested in such judgment, as provided in Rule 21a and thereafter the execution shall conform to the judgment as amended. During the "plenary power" period, the trial court may correct "judicial" as well as "clerical" errors. After the expiration of its plenary power, the trial court may only correct clerical errors by a judgment nunc pro tunc.

What is broad form submission?

Combining a lot of elements, even several grounds, into one big question overall. Only need 10/12 to support civil jury verdict on all material questions. If less than unanimous (10/12 or 11/12), then all jurors who agree with verdict sign. If unanimous, only the presiding juror has to sign. *Need unanimous jury to get punitive damages.* Broad form changes happened when the Court was not conservative. As it became more conservative, didn't abandon, but there has been a retreat for when broad form is not "feasible."

Query: Is it ethical for counsel to use social media to determine prospective juror's views. Other electronic searches??

Concern: counsel is not supposed to communicate directly outside the courtroom with jurors, prospective jurors, or their families. ABA opinion: just looking at it is okay. But friending, exchanging communicating is improper. Social media issue: don't ask client to take down something that is the subject of discovery, etc. That is spoilation. But at the beginning of litigation, should warn clients about what they post. Judges: if the judge has friends on social media, are they really friends? Should s/he recuse?

Test for fatal conflict in jury answer:

Consider each answer claimed to be in conflict disregarding the other conflicting answer but considering the rest of the verdict, and if so considered, one of the answers would require judgment in favor of the Plaintiff and the other would require judgment in favor of the Defendant, the conflict is fatal.

Test for fatal conflict in jury's answer:

Consider each answer claimed to be in conflict disregarding the other conflicting answer but considering the rest of the verdict, and if so considered, one of the answers would require judgment in favor of the Plaintiff and the other would require judgment in favor of the Defendant, the conflict is fatal.

Opening Statements TRCP 265(a): The party upon whom rests the burden of proof on the whole case shall state to the jury briefly the nature of his claim or defense and what said party expects to prove and the relief sought. Immediately thereafter, the adverse party may make a similar statement, and intervenors and other parties will be accorded similar rights in the order determined by the court. Tex. R. Civ. P. 265, 266, 269. What's allowed to be stated in an opening statement? (TRCP 265)

Counsel should state to the jury briefly 1) the nature of case, 2) brief statement of the facts, and 3) the relief sought. "What the party expects to prove" Improper to detail all expected evidence Rule 265(a)'s brevity requirement is designed to avoid confusing the jurors by limiting the potential for counsel's placement of "evidence" before the jurors, prior to the trial court's determination of its admissibility.

The Mechanics of Presenting Proof Presenting exhibits:

Court reporters may use a distinctive numbering or identification marking to matters to be included in the record but not admitted, than those matters admitted into evidence. Check with the reporter.

Fortenberry case - Attorney in will contest case refers to the will proponents as "vultures circling in the air" above the testatrix in his argument in favor of undue influence. Also argued "Whose grandmother is next?"

Court reversed based on inflammatory language, but especially since the "whose grandma is next?" argument invited jurors to step into the shoes of the party.

Do you have to be of the same race, gender, ethnicity, religion to assert Batson challenge?

Court: NO. (Powers v. Ohio - USSCt)

Mo. Pac. R.R. Co. v. Cross 501 S.W.2d 868 (Tex. 1973). 1973 case, so still separate and distinct submission. Charge goes to the jury element by element. Calls jury questions "special issues"; today just call them jury questions Problem: Question 10 asks basically: "is the negligence negligence?" Nonsensical. Should have been proximate cause. Jury is confused has questions. TCt judge meets jury in the hall and answers questions. Then court writes out a different set of instructions and sends them to the jury room. ISSUE: Did the TCt err in allowing the parties to make their objections to the charge while the jury was deliberating?

Court: YES. Objections must be made BEFORE jury submission. Why? We don't want to give the jury one document, then say, oh nevermind, here's a new one. Any problems with the charge should be made before it is sent to jury. However, the TCt does have the discretion to correct errors/change the charge while the jury is deliberating. This is Rule 286, but the TCt did not follow

HEB v. Quick - the D attorney criticized P for failing to call her treating physician as a W. P's counsel suggested that his client was too poor to call a doctor as a witness and pointed out that D had paid $100 to its testifying physician.

Court: invited argument, it's okay.

What if the judgment is for money in excess of $25 million and property-does the cap apply? Property value was over $100M, H owned shares in corporations all over the world, W gets a piece. What should the amount of the supersedeas bond be?

Court: once you hit the cap on the money judgment you're done. You don't have to put up additional amount for the property. But what if it was ONLY property? The statute says the cap is "in a money judgment"; doesn't say there's a cap on property or for non-property (injunctive relief, etc. - may not have any dollar value: here it is up to TCT to set supersedeas amount).

Preservation of Error How do you preserve error arising from improper jury argument by your opponent? What is the time frame?

Curable - object at the time. Most instances of improper jury arguments can be cured if the argument is retracted or the TCt instructs the jury to disregard. If the probable harm is *incurable*, the complaining party need not object at the time, but can choose instead to preserve error through a motion for new trial.

P can also move for directed verdict on D's affirmative defenses if

D hasn't met all elements of defense.

If a petition asserting merely that "Defendant was negligent in the manner they operated their vehicle" causing a collision, what should the D do?

D should "specially except" - D is entitled to more notice of factual theory than just a general negligence charge. How exactly was D negligence? Needs to know in order to defend against charge. The trial court should sustain the opposing party's "special exceptions" and order repleading with more specificity. How was the Defendant negligent?; driving too fast, running the red light, or driving while impaired?

If Plaintiff seeks to file a trial amendment to the pleadings to correct variance, what should the D do?

D should argue that it is prejudicial because D didn't conduct discovery or get witnesses on this alternate theory. That violates due process for lack of notice. When you try to change your factual theory at trial that has not been pled, the court will not allow it (assuming that D objects)

Equistar Chemicals v. Dresser Rand,240 S.W.3d 864 (Tex. 2007). FACTS: The sole damage question was in broad form and erroneously allowed the jury to find both tort (invalid: not permitted under facts) and contract damages (valid). What should D do to preserve error?

D should have objected to the damage question at the charge on the ground that *broad form damage question is not feasible* as the question submits a valid measure of damages (warranty) with an invalid measure of damages (negligence). The D's motion for instructed verdict and motion for JNOV did not preserve error as to the economic loss rule, thus it is waived. *Why is that question not just immaterial?* So that the appellate court could just ignore the jury's answer; after all it asked about a valid ground and an invalid ground. The valid question should have gone to the jury. When you have an improper question it's incumbent on you to object to your opponent's improper jury question. Can't rely on JNOV.

EX: Complex medmal case. P must offer expert testimony to make out negligence of doctor to the jury. Assume, that the P only calls lay witnesses. What motion should the D make?

D should move for, and be granted, an instructed verdict, on the ground that he P has offered "no evidence" in support of the claim that the D was negligent.

Lang v. Harwood, 145 S.W.2d 945 (Tex. Civ. App.—Waco 1940, no writ). How detailed should the statement of the case be? What is its purpose?

should not have been any longer than the opening statement in this opinion. A statement of the nature and result of the suit as embodied in the brief should not contain a full history of the case but should contain only a statement of the general nature of the suit--that is, whether it is a suit in trespass to try title, for personal injuries, or for debt with foreclosure of lien or the like; whether it was tried before the court or a jury; and who was successful in the lower court. If necessary, this may be followed by a fuller statement of the general nature of the case, but this should be done only when it is necessary in order to enable the court to understand the general nature of the questions involved; and such fuller statement should never contain the details to be considered in connection with the propositions or points to be considered later. T

"Disabled from sitting" (TXC standard) means

showing mental or physical incapacity NOT disabled from sitting: Potential bias, weather-induced delay. mere mental distress feeling his duty to the sickness of others

A lay's witness's qualifications are established by

showing that the opinion offered is based on events that were personally perceived by the witness because evidence did not establish witness as expert, he could not express an opinion without personal knowledge.

The _____ is the trigger date for asking for findings of fact/conclusions of law (they are optional)

signing of a final judgment

Once a trial court grants a new trial, we have no plenary power clock running until there's a new judgment. The signing of a judgment is the new

DAY ZERO.

Preparation and Filing of Appellate Briefs Timetable for filing appellate briefs: The date the entire record is filed (both the clerk's and the reporter's record), is

Day 0 for counting the time to file briefs.

Difficulty with appellate timetables for findings of fact/conclusions of law (FFCL) is that it runs from the last triggering event. In other words, only the first step is triggered by the signing of the final judgment.

Day ZERO - day judgment is signed. -Parties then have up to 20 days to file for FFCL But then all the rest of the steps depend on when the prior action was taken. It will vary from case to case because not every party will wait to the 20th day to file FFCL. EX: a party may file for FFCL the day after the judgment. On Day 1. Step 2 - judge has 20 days after original request for FFCL Step 3 - request for additional FFCL - party has 10 days.

Do you have to have a hearing for a new trial?

Depends on the grounds: *if you need to present new evidence in support of your MNT, you need a hearing*. If you need to present new evidence, but you allow it to get overruled by operation of law without a hearing, you won't have a record and thus no basis to appeal. Usually need a hearing when it's something you find out after the trial (EX: someone bribed a jury, some outside influence on the jury, etc.)

TRCP 265a's brevity requirement

Designed to avoid confusing jurors by limiting potential for counsel's placement of evidence before the jurors, prior to the trial court's determination of its admissibility.

Fleet v. Fleet, 711 S.W.2d 1 (Tex. 1986) (per curiam). Whether or not unanswered questions are material. What happens when the jury doesn't answer all the questions. What should counsel do? Short Answer: If unanswered material questions, counsel must object to receipt of the verdict, ask for further jury deliberation or ask for mistrial before the jury is discharged. When the jury comes back, the court will give counsel an opportunity to review the jury's answers. Then the court will look to counsel and ask whether they have any motions. Any problems with receiving this verdict? Are there unanswered questions, are there conflicting answers? This is the time to point them out before the jury is discharged because we can still send the jury back to further deliberate. FACTS: P suing ex-H who is apparently executor of her mom's estate for breach of fiduciary duty. H asserts that SOL is a bar. This is a case where the discovery rule applied to the SOL: the cause of action didn't accrue until the P knew or should have known about the misconduct giving rise to the COA. Fact question: when the P discovery the breach of FD? Jurors are asked many questions about dates. There are many the jurors didn't answer P objects to jury being discharged, asks that jury should be returned to deliberate the questions because they are material in that they will affect whether or not she can recover.

Did the trial court error in entering judgment based upon an incomplete (AKA "partial") jury verdict over party's objection? COURT: Faced with a verdict which leaves material issues supported by some evidence unanswered the trial court must instruct the jury to deliberate further on the issues (assuming a party has objected to the unanswered questions). If upon further deliberation the jury cannot agree on answers to the issues, the trial court may declare a mistrial, but the trial court may not render judgment based on the incomplete verdict. The trial court will NOT be reversed for rendering judgment, however, unless the party who would benefit from answers to the issues objects to the incomplete verdict before the jury is discharged, making it clear that he desires that the jury re-deliberate on the issues or that the trial court grant a mistrial. *Why are they material? (Because if answered could result in a different judgment.)* Depending on how the jury answered the questions could result in a different verdict. The definition of materiality used by the TXSC here is different that the Tyler court used. "We held in Powers that a judgment cannot be based on a verdict containing unanswered issues, supported by some evidence, unless the issues are immaterial. Issues are only immaterial if their answers can be found elsewhere in the charge or if they cannot alter the effect of the verdict."

Sometimes a local counsel is a legislator. What is the benefit for a party to hire a legislator as local counsel?

Don't really intend for them to try the case, but instead will be your "Ace in the hole" to get a legislative continuance. If you have an attorney legislator in a case that's called for trial, and make a motion for continuance, as long as not employed less than 30 days before trial, the continuance is mandatory from 30 days before session, all during session, and 30 days after session. Not uncommon in a case for a big firm to hire a senator/legislator just for this reason. Have to file an affidavit that legislator is actively involved in the preparation of the case. But the rule application is abused.

Timely filing Notice of Appeal (Jurisdictional)

Don't use "Cost bond" anymore - pre-1999 Don't file cost bonds today, just pay clerk's office/court reporter directly and then file a notice of appeal with the clerk (not very detailed - just identifying parties, case, number, basic info) But have to timely file - it is jurisdictional. Idea is that parties want to know if the case is continuing or done.

Missing jury questions your opponent relies on - request or objection?

EITHER!

An alter ego finding in a post-judgment net worth proceeding may not be used to enforce the judgment against the alter ego not a party to the judgment. Why?

ENTITY DOESN'T HAVE EXEMPT ASSETS. So what is seized is often the very assets they need to do business. If entity is going forward on net worth, there can be discovery of the company's finances. Ought to consider the cash alternative and maybe not do the net worth.

Remember, in any appeal, to get reversal, must show:

EPH! 1) error 2) preservation - (usually a timely objection) 3) harmful - was the argument such that it probably resulted in an improper judgment?

Findings as to ultimate facts control over evidentiary issues:

EX: "the car was blue; and we find the D was negligent in operating it." The "car was blue" doesn't need to be there at all. Not a controlling fact issue. The ultimate fact is "was the D negligent?"

This rule assumes that all the witnesses are going to be there at the time you start your case, but in reality, in a multiple day trial, the court will tell you in advance how much time you get to try the case in a pretrial conference.

EX: 5 day trial. P will probably go first two days, so D won't have witnesses sitting around for two days doing nothing. It's your job as counsel to tell your witnesses about the Rule being invoked. Figure out how you're going to communicate with your witnesses (some courts do not allow phones in court). Let witnesses know not to come into court. Just wait outside until we come get you.

In jury, you don't pick the jury, you unpick the jury by using challenges for cause, or peremptory challenges by simply striking thru the juror's name. Get 6 strikes per side for DCt 12 person juries In county courts with 6 jurors, you get 3 strikes When there are parties that are antagonistic on the same side.

EX: D1 blames D2 for the negligence. The party would ask the court to equalize the peremptory strikes, and the rules require the court to do so when antagonism is show. Rule doesn't say how to equalize, caselaw shows it does NOT have to be mathematical equality, so court has discretion to equalize in "a manner so that no side or litigant is given an unfair advantage" 4-1 ratio is unfair as a matter of law. Less than that it comes down to arguments/court discretion. Batson involved a criminal proceeding; clearly govt activity that is subject to EPC.

Sometimes as counsel, particularly for an entity, you may need different corporate support in different phases of the case.

EX: Damages vs. liability phase, you want different people Let the court know that if the Rule is invoked. "Your honor, we would like this person to be exempt from the Rule during the liability phrase...."

Improper for a jury question to assume controverted facts into question.

EX: Did the negligence of the D caused the P's harm (when negligence is controverted). Instead, should say "did the negligence, if so found, cause the injuries, if any" etc.

It is possible to assert both legal and factual sufficiency complaints:

EX: Say you think that the TCT improperly overruled your objection to the P's only evidence. You could argue that the appellate court should overrule that holding and then argue that the only evidence is gone, so there's no evidence and make a legal sufficiency complaint on "no evidence grounds." On the other hand, if the appellate court upholds the admissibility of the evidence, you could argue that the evidence is still against the great weight of the evidence and make a factual sufficiency complaint.

Mandamus can also issue to address a void order;

EX: TCT issues order outside it's plenary power window

Sometimes you assert both a legal and factual sufficiency complaint against the same evidence

EX: You've objected to your opponents only evidence. You think it is inadmissible, and thus incompetent. The TCT overrules you. You could still move for JNOV after the jury comes back against you, arguing that the evidence was incompetent (your prior ruling was wrong) and once you take away that evidence there's no evidence and thus as a matter of law, I win. Alternatively, if judge still thinks that evidence is admissible, we're filing a MNT as a factual sufficiency complaint because we think that there is "insufficient evidence" to support the jury's finding (if you don't have the BOP) or "against the great weight of our wonderful evidence" (if you do have the BOP).

To insure that a writ does not issue except for a proper purpose, the courts have devised various standards for mandamus.

EX: relator is required to have a clear right of performance of the act requested and the respondent is required to have a clear duty to perform. A request for the performance of the duty must have been made and refused. Burden is on the relator to demonstrate these facts, as well as to negate all defensive facts. Mandamus issues when the order in question is void.

Allocating the Number of Peremptory Strikes

Each "side" (NOT each party) gets 6 peremptory challenges in district court and 3 peremptory challenges in county, JP, and federal court. Definition of Side: The term "side" as used in this rule is not synonymous with "party," "litigant," or "person." Rather, "side" means one or more litigants who have common interests on the matters with which the jury is concerned.

Geographical Restrictions

Each court of appeals has appellate jurisdiction over cases litigated within its court of appeals district as set forth by the Texas legislature. There are 14 courts of appeals in Texas. Because these districts are NOT equal as to population, some appellate courts have heavier dockets than others. The Chief Justice of the Texas Supreme Court has authority to order cases transferred from one court of appeals to another to "equalize the dockets." The transferee court must decide the case "in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court." Tex. R. App. P. 41.3. To protect litigants: can't foresee this transfer would happen.

Multiple Defendants When a judgment is rendered against two appellants, jointly and severally, it is not sufficient for each of the appellants to file a bond in the amount of half the amount of the judgment, interest, and costs.

Either a separate bond for the entire amount or a joint bond is required. Because the ceiling on appellate security is tied to each judgment debtor's net worth, it is now possible multiple defendants will post appellate security in different amounts, even though they may be jointly and severally liable.

Equal Inference Rule

Equal Inference Rule - If there's only circumstantial evidence (no direct evidence) from which equally plausible but opposite inferences may be drawn, that is a wash. It equals no evidence because the jury's guessing. Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001). PLURALITY DECISION, SO NOT BINDING PRECEDENT. 4 Justices: The equal inference rule provides that a jury may not reasonably infer an ultimate fact from meager circumstantial evidence "which could give rise to any number of inferences, none more probable than another." 4 other Justices: "Properly applied, the equal inference rule is but a species of the no evidence rule, emphasizing that when the circumstantial evidence is so slight that any plausible inference is purely a guess, it is in legal effect no evidence. But circumstantial evidence is not legally insufficient merely because more than one reasonable inference may be drawn from it. If circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable, subject only to review by the trial court and the court of appeals to assure that such evidence is factually sufficient." (Justice Phillips) Thus, the "reasonable minds" standard seems to have been abandoned in favor of the Walmart/Lozano equal inference rule standard

Can also get to TXSC via certified question.

Erie Doctrine - when federal courts exercise diversity jx, federal procedure applies, but state substantive law applies. Federal appellate court can certify to TXSC a question of TX law that is uncertain. The TXSC can take on the certified question, or choose not to. It's up to the court. TX is a newcomer to certification process; took an amendment to the TXC because it is an advisory opinion (which TXC barred). If the court takes it, it may or may not have oral argument. They answer ONLY that question. Usually the 5th Circuit. Once they answer the question they will send it back to New Orleans, the 5th Circuit.

If the jury is unable to agree on a verdict and has been discharged, but no order of mistrial has been entered, the trial court may reconsider a motion for directed verdict and enter judgment if appropriate.

Essentially, as long as the trial court still has plenary power, it can enter judgment on a motion for directed verdict. In Rockett v. Tex. State Bd. of Med. Exam'rs, the San Antonio Court of Appeals held that the judge may act upon a motion for instructed verdict that was not made until after the jury was discharged for failure to agree upon the verdict. 287 S.W.2d 190, 191 (Tex. Civ. App.—San Antonio 1956, writ ref'd n.r.e.).

Keep your objection alive

Even if you objected before, or pre-trial, object when it is offered again. MIL is NOT an evidence ruling. Must object at trial. *Running objection* - tricky. Can ask for, but if the appellate court doesn't think it is exactly the same issue the appeals court may argue that the running objection doesn't apply. On the other hand, if you object every time, you can look like an obstructionist before the jury

Complaints Concerning Admission and Exclusion of Evidence When evidence is improperly admitted, how to preserve complaint?

Evidence Rule 103 requires a contemporaneous objection or a timely motion to strike inadmissible evidence stating the specific ground of objection and a ruling to preserve the complaint evidence is inadmissible . Tex. R. Evid. 103.

What is proper jury argument:

Evidence admitted; reasonable inferences from evidence; poetry/hyperbole, as long as not improper appeals; matters of common knowledge; paraphrase the court's charge in trying to prompt the jury to answer the jury questions in the way you want the jury to answer them. (VERY common)

Move for a Limiting Instruction

Evidence may be admissible against one party but not another, or one purpose but not another

The date of the trial court's final judgment must be based on the

signing of a judgment or order, not from some other act, such as orally pronouncing judgment.. If the court merely pronounces its judgment and there is no signed judgment, there is no Day 0. Day Zero is when the court signs which should have a date.

What is the "materially unfair test?"

Evidence sharply conflicting and a hotly contested trial, error results in a materially unfair trial without showing more. *Sharply conflicting* - it's a close call in terms of the evidence. *Hotly Contested* - maybe show that it was not a unanimous verdict Only 10/12 in DCt (⅚ in JP/CCs) is required in TX courts to support a civil judgment *Why is that the test?* If it's a close case, it can go either way. So it probably did harm the party that the allocation of strikes was not allowed (the motion to equalize peremptory strikes) because we can't know how things would have played out if the juror had been struck.

Plenary Power of Court of Appeals When does the power of court of appeals expire?

Expires: 60 days after judgment of court of appeals signed if no timely motion for rehearing or motion for en banc reconsideration is filed, OR 30 days after the court of appeals overrules all timely filed motions for rehearing or motions for en banc reconsideration DON'T NEED TO KNOW FOR FINAL. JUST REMEMBER THERE'S A TIME LIMIT

Why do we restart the timetables over again when the court signs a modified judgment?

FAIRNESS. The party that did NOT move for a modification should have time to respond. If the party loved the original judgment, but has all kinds of problems with the modified judgment, it should have time to respond as well.

What parts of Government Code Sections 22.001 and 22.225 restrict the Texas Supreme Court to "no evidence" points?

Factual conclusivity clause.

On any party's request, the trial court must set an expedited action governed by Texas Rule of Civil Procedure 168 for trial within 90 days after the Level 1 discovery period ends. Tex. R. Civ. P. 190.2(b)(1). The court may continue the case twice, but the continuances must not exceed a total of 60 days.

Fast track for trial, discovery, etc. Expedited actions are governed by rule 169, and are very complicated now for cases filed before January 1, 2021, it's only up to $100,000 including expenses; after January 1, it's up to $250k not including expenses.

Federal vs. State Voir Dire

Federal - generally the judges ask the voir dire questions, and the attorneys add on a few. More limited. So you need opening statement more. State - the attorneys ask the question very generous in allowing counsel to conduct voir dire. Sometimes the TCt is so generous allowing questions that counsel waives opening statements because they said everything in VD

TRCP 299a: Findings of Fact To Be Separately Filed and Not Recited in a Judgment

Findings of fact shall not be recited in a judgment. If there is a conflict between findings of fact recited in a judgment in violation of this rule and findings of fact made pursuant to Rules 297 and 298, the latter findings will control for appellate purposes. Findings of fact shall be filed with the clerk of the court as a document or documents separate and apart from the judgment.

[7] Jury Argument (AKA "Closing Arguments') TRCP 266,269

Follows the reading of the charge The party with the BOP on the whole case (usually the P) opens. The opposing party follows. Finally, the P gets that last word with rebuttal. Thus, the structure of jury argument is such that the P usually goes first and last because the P typically has the BOP. But if the D has the BOP, the D would go first and last in closing arguments. Consists usually of a discussion of the court's charge, of the evidence, of the way the attorney recommends the jury answer each question and the evidence supporting the recommendation

By contrast, the TXC provides that a jury in the County Court shall consist of ..

six persons.

Receivership Proceedings Once established, a receivership is an on-going proceeding in which the rights of various parties are determined by court order from time to time. Receivership has been treated as an exception to the "one final judgment rule."

For appeal purposes, the finality of an order made in an ongoing receivership is determined according to the test used in probate proceedings, i.e., whether the order in question "disposes of the main controverted issue concerning which that part of the proceeding was brought." Moreover, the Texas Supreme Court has ruled that any court order that "resolves a discrete issue in connection with any receivership has the same force and effect as any other final adjudication of a court, and thus, is appealable."

The judgment or order of contempt must conform to the grounds set forth in the notice given relator to show cause why he should not be held in contempt. The trial court may cause a contemnor to be detained by the sheriff or other officer for a short and reasonable time while the judgment of contempt and order of commitment are prepared for the judge's signature.

Furthermore, the trial court may correct an error prior to jurisdiction attaching in a proper court by the granting of a writ of habeas corpus.

Interested Witness Testimony Could the testimony of an interested party or witness ever be conclusive? Who qualifies as an interested witness?

General Rule: Testimony given by a party or a witness who has an interest in the outcome of the suit cannot be the basis for an instructed verdict; it raises an issue of credibility upon which the jury must pass. Exception to the General Rule: An instructed verdict is proper when the testimony pertains to matters reasonably capable of exact statement, and is clear, direct, and positive, is internally devoid of inconsistencies and contradictions, and is uncontradicted either by the testimony of other witnesses or by circumstances — in short, when there is nothing to cause any reasonable suspicion as to its truth. This exception is most appropriate when the opposing party has the means and opportunity of disproving the testimony or testing the credibility of the witness (cross), but fails to avail himself of it. ---->EX: common law wife not crossed about "agreement to be married" issue

Interested Witness Testimony Could the testimony of an interested party or witness ever be conclusive? Who qualifies as an interested witness?

General Rule: Testimony given by a party or a witness who has an interest in the outcome of the suit cannot be the basis for an instructed verdict; it raises an issue of credibility upon which the jury must pass. Exception to the General Rule: An instructed verdict is proper when the testimony pertains to matters reasonably capable of exact statement, and is clear, direct, and positive, is internally devoid of inconsistencies and contradictions, and is uncontradicted either by the testimony of other witnesses or by circumstances — in short, when there is nothing to cause any reasonable suspicion as to its truth. This exception is most appropriate when the opposing party has the means and opportunity of disproving the testimony or testing the credibility of the witness, but fails to avail himself of it. This exception is also present in the summary judgment rule: you may obtain summary judgment based on an interested W's testimony. The standard under 166a, the standard is exactly the same: "capable of clear and exact statement...." Remember, SumJ is same standard as directed verdict

The affidavit (submitted in MNT based on juror misconduct), if it shows juror misconduct from outside influence, will get you hearing, but you still have to put on your proof because the other side has a right to crossexamine during hearing. Affidavit requirements:

Generally affidavits have to based on personal knowledge of the affiant Set forth facts admissible in evidence (know the evidence rules) Affidavits are really important; good to have someone else review. Be careful of using someone else's form. Don't say "belief" - because that is not reflective of required personal knowledge.

Rendition

Generally proper for legal sufficiency challenges, judgment notwithstanding the verdict challenges, when a party failed to get a vital element in the charge over objection, etc. Matter of law contentions. If party has put on no legally competent evidence of a necessary element, then as a matter of law you lose that ground. JNOV entered by TCT, and party that obtained fails to prove an alternate ground to support, if ACt reverses JNOV ground they will render against.

Appeals are expensive and take time. Clients are usually not familiar with the process.

Get record - go through, find errors, have they been preserved, likely to be harmful/harmless? Look at standard of review the appellate court will use; the prism through which they will consider. ---De novo (no deference), abuse of discretion (a lot of deference), sufficiency of evidence (intermediate) TCT has no discretion to apply the law wrong as long as you've preserved complaint. COSTS - if we're the appellant, have to pay for reporter's record (so much per page) and clerk's record. ---Sometimes appellee can get fees from you too if you lose. SHE TENDS TO ASK THIS ON FINAL: What do you look at to determine whether they should appeal.

What happens when a court finds some elements of a ground, but not all?

Going to have presumed finding on elements without findings, unless you specifically request additional findings on that specific element.

Governmental entities usually excused from posting supersedeas.

Govt just appeals, and that is enough to suspend enforcement.

Jurisdiction of Texas Supreme Court

Govt. C § 22.001. Jurisdiction (a) The supreme court has appellate jurisdiction, except in criminal law matters, of an appealable order or judgment of the trial courts if the court determines that the appeal presents a question of law that is important to the jurisprudence of the state. The supreme court's jurisdiction does not include cases in which the jurisdiction of the court of appeals is made final by statute. (b) A case over which the court has jurisdiction under Subsection (a) may be carried to the supreme court by petition for review Generally have to first go to the ACts, UNLESS based on unconstitutionality of tX statute. (c) Except as provided by this subsection or other law, an appeal may be taken to the supreme court only if the appeal was first brought to the court of appeals. [BUT] An appeal may be taken directly to the supreme court from an order of a trial court granting or denying an interlocutory or permanent injunction on the ground of the constitutionality of a statute of this state. (d) The supreme court has the power, on affidavit or otherwise, as the court may determine, to ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction. *No Factual Sufficiency Review*

Ranger Ins. Co. v. Rogers, (Tex. Civ. App.—Austin 1975, writ ref'd n.r.e.). ISSUE/FACTS: appellant claims error by the district court in permitting counsel for appellees to make an opening statement to the jury wherein he outlined in detail the names and the substance of the testimony of many witnesses he intended to call.

HELD: Opening statement should not detail all the evidence. Counsel should state to the jury briefly 1) the nature of case, 2) brief statement of the facts, and 3) the relief sought.

Cooper v. Argonaut Ins. Co., 430 S.W.2d 35 (Tex. Civ. App.—Dallas 1968, writ ref'd n.r.e.). FACTS: P Cooper was hurt on the job and sought to recover; claims he cannot work, do things he used to do. Jury finds that there was a hernia but no back injury; that operation was successful; and that there's no reduction in his ability to work. P attacks on appeal the sufficiency of the evidence to support jury's verdict

HELD: After carefully weighing all the evidence, the appeals court found the weight of the evidence was against the jury's finding. Reverse and remand. *Why reverse and remand and not render?* ACt not a fact finding body. They "unfind" facts. Litigants have constitutional right to a jury trial. Remember: on remand, even if you had a bench trial the first time, you can request jury trial on remand. TEXAS SUPREME COURT CANNOT REVIEW FACTUAL SUFFICIENCY, ONLY LEGAL.

Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 629 (Tex. 1999) FACTS: Case is taking a long time (2 years), after discovery had been conducted, the trial court sua sponte sent plaintiff a notice that the case was set on the dismissal docket and that if no announcement was made that plaintiff was ready to proceed, the case would be dismissed for want of prosecution. Plaintiff counsel appeared and announced his readiness, but the court DWOP'd the case anyway. Court: we're going to dismiss unless you do X under TRCP 165a. Plaintiff does X, but then court dismissed for a different reason, under the court's inherent power. What was wrong with the trial court's dismissal notice?

HELD: Because plaintiff appeared and made his announcement at the dismissal hearing, the trial court could not dismiss under its inherent authority. Moreover, the notice was insufficient to apprise plaintiff that the trial court would exercise its inherent power to dismiss for failure to diligently prosecute if he did not also show cause why the case should not be dismissed. Issues here: *1) does the court have to give notice for intent to DWOP a case they dismiss under inherent power and not a reason stated in TRCP 165a?* ---HELD: Yes. But even though it's dismissed under inherent authority, still have to give notice and opportunity to be heard with under 165a or inherent authority. *2) if the court says we're going to dismiss for one reason, P complies, but then court dismissed for another reason, that's not okay.* ---This is error by the trial court. Have to send notice again if court intends to DWOP under a different rule or under inherent power instead. *3) Did the local rule in Bexar county give the required notice regarding court's intent to DWOP?* ---HELD: No, the nothing in the language of the rule notifies the party that good cause must be shown to avoid dismissal, nor does it cure the misleading effect of their language. The notice flatly conflicts with the local rule by suggesting that an announcement will cure the lack of prosecution. Raises a troubling question that still exists today. *Can a properly worded local rule serve as adequate notice of a court's intent to DWOP?* ---Courts are split. EX: A local rule that says "this is your notice that the court will DWOP any case within the time set by the TXSC." And then they DWOP without any other notice. Does the local rule suffice? Some courts of appeal have said yes, some have said no.

FELA injured railroad worker case. Attorney implied that it was a "special case" because of the danger involved in RR work and implied that the jury should interpret the evidence and law liberally in favor of the plaintiff.

HELD: Court found improper as an attempt by counsel to instruct the jury as to the law in the case. The law is what it is, the TXL has laid out what is needed to make out FELA case; there's nothing that says the jury should liberally interpret evidence.

In re Prudential Ins. Co. (Tex. 2004) IMPORTANT CASE: argued that it was changing the standard for mandamus relief. Parties agreed in their contract that in the event of dispute the parties would proceed with NO jury. *ISSUE: Is it constitutional to have a contractual waiver of jury trial?* HELD: Yes. Not against public policy. If you can contract away trial completely (thru arbitration clause) you can contract away jury trial. *ISSUE: Is this a mandamus issue, in other words, is there an adequate remedy by appeal?*

HELD: Creates a new standard for granting mandamus: *An appellate remedy is "inadequate" when the benefits of mandamus review outweighs the detriments.* Carlson: this is not very clear. Doesn't give you much guidance on what is adequate or not.- -Prior to this, TXSC said that you don't get mandamus unless there's an inadequate remedy by appeal; and just because an ordinary appeal takes longer doesn't make it inadequate. Critics: this new nebulous standard will open the floodgates of mandamus. Court: why would we require the parties to sit through a whole jury trial just to decide later that the jury waiver was valid? -There has been an increase in mandamus, but not a floodgate

Drilex Sys., Inc. v. Flores 1 S.W.3d 112 (Tex. 1999). Are expert witnesses subject to "The Rule" when it is invoked? Or is it only applied to fact witnesses?

HELD: Experts are covered by the Rule like anyone else. Most people were surprised by this decision. A lot of time the expert has been part of discovery. Done depositions. So they're not going to change their testimony, and if they do, they can be impeached for changing their story.

Patterson Dental Co. v. Dunn, (Tex. 1979). FACTS: P dentist sued 4 Ds regarding a piece of dental equipment that exploded, injuring her. The Ds all sued each other for indemnity and contribution. Each D was given 6 peremptory challenges (for a total of 24 for Ds), and the P was only given 6 challenges. Totals: 24 strikes for Ds, 6 for P. P challenged this as unfair, and the trial court denied this motion. Appeals court reversed, saying that P should have received 24 challenges.

HELD: HELD: 4 to 1 disparity as a matter of law is improper because it allows defense to pick the jury. This error as a matter of law. 4 to 1 ratio. The court held that the legislature's intent was to place a duty on the trial court to equalize the positions of the parties on both sides of a suit. Proportionalizing the strikes may be accomplished by increasing the number allotted a sole party on one side, by decreasing the number allotted the multiple parties on the other side, or by both. *Dissent* argues that this is going back to the time of "presumed harm" in trial court mistakes. -Historically, if the trial court made a mistake, harm was presumed. -However, that doctrine is not used now in most cases; which instead require a showing of actual harm. That the error was harmful (not harmless) If you can't show actual harm (like in the effect of voir dire issues), then the lower standard of "relaxed harmful error* (hotly contested, sharply conflicting)

King v. Maldonado 552 S.W.2d 940 (Tex. Civ. App.—Corpus Christi 1977, writ ref'd n.r.e.). FACTS: Suit arose from 3-car collision, in which the two D groups sued each other for indemnity, contribution, and for their own damages. No question they are antagonistic. At trial, P made a written "Motion for Equalization of Peremptory Challenges" in which he asked for 12 challenges since Ds would get 6 each. Trial judge granted P 6 challenges, and D four each for a total of 8. P objected that it unfairly allowed Ds 2 more strikes. Jury held against P. That mathematical equality is required when the court equalizes peremptory strikes.

HELD: In equalizing peremptory strikes, mathematical equality is not the rule-but rather proportionality. "'Equalization' mean[s], in the words of the statute, an allocation 'in accordance with the ends of justice so that no party is given an unequal advantage because of the number of peremptory challenges allowed that party." So the court has discretion in how they equalize each side. But it goes over the line when the allocation is a 4-1 ratio, because it allows one side to choose the jury.

Montoya v. Nueces Vacuum Serv., Inc., Tex. Civ. App.—Corpus Christi 1971, writ ref'd n.r.e.). How do you determine who has the burden of proof on the whole case? (and thus the right to open and close) TEST: The party who would lose, at that point, if hypothetically no evidence was introduced. EX: P sues D, and D files affirmative defense. Who would lose if no evidence? The P. So P has BOP ISSUE: What if D admits liability but not damages? Is that enough to shift the BOP to the D so the D gets to have opening/closing?

HELD: NO. Because even if D admits liability but NOT damages, that doesn't shift BOP because the P still loses. But if D admits liability AND damages, except for affirmative defense, the D gets to go first because if no evidence is put on D loses.

Continuance for Absence of a Party What if the unavailable person is actually a party to the case? Does a party have a right to be present at trial even if he or she will not testify as a witness? What are the requirements for this kind of motion for continuance? RAY v. RAY, 542 S.W.2d 209-212 (Tex. Civ. App. — Tyler 1976, no writ). Divorce proceeding. The client is ordered to vacate the residence. He moves out but he didn't give his lawyer contact info. The lawyer made several attempts to locate the husband for the trial, but was unsuccessful. Lawyer moves for a continuance for absence of a party. TCt: denied the continuance ISSUE: Abuse of discretion for TCt to deny continuance?

HELD: No abuse discretion by the TCt denying the continuance, because the motion didn't show the diligence used by the appellant's attorney to contact the appellant, and the attorney had announced "ready" at docket call. It is the duty of the client to keep attorney advised of their whereabouts

The Texas Supreme Court has also ruled that the proper remedy is not remittitur, rather than the grant of a new trial, unless the damages awarded after the remittitur have a

solid evidentiary foundation. In other words, the remittitur damages must be supported by evidence; if not, new trial. If there is no entitlement to recover all or part of the damages awarded as a matter of law, the proper remedy is not a suggestion of remittitur but a reduction of the amount awarded in the trial court's judgment.

Why use a MNT? -

some error has been made that necessitates a new trial

Williams v. Khalaf (Tex. 1990) Facts: Defendant counterclaimed to Plaintiff's breach of contract claim with its own breach of contract claim and later asserted fraud. The trial court entered judgment (on the counterclaim) based on the jury verdict for fraud. The court of appeals erroneously reversed on the basis limitations barred the fraud claim. It overlooked a statutory change enlarging limitations on fraud claims to 4 (not 2) years from the date the fraud claim accrued. Briefing was all done on the assumption it was a 2 year statute. Argument: can't argue now that SOL is 4 when their arguments were all that it was 2 years. Issue: Did counterclaimant waive that argument as it assumed in the court of appeals the sol was 2 years?

HELD: No waiver. Appellants' point of error is sufficiently broad to encompass the wrong SOL period was applied for fraud. Liberally construe points of error. Before the reversal by the court of appeals, counter-claimant had obtained a totally favorable judgment and was under no obligation to argue every alternative theory on which the trial court could base its action. Case take aways: 1) liberally construe points of errors 2) don't have to make an argument that doesn't exist until the court of appeals makes a holding (here, the 4 vs. 2 year SOL) It is the court's practice to construe points of error liberally in order to adjudicate justly, fairly and equitably the rights of the litigants. The court has a policy of permitting broader points of error, liberally construing briefing rules, and relaxing the past rigorous requirements as to the wording of points of error in order to do justice

Guetersloh v. C.I.T. Corp. 451 S.W.2d 759 (Tex. Civ. App.—Amarillo 1970, writ ref'd n.r.e.). FACTS: P is suing on promissory note. But P never formally requests note to be entered into evidence. ISSUE: Was the note merely a record, or was it admitted into evidence? D argues that P's counsel did not utter the phrase "offer into evidence." But during trial, P produced the original document; it was inspected by D's counsel, marked by court reporter as P's EX 1, received by the court, and placed in the statement of facts by the court reporter. Even D referred to it as evidence in oral arguments.

HELD: Nothing requires the word "offer" to put something into evidence, even if that's the norm. Everyone treated it as evidence, it was marked by the court reporter as an exhibit, etc.

In re Commitment of Hill, (Tex. 2011) FACTS: State is trying to commit Hill, as a sexually violent predator. For civil commitment, State had BOP that (1) he was a repeat sexually violent offender, AND (2) suffered from a behavioral abnormality that made him likely to commit sexually violent predatory acts. During voir dire, the TCt ordered D's attorney to terminate a line of questioning asking whether jurors could be fair to homosexuals (after several admitted they could not). Trial court also barred question of jurors whether they would convict him based solely on the first element, or follow the law that requires both. TCt barred these questions as well.

HELD: TCt abused discretion by not allowing these questions. These were not improper commitment questions (trying to get jurors to commit to find one way or another), these are questions that are asking if jurors will follow the law which requires BOTH elements of the statute for civil commitment. So not all commitment questions are bad, if they are asking jurors to commit to following the law. *Why isn't the voir dire question an improper commitment question?* - the "commitment" that the potential jurors were asked to make was legislatively mandated: they were asked whether they would require the state to prove both elements of a conjunctive statute. (instead of just convicting him based on the first element)

Jackson v. Lewis, (Tex. Civ. App.—Amarillo 1977, no writ). FACTS: P brought wrongful death suit. Dispute on the stipulation that the parties had made at trial where they had agreed to submit the question of damages to the jury. But the stipulation only went so far as the medical treatment/charges was "reasonable." There was no stipulation on the amount of damages, or that the D was liable or that there was proximate cause. Both parties are disputing the stipulation. The trial court disregarded the jury's finding of no damages for appellee's medical and hospital expenses and entered judgment in his favor. Issue: did the TCt err in not honoring the jury's verdict? Or did the stipulation already establish the amount of damages?

HELD: TCt overconstrued what the stipulation was. The court held that the stipulation for medical and hospital expenses did not establish the amount of damages as a matter of law and that the judgment should have been rendered in accordance with the jury's verdict. the stipulation did not fix by agreement the amount of Lewis' damages; instead, it merely established that the medical charges for the services rendered were reasonable and necessary.

Alexander v. Lynda's Boutique - TCt directed the parties to appear at a pretrial scheduling conference. The last sentence of the order stated: "Failure to appear without excuse will result in dismissal of the case for want of prosecution or entering sanctions or other orders as the Court deems appropriate." Lynda's Boutique did not appear at the conference and four days later the trial judge dismissed the case for want of prosecution without further notice or hearing.

HELD: TXSC held that the trial court did NOT err. Rule 165a(1) does not preclude a court from scheduling a pre-trial hearing, giving notice that failure to attend the hearing may result in dismissal for want of prosecution, and also deciding at that hearing whether the case should be dismissed for want of prosecution if a party fails to attend. All Rule 165a(1) requires is notice of intent to dismiss and of a date, time, and place for the hearing.

Hawes v. Cent. Tex. Prod. Credit Ass'n, 503 S.W.2d 234 (Tex. 1973). FACTS: P seeks to set aside a fraudulent conveyance between the 2 defendants. The jury is asked many elements of Plaintiff's claim but is not asked whether D Hawes acted in good faith in accepting a conveyance from his Co-D, a necessary element of the action. No charge objection or request is made as to that omitted element of P's partially submitted ground. The jury answers all findings in P's favor and the trial court enters judgment for Plaintiff setting aside the deed.

HELD: The Texas Supreme Court affirms on the basis when there is no objection or request regarding an omitted element of a partially submitted ground, the omitted element is deemed found in support of the judgment (for P) and therefore no good faith conveyance by D. There was some evidence presented at trial that would support that deemed finding. TRCP 279

Tex. R. Civ. Evid. 606(b) and Tex. R. Civ. P. 327(b) preclude evidence from a juror that another juror exhibited bias during jury deliberations. Moreover, while failure to disclose bias is a form of juror misconduct that justifies a new trial under the appropriate circumstances, proof of a juror's failure to disclose bias must come from

some source other than a fellow juror's testimony about deliberations

Reyna v. Reyna, 738 S.W.2d 772, 773 (Tex. App. 1987) Another case regarding Continuance sought for absence of counsel FACTS: Although counsel had announced "ready" three times prior at docket call, on the date the parties' divorce action was set for jury trial, appellant wife's local counsel presented a motion for continuance because her attorney of record was compelled to attend another trial. The trial court overruled the motion and tried the case and rendered judgment in the absence of appellant and her attorney of record. Appellant's motion for a new trial was overruled by operation of law. On review, appellant argued the trial court abused its discretion in overruling her motion for continuance and overruling her motion for new trial.

HELD: The court affirmed the trial court's denial of the continuance A motion for continuance must be filed before an unconditional announcement of "ready" since such an announcement waives the right to subsequently seek a delay based upon facts which are, or with proper diligence should have been known at the time This rule is subject to exception when an unforeseeable event arises through no fault of movant -EX: Counsel absent because of service in the Reserves -Ex: Hurricanes, etc. *Moral of the story: what should counsel have done differently here?* -Should have filed a motion for continuance complying with the rules and then at the docket call, should not have announced unconditionally ready. Can announce "conditionally ready, but your Honor we have a conflict with another trial setting at the same time in Travis County"

Villegas v. Carter, 711 S.W.2d 624, 625 (Tex. 1986) FACTS: Two days before trial was to commence, petitioner's counsel was granted permission to withdraw as counsel. Mr. Villegas (petitioner) didn't know the motion to withdraw was filed until 6 days before trial. -Motion to continuance by pro se petitioner did not have affidavit (as is required) -The trial court denied pro se petitioner's motion for a continuance, and the trial proceeded with petitioner representing himself. Petitioner was found liable. ISSUE: Was it an abuse of discretion by trial court to deny continuance due to absence of counsel when court allowed counsel to withdraw on the eve of trial?

HELD: The court held that the trial court abused its discretion in proceeding with the trial because the evidence showed that petitioner was neither negligent nor at fault in causing his attorney's withdrawal. Petitioner was not given time to employ new counsel or to receive his papers from his old counsel. The court held that the trial court should have either denied the attorney's motion to withdraw or granted petitioner's motion for a continuance because the allowed the attorney to withdraw on the eve of trial. RULES The granting or denial of a motion for continuance is within the trial court's sound discretion. The trial court's action will not be disturbed unless the record discloses a clear abuse of discretion. When the ground for the continuance is the withdrawal of counsel, movants must show that the failure to be represented at trial was not due to their fault or negligence. Generally, when movants fail to comply with Tex. R. Civ. P. 251's requirement that the motion for continuance be "supported by affidavit," we presume the trial court did not abuse its discretion in denying the motion. It would be unrealistic, however, to apply this presumption to lay movants who without fault have their attorney withdraw. The right to counsel is a valuable right; its unwarranted denial is reversible error. Of course, the rules of procedure apply equally to professional counsel and pro se litigants. But the trial court has discretion to be more flexible and understanding with pro se litigants who can't realistically be expected to know the intricate rules of civil procedure. Therefore, when a trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel to investigate the case and prepare for trial.

Ramco Oil & Gas v. Anglo Dutch (Tenge): "substantial economic harm" is

something less than "irreparable harm," the standard prescribed by prior law. The appellate court suggested factors that should be considered in assessing substantial economic harm. -Are they forced into bankruptcy/liquidation? -Do they need these assets to continue operating?

What qualifies as an "outside influence" under Texas law?

something outside the jurors themselves. So juror looking up something themselves online, etc. is NOT outside influence. But someone trying to bribe juror, is outside influence.

Tex. R. Civ. P. 298. Additional or Amended Findings of Fact and Conclusions of Law. After the court files original findings of fact and conclusions of law, any party may file with the clerk of the court a request for ...

specified additional or amended findings or conclusions.

Six Flags Over Texas, Inc. v. Parker, 759 S.W.2d 758, 759 (Tex. App.—Fort Worth 1988) FACTS: Six Flags didn't original request jury in pleadings; it was not placed on non-jury docket until 2 years later. Six Flags did not make a demand for a jury trial until a few weeks later. Even though it was still more than 30 days out from trial, the TCt denied the jury demand. ISSUE: Did the TCt abuse its discretion denying a jury trial when the jury demand and jury fee were timely paid? Why?

HELD: The court held that the trial court did not abuse its discretion by refusing appellant's request for a jury trial based on factors that it would result in unnecessary delay; interfere with the handling of the court's business, and cause prejudice to the other party who is suing for medical expenses. Even if you make a jury demand greater than 30 days (and thus presumptively reasonable), that can be rebutted. The court can still find that the demand is not timely even if made more than 30 days prior to trial. *Moral of he story:* When does the court say that you have an absolute right to a jury trial? -When you include it in your pleading. -This right ends on appearance day. The day the P files a petition, and the D files an answer Thereafter, it is presumptively reasonable if made more than 30 days before and fee paid. But here, looking at 3 factors from previous case, they found that presumption was overcome. The current time periods are 45 days notice of initiate trial setting; or 30 days for jury trial request is presumptively timely. Trial court has a lot of discretion on whether it will allow jury once you get past pleadings.

El Hafi v. Baker (Tex. 2005). FACTS: Medmal case. During voir dire, the veniremember informed the survivors' counsel that he was an attorney who had spent most of his career defending malpractice lawsuits. Juror never said he was biased, but he just said that he thought counsel should know. However, he never said he could not be fair and objective, and that he would try to be fair. Trial court overrules challenge for cause - nothing to indicate that he couldn't act with impartiality.

HELD: The court held that the veniremember's answers did not reflect a disqualifying bias. Having a perspective based on knowledge and experience did not make a veniremember biased as a matter of law. Taken as a whole, the veniremember's statements reflected more of an attempt to speak the truth so that the examining counsel could intelligently exercise peremptory challenges rather than any genuine bias. Thus, the TCt did not err in overruling the challenge for cause. Was veniremeber 25 biased as a matter of law? Why or why not? NO. [How does appellate court know who juror 25 is? - Make sure that the juror info cards are of record if you're going to make a complaint about the VD process. Can do at anytime before the end of the case. Ask trial judge "your honor, we request that the juror cards be part of the record and marked by the court reporter." Otherwise, appellate court can't figure out what is going on

Tamburello v. Welch392 S.W.2d 114 (Tex. 1965). FACTS: This case arose out of a three-car collision. P was suing multiple D, and the Ds moved that they each get 6 peremptories because they were blaming each other.

HELD: The court reversed and remanded the cause for a new trial. Tex. R. Civ. P. 233 provided that each party to a civil suit tried in district court was entitled to six peremptory challenges. The D's were antagonistic, so they should each get 6 strikes.

Lesikar v. Anthony, 750 S.W.2d 338 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding) (per curiam). FACTS: District judge ordered the court reporter to turn over notes of a hearing to the judge who took the notes home. Mandamus relief is sought against the judge.

HELD: The district judge clearly abused her discretion by that action improperly precluding party from being able to exercise their right to obtain a transcription of the hearing. However, court of appeals No mandamus jurisdiction over court reporter absent a pending appeal of the case.

H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258 (Tex. 1992). FACTS: Slip and fall case; fell on chicken blood during a "bag your own chicken" promo. LOL. TCt submitted 4 questions to jury, going element by element instead of in broad form. Reversible error?

HELD: Under TRCP 277, the TCt should have tendered a broad form question with instructions. BUT, TCt's failure to do so was *NOT harmful error*. Although in "granular" form, the questions contained the proper elements of a premises liability action Even though the P properly preserved the error of not submitting a broad form question, BUT failed to show that the distinct question form caused harm. How are you harmed by having the jury answer four questions element by element instead of two broad form questions on liability and damages? [basically impossible] You lost case because of the evidence, not because of the method of jury questions. -It's an uphill battle to convince an appeals court to reverse a case because 4 questions on the elements were asked instead of 2.

IN RE FORD MOTOR CO., 165 S.W.3d 315, 317-322 (Tex. 2005). FACTS: P suing as a result of a car accident with serious injuries. Ford moves for a legislative continuance because counsel in the case is a TX legislator, and it falls in the time period: 30 days before, during, and 30 days after. TCt denies the legislative continuance. P: This is just like the Waites case. My serious injuries require that I have medical care and physical therapy and I have substantial right that will be defeated by this mandatory continuance.

HELD: Waites is distinguishable because you don't have an EXISTING right. There's been no previous finding that Ford is responsible for your injuries. Thus, the TCt did NOT abuse its discretion; it had no choice but to deny the legislative continuance. Given the relative infrequency of legislative sessions in Texas and the key roles played by members who are attorneys, a serious constitutional crisis could arise if a court in a remote part of the state could force a legislator to trial the moment a legislative session ends, as the trial court planned to do here. Enforcing legislative continuances is also consistent with the constitutional protection afforded legislators to attend legislative sessions. Except in cases of treason, felony, or breach of the peace, the Texas Constitution itself protects legislators from arrest while traveling to or attending such sessions. We should not force the legislator/attorney to choose between the duties to clients and constituents.

Harlow v. Swift & Co., 491 S.W.2d 472 (Tex. Civ. App.—Eastland 1973, writ ref'd n.r.e.). FACTS: P is suing feed company, arguing that feed is defective food that harmed livestock. In discovery, D finds out that P had sued another feed company and obtained damages saying that food was defective. P gets MIL granted directing D not to mention other lawsuit. D is crossexamining P, and one of their W testifies that he wouldn't pay because he could get a better settlement because "he'd been through this before (litigation)" Plaintiff argues opposing counsel violated an order in limine prohibiting the mention of settlements Plaintiff made with others under similar circumstances. ISSUE: Does this statement violate the MIL?

HELD: We don't think this violates the MIL, but in any event, P waived the right to complain because the P failed to object contemporaneously, request a jury instruction to ignore the evidence, move to strike the statement from the record, or move for a mistrial. Thus, there is no preservation of error.

CMM Grain Co., Inc. v. Ozgunduz, 991 S.W.2d 437, 439 (Tex. App.—Fort Worth 1999, no pet.) FACTS: Appellant designated partial record and didn't designate appellant's complaints.

HELD: We have to presume omitted elements, so we have to affirm TCT's judgment.

Burke v. Scott, 410 S.W.2d 826, 827 (Tex. Civ. App. 1967) FACTS: Witness cannot or will not appear to testify at trial (i.e. Continuance for Want of Testimony) W is too sick to testify at trial. Was in hospital. The lawyer's client had a heart attack the day before trial also. Lawyer moves for a continuance because now his client can't testify and this witness can't testify. There's no question about diligence, wasn't the lawyer's fault that these people got sick. TCt: denied the continuance for want of testimony. Issue: did the trial court abuse discretion in denying the continuance for want of testimony?

HELD: YES. There are two reasons why the TCt abused its discretion: 1) the party who was ill has a right to be at his own trial. 2) in the motion in the continuance for want of testimony showed the expected testimony of both the client and the W, why it was material, the diligence that they used, the name, residence, etc. In other words, that they complied full with Rule 253. Thus the TCt abused its discretion by not granting the motion for continuance. Reversed and remanded.

Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991) FACTS: Halsell filed a jury request, and paid the proper fee, less than 30 days prior to trial The trial court struck Halsell's request for a jury trial on the ground that it was not timely filed. By the same order, however, the court also reset the case on the non-jury docket for final trial on the merits (MORE than 30 days from H's request) ISSUE: whether an untimely jury request can become timely if case is reset more than 30 days after jury demand was made; whether the continuance of a trial setting affects the timeliness of a jury request.

HELD: YES. Because the date of the final non-jury trial on the merits had been reset for more than 30 days after the date of petitioner's request, petitioner's request was timely filed. There was no indication in the record that granting petitioner's request would have injured respondents or caused an undue disruption to the trial court.

Powers v. Palacios, 813 S.W.2d 489 (Tex. 1991). FACTS: Plaintiff initiated a personal injury action against defendant for injuries that she suffered due to a pit bull attack. During voir dire, defendant's attorney used his peremptory challenges to strike a potential juror. Plaintiff contended opposing counsel had discriminatorily exercised a peremptory challenge based on race. ISSUE: whether a private litigant in a civil case may use a peremptory challenge to exclude a juror on account of race. Does a private civil lawsuit constitute government action? Batson involved a criminal proceeding; clearly a criminal proceeding is govt activity that is subject to EPC. But is a civil lawsuit between private still government sponsored activity subject to the EPC for jury selection purposes?

HELD: YES. Civil trial is govt sponsored activity. Govt calls people to jury duty; enforce it, oversee it, etc. When you get a judgment, the state of TX enforces it. Thus civil cases are subject to Batson.

Kiel v. Tex. Emp'rs Ins. Ass'n, (Tex. App.—Houston [1st Dist.] 1984, no writ). ISSUE: Did TCt err in refusing to allow P's counsel to ask leading questions of Max Powell, the personnel manager?

HELD: Yes. A person can call a hostile witness and ask leading questions on direct. "[U]nder Texas Rules of Evidence [611](c), plaintiff's counsel should have been permitted to interrogate the witness by use of leading questions" if a hostile witness or during cross

WAITES v. SONDOCK, 561 S.W.2d 772, 773-776 (Tex. 1977). FACTS: Proceeding against ex-H for failure to pay child support. Ex-H is a member of the TXL and files a motion for a legislative continuance. Wife's lawyer files affidavit saying that she desperately needs support, that she's taken a second job, he's $4600 behind in payments. Unable to feed kids. TCt: Judge Sondock denies the mandatory continuance. Abuse of discretion?

HELD: a legislative continuance is mandatory except in those cases in which the party opposing the continuance alleges that a substantial existing right will be defeated or abridged by delay. Here, the wife had a substantial existing right (the right to child support payments) that will be abridged by the delay.

Hyundai Motor Co. v. Vasquez, (Tex. 2006) FACTS: It was undisputed that the child was not buckled into the front-seat belt, contrary to the manufacturer's warnings. Child was killed. -The trial court allowed counsel to ask general questions about belting during voir dire and to inquire about jurors' personal seat belt habits but did not allow disclosure that the child was not wearing one at the time of the accident. ISSUE: Does a trial court having discretion to prohibit voir dire questions that seek to preview a juror's vote based on dispositive evidence?

HELD: a trial court does not abuse its discretion in refusing to allow questions that seek to determine the weight to be given a particular fact or set of relevant facts. instead of assessing juror prejudice the trial court was within its discretion in finding that the question improperly tried to ascertain how a juror would ultimately vote based on a key piece of evidence. DISSENT: The line is very blurry between a question that improperly seeks to preview the verdict vs. when it is actually going toward real bias and prejudice Preservation of error: the judge said that he understood the nature of the questions, so why should counsel have to do any more than that?

Disqualifying Criminal Convictions - If a juror is disqualified due to a felony or misdemeanor theft conviction (which would not be discoverable by counsel or VD), should reversal be automatic?

HELD: reversal of judgment was required based on 10-2 verdict, when one of the 10 jurors was under felony indictment and complaining party did not lack due diligence in failing to discover the indictment earlier.

Tex. Emp'rs' Ins. Ass'n v. Guerrero, 800 S.W.2d 859 (Tex. App.—San Antonio 1990, writ denied). FACTS: Workers' comp case. Guerrero fell from tractor and chipped his tailbone. Led to herniated disc. TEIA (D) complains that P's counsel made an appeal for ethnic unity in his closing argument. P's counsel repeated stressed the need for the "community" to be "united."

HELD: this argument was a request for ethnic solidarity that cannot be plausibly explained away as a suggestion that the jury simply remember the things that "unite" Guerrero's case. A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, or national origin against parties, counsel or others. It is incurable reversible error for an attorney to suggest to a jury that they feel racial/ethnic solidarity with a party Rule 269 commands courts to correct improper argument sua sponte HELD: "We hold that incurable reversible error occurs whenever any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Our decision does not require a mistrial whenever a racial or ethnic argument is made. On the contrary, *we think the better course would be to await the jury's verdict.* If the offending party does not obtain a favorable verdict, a second trial might be avoided." - *i.e., this is incurable error*

Younger Bros., Inc. v. Myers, 324 S.W.2d 546 (Tex. 1959). What was the challenged jury argument in Myers? Why was it improper? Is reversal required? Objectionable argument by attorney was an unauthorized inference that the failure to file criminal complaint is an exoneration of a charge of civil fault. Burdens of proof are too different, can't equate criminal with civil Improper argument - unreasonable inference to suggest that because you weren't found criminally responsible that means you aren't civilly responsible.

HELD: we think the argument here, when considered in the light of the entire record, does NOT present a case of reversible error in the absence of an objection to the argument or a request that the jury be instructed to disregard the same. *Waiver because of a failure to timely object.* "The *prejudice resulting from such remarks can generally be removed by an admonition to the jury* from the presiding judge and we are unwilling to accede to the proposition that juries pay little or no attention to the instructions of trial judges. *We do not regard the improper argument made in this case as being beyond correction by means of a proper instruction."*

Brown v. Am. Transfer & Storage Co. 601 S.W.2d 931 (Tex.), cert denied, 449 U.S. 1015 (1980). FACTS: Deceptive Trade Practices case. P hired moving company to move to Alaska. The moving company told him how they would move his belongings and car, but their actual method was different, and a lot of his stuff was damaged in the move. His car had been driven 1200 miles and wrecked. Jury found for P. D objected that the issues were too broad and led to unfair trial. Court: Issues in deceptive trade practice cases should be submitted in terms as close as possible to those actually used in the statute. Can be altered somewhat to conform to issues of case.

HERE, the broad form language closely followed the statutes and was thus proper RULES: TRCP 277 was intended to abolish the "separate and district" jury submissions. Variance between pleadings and proof has rarely been the source of harmful error when broad form is used. To be reversible, the variance must be substantial, misleading, constitute surprise, and be a prejudicial departure from the pleadings. We do not mean that a broad submission of an issue will be revised simply because one or more acts which contributed to the injury was not particularly pleaded or proved. HOLDING: Here we do not find any variances between the pleadings and proof or other defect that would justify a different submission than the trial court used. Affirmed.

Acord v. General Motors Corp., 669 S.W.2d 111 (Tex. 1984) FACTS: Products liability case based on car accident. -P wife refused a blood transfusion due to religious beliefs and died. -P's attorney sought MIL to prevent anyone from bringing that up at trial. But then P's attorney brought it up during voir dire. TCt: MIL was denied; but neither party brought it up at trial. P appealed the denial of the MIL.

HOLDING: -the mere overruling of a motion in limine is not reversible error. -Had no impact on the case's outcome because the opposing party's lawyer never mentioned it. - -*Only the party that requested the motion in limine actually mentioned the evidence.* Can't say "trial court erred in allowing me to do this"

Proof outline

Have all the elements of your case, AND your opponent's case. Number documents in a manner that indicates how they satisfy elements. Cross things off your proof outline as you go through trial, for yourself AND your opponent. At the end of the day if your opponent has not put on any evidence for a necessary element on a claim or defense, as a matter of law they lose. Make a motion for an instructed verdict or JNOV motion at the end. EXTREMELY IMPORTANT TO USE A PROOF OUTLINE FOR STRATEGIC AND MALPRACTICE CONSIDERATIONS. There's a lot going on, and you want to make sure you cover all your bases.

Why do you have to designate your appellate complaints at the time the partial record is requested?

Have to designate your complaints up front to allow the appellees to challenge the sufficiency of the record to support. EX: You only designated your witnesses, not any of mine. So appellee has chance to designate witnesses/exhibits at appellant's cost. If it turns out to be unnecessary, the appellant can ask the ACt to tax the cost on the appellee. Taking a risk not to bring up the whole record. Trial counsel might think differently about what is reversible than appellate counsel.

TRCP 306a(5) 5.Motion, Notice and Hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.

Hearing to prove up the day when notice/knowledge of judgment was acquired (provided it was after 20 days but before 90). Must use "sworn" motion. Can hold this hearing at any time TCT still has plenary power. Need to get this finding of fact: when notice/knowledge occurred so the ACt knows the TCT still have jx

Gender or religion = level of scrutiny?

Heightened scrutiny EX: only men are subject to draft.

Tex. Emp'rs' Ins. Ass'n v. Garza, (Tex. Civ. App.—Corpus Christi 1977, writ ref'd n.r.e.). FACTS: Counsel said that he intended to harass witness on the stand and pissed off the judge.Trial judge made comments about TEIA counsel they argued belittled counsel that affected jury's verdict.

Held: Judge cannot make comments on the weight of evidence, but can control the courtroom. The remarks contained no intimation in favor or against the credibility of the evidence, but just a rebuke of counsel for threatening to harass a W. The judge was trying to control his courtroom and behaved appropriately. *Was error preserved? Why not?* Counsel failed to object to the trial judge's remarks. Therefore if there was error it has been waived. In order to later complain it is necessary for the complainant to make an *offer of proof on a bill of exception* to show what the W's testimony would have been. Otherwise there is nothing before the appellate court to show reversible error in the trial court's ruling Appeals court: everything that the trial judge said was relating to controlling the court. And besides, counsel didn't object and preserve. *Could you get a recusal here? Get another judge assigned?* -No. Judge is just trying to control courtroom; not a basis for reversal.

DISSENT Disagrees that strikes were racially motivated. Argues that peremptory strikes should be eliminated. Why?

History of peremptory challenges Started with Roman Empire - each side could strike 50 jurors because each side could propose 100 In early TX was necessary because jurors were chosen by sheriff Today, jurors are randomly selected, so strikes aren't necessary Also, NOT constitutionally required.

Missing Elements - The Hawes case was missing the good faith element of a fraudulent conveyance claim. How do you know that it was part of a partially submitted claim or defense rather than a totally omitted one?

How you know if it is a partial ground: only Some elements are included and are necessarily referable to this ground.

A subpoena may not be used in discovery to an extent, in a manner, or at a time other than as provided by the rules governing discovery.

However, discovery evidence may not be admissible at trial if violates rules of evidence (hearsay, etc.) Scope of what we can discover is broader than scope of admissibility

The "Expected Testimony" Requirement. In Ray as well as Burke, the motion for continuance failed to show the expected testimony of the client, so as to qualify as a proper motion for continuance for want of testimony.

However, in Ray the ACt affirmed the denial of the continuance But in Burke, ACt reversed. (Guy had a heart attack, so much better excuse for not being there)

Element Not Supported By Sufficient Evidence If an element of damages is not supported by legally sufficient evidence, it is not proper to include with other elements of damages that have evidentiary support in a single broad form damage question.

I.E. Objection! Broad form submission is not feasible on this ground. If all the damages inquired about in the broad form question are supported by sufficient evidence and recoverable under the law, broad form submission is proper Better method of submitting damages: Break down each category of damages and get a separate number for each. If found on appeal to be invalid, they can take out that one section, and affirm the rest. Avoids a total reversal. At charge conference, listen very carefully to the opponent's objections. Think about what happens if your opponent wins objection on separate submissions. Might want to agree to it, because otherwise it could be reversed in full instead of just in part. Could mean the difference of dealing with a case for years more because of reversal.

Purpose of a cross-point (p728) is to

If ACt finds that ground A that the TCT rendered JNOV for appellee weren't proper, the appellee wants to have a backup ground to support ground B. Should include ground B as a crosspoint. If appellee doesn't include ground B in appellee brief, then ACt will render judgment in favor of appellant if JNOV grounds found to be in error.

Does Casteel Apply in NonJury Cases? Proper method to preserve error in a bench trial when broad-form findings are made and broad-form findings are not feasible under Casteel:

If a complaint is one of the elements of a damages found in the broad form finding of fact is unsupported by the evidence, a specific complaint must be made in requested additional or amending findings. If the requested additional findings of fact do not draw the TCt's attention to this complaint it is waived. Under these circumstances, an appellant is limited to a sufficiency of the evidence challenge to the damage award as a whole and the appellate court need not decide if the evidence is sufficient to support each damage element encompassed within the broad-form finding (pain and suffering, mental anguish, loss of physical capacity, medical expenses, etc.)

Mother Hubbard and Res Judicata -

If a judgment includes a finality clause that is worded in terms of denying relief, are principles of res judicata fully applicable? Koepke (TX 1987) - TXSC concluded that the addition of "all relief requested in this case and not expressly granted herein be and is hereby denied" to a divorce decree did not bar a subsequent partition suit concerning military retirement benefits. While it is possible it only applies in this narrow circumstance, it would appear not to trigger res judicata

An affidavit is a

statement in writing of facts signed by the party making it, sworn to before one authorized to administer an oath.

Check v. Mitchell, 758 S.W.2d 755 (Tex. 1988) (per curiam). FACTS: Trial court signed modified judgment within 30 days of signing the original judgment. What effect did this have on appellate timetable?

If a judgment is modified, corrected or reformed IN ANY RESPECT, the time for appeal shall run from the time the modified, corrected, or reformed judgment is signed.

PRESERVATION OF ERROR

If a litigant wants to complain on appeal that the judge should have allowed a challenge for cause, that litigant must carefully follow the proper procedure, at the proper time, in the trial court.

Mandamus, Habeas Corpus, and Other Original Proceedings

If an order is not appealable (as with most interlocutory orders), but it needs to be reviewed before final judgment, consideration should be given as to whether to petition a higher court for relief through an original proceeding: writ of mandamus, habeas corpus, etc.

En Banc Reconsideration

If appeals court has 9 judges and they rotate; and you think 3 judge panel in your case got it wrong, you can make a motion for en banc reconsideration so that all will hear. Some appeals courts only have 3 judges, so there's no point in filing A party may file a motion for an en banc reconsideration, as a separate motion, with or without filing a motion for rehearing, within 15 days after the court of appeals' judgment or order is rendered. As a general rule, a rehearing en banc is not favored and should be used only when necessary to maintain uniformity of the court of appeals' decisions or in other extraordinary circumstances.

After granting review, the Court will dispose of the case by taking one of the following courses of action:

If at least six members of the Court so vote, it will grant review and may hand down a per curiam opinion without oral submission of the case, i.e., on the briefs without hearing oral argument. If the Court decides that oral argument will aid the Court, the Court will set the case for argument and render an opinion and judgment after hearing argument.

What happens when a TCT signs a 'second judgment" in a case?

If judgment #2 doesn't explicitly vacate judgement #1, it implicitly vacates it. Provided that the TCT still had plenary power to issue judgment #2. Several Texas Supreme Court decisions suggest that a second judgment was intended to supersede its predecessor, regardless of the nature of the modification.

So, in your discovery planning you need to think about your limited deposition hours; balance witnesses you'd like to have testify at trial and who's more than 150 miles from the county of suit. How do you make the determination whether you want a person to testify when you're in the pretrial state of litigation?

If that person is not represented by counsel, you can contact them if they'll talk to you informally and see what they would testify to. (You may or may not want to memorialize their testimony in a deposition after you talk to them). If that person is represented by counsel in a proceeding then it is unethical to contact directly, have to through lawyer.

Both the courts of appeals and the TXSC have original jx to issue writs and orders in aid of jx

If the TCT is threatening to take action that will interfere with the appeals court jx, then mandamus relief can be granted.

Parties must be afforded a reasonable amount of time for closing argument. That is a case specific inquiry.(But see TRCP 169(d)(3) for expedited trials) Assume the judge informs you of an allotted time for trying the whole case, but you use it all before jury argument. Does a judge abuse his or her discretion by not allowing the party to make its final arguments to the jury?

If the court sets time limits (EX: 8 hours), you might not get to close if you run out of time. Judge doesn't abuse discretion in denying closing arguments

Effect of Execution on Appeal if Judgment Reversed An appeal is not considered moot merely because the judgment has been satisfied due to enforcement proceedings conducted during the appeal.

If the judgment is reversed on appeal, the judgment debtor is entitled to recover damages from the judgment creditor equal to the fair market value of the property sold at an execution sale.

If you have an interlocutory appeal available to you under these statutes, and you don't take it, do you lose? Or can you wait and get a final judgment and raise that complaint on appeal from the final judgment that you could have brought an interlocutory appeal?

If the matter has become moot, you can't appeal from the final judgment. EX: Temporary injunction is just that, temporary. Doesn't survive judgment. So if you don't use interlocutory appeal after granting/denial of temporary injunction it's moot. Lose your right to make that complaint when you appeal from the final judgment.

You can designate a partial reporter's record. --It's expensive; you pay so much per page for the record. May not want to bring up the entire record; only need certain sections for reversal. But you MUST comply with rules and designate your complaints along with the partial record. Appellate court will presume that the partial record is complete for purposes of appeal.

If the party doesn't comply with the rules, and omit the complaint and other essential stuff, you automatically lose.

Statutory definitions: Use the definition the legislature used in the statute.

If the statutory COA includes definition of terms, then the jury charge should use that definition. Ex. "Unfair practice in the business of insurance means...."

Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). Aldridge presumption of judgment finality applies following conventional trial on the merits. (Chapter 9) FACTS: P timely filed a MFNT alleging jury misconduct. More than 30 days after signing of final judgment, P files an amended MFNT asserting another juror was disqualified (a second ground for MNT). The court denied MFNT. What is the effect of the untimely amended MFNT?

If trial court has plenary power it has discretion to consider the untimely amended MFNT or not. But the untimely amended MFNT filed after day 30 did NOT preserve error as to any new complaints raised by the new motion. RULE for MNT: can file a MNT up to 30 days after judgment is signed. And you can file a amended MNT in that same time period, so long as your previous MNT has not been ruled on. Once you get past 30 days, it's too late to file an amended MNT. But if you do, and TCT still has plenary power, the TCT can consider or ignore it. But an untimely MNT does NOT preserve complaints.

What must a party do to defeat the presumption of all the facts in favor of the winning party (if there are no FFCL after a bench trial) and prevail on appeal?

If you can show there's no competent evidence (AKA "less than a scintilla" or "no probative evidence"), or the evidence is conclusive against the finding, or the finding is immaterial

Oates v. Oates, 533 S.W.2d 107, 107 (Tex. Civ. App. 1976) FACTS: Wife (appellant) filed a petition for divorce and the trial court set a date for trial. -Husband (appellee) was properly notified of the trial date and his attorney responded by sending a telegram to the trial judge stating that it was a written motion for a continuance and that appellant's counsel had a previous trial commitment on the set date. -"Hey Judge! I've got a trial in federal court, so I can't make it. Sorry." *What are the two big problems here?* Lack of notice to the other party of the motion for continuance and lack of an affidavit. So, the trial court denies the "motion" for continuance for not being proper in form or conforming to requirements of the rules.

If you send a telegram (or today an email) to the court; an email/telegram is does not meet *the requirements of a Motion for Continuance*: in writing, supported by affidavit, filed with the court, and served on the other side in a timely fashion. *What is the discretion of the trial court in denying a continuance based on absence of counsel?* TRCP 253: Absence of counsel is not "good cause" for a continuance, BUT the trial court still has the discretion to grant a continuance or not. *What is the consequence (on appeal) of failing to comply with the procedural requirements for seeking a continuance of a trial setting?* -The presumption is the trial did not abuse its discretion in denying the motion. -So if you have a motion for continuance that doesn't comply with the rules and take it up on appeal, the presumption is that you lose; that the trial court did not abuse its discretion because you didn't have the motion in the proper form. Very important to comply with all the procedural requirements for motion for continuance. *HELD: There is no abuse of discretion here in the TCt denying the continuance, so the judgment is going to be affirmed.*

You don't have to put before the court the specific findings you are asking for, but Carlson has found there's a lot of power in the pen. Carlson is more inclined to just give the court the findings she has written as a party and ask the judge to sign. Whether the court will do that or not is up to the judge.

Implicitly, the trial judges are looking to the successful party to supply the judge findings in their favor. Judges don't write much; they are signers. EX: Have to have a draft motion with every order. They just sign.

Improper and Proper Explanations -

Improper explanations generally involve misstatements of the law, statements of the law not contained in the charge and not applicable to the factual situations, statements about legislative policy decisions that are not the province of the jury because the legislature has already passed the law and the jury's job is to follow it, and invitations to base the verdict on something other than the law. Trying to inject something into the law that isn't there. Proper explanations are accurate statements of the law.

Personal injury case. Attorney asked jury to follow Golden Rule ("do unto others...") but then morphed that argument into an improper appeal to the jury to put themselves in the shoes of the P and asked them what they would want if they were injured like the P was.

Improper: asking jury to decide case from improper viewpoint rather than admitted evidence.

Trial Court's Discretion What would you argue as a proponent of admitting testimony of a witness who has violated the rule to keep the testimony from being excluded?

In Drilex, p.206, dissenting justices: based on the record there was nothing that the expert learned by being in the courtroom; and his testimony was consistent with his previous deposition. So if there's no harm to the other side by the witness violating the rule, then the court does not abuse its discretion if it allows that testimony. If the witness's technical violation didn't prejudice the parties so the expert should have been allowed to testify.

Remittitur Procedure A request for remittitur may be included in a motion for new trial based on the articulated assertion that the verdict is excessive. Tex. R. Civ. P. 320, 324(b).

In MNT, alternatively suggest a remittitur of the amount you think is appropriate. The court may or may not agree. A complaint that a verdict is excessive or inadequate must be raised in point of error included in a MNT In responding to this complaint the trial judge may suggest a remittitur to the party who obtained a money judgment rather than granting a new trial.

NOTE 2: Cannot have general charges in TX! General charge asks the jury to decide who wins, so of course they know the legal effect of their answers.

In Texas we don't do that in civil cases. We ask the the jury controlling questions of fact based on the pleadings and the proof, and the court decides who wins based upon applying the law to the jury's answers.

The Finality Requirement The finality requirement is expressed in Section 51.012 of the Civil Practice and Remedies Code, which provides as follows:

In a civil case in which the judgment or amount in controversy exceeds $250, exclusive interest and costs, a person may take an appeal . . . to the court of appeals from a final judgment of the district or county court.

How should an appellate court review factual sufficiency when the standard of proof is clear and convincing?

In a factual sufficiency review, a court of appeals must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. The inquiry must be whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the state's allegations. A court of appeals should consider *whether disputed evidence* is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. If, *in light of the entire record*, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.

Scheduling orders - TRCP 166 What are pretrial scheduling or docket control orders? How might such an order affect the setting of a case for trial? (See TRCP 166)

In a lot of cases, particularly municipalities, the trial court will use scheduling orders (AKA docket control orders, pretrial conference orders - all the same thing). Under TRCP 166, trial courts can set a schedule for a case that is customized to that case; those deadlines prevail. 166 lists a ton of things that a court might consider it its scheduling order, and ends with a "catch all" provision of any other matters that might aid in the disposition of the matter. Can set deadlines for pleadings, motions, discovery, time to designate experts, lists of witnesses, proposed jury charge, date of trial, etc. Usually there are more cases on the docket than could possibly be dealt within that time. Why would the court put more cases on the two week docket than it could possibly handle? Many cases are settled on the courthouse steps as trial nears. A lot of times your case is just not reached; but you never know.

Evolving Reliability Standards - After Gammill, the SCt decided the Kumho Tire case. Court ruled that a Daubert relevance and reliability analysis should be applied to all types of expert testimony even though not all of the Daubert factors will apply in all cases.

In addition to Daubert factors, reliable expert testimony must be based on a probability standard, not mere possibility

Consecutive Motions: Dual Grounds.

In addition to holding that Burke qualified for a continuance under Rule 252 for a continuance for want of testimony, the court of appeals holds that the movant's own inability to attend trial is a ground for continuance under Rule 251.

RULE 277. SUBMISSION TO THE JURY

In all jury cases the court shall, *whenever feasible*, submit the cause upon *broad-form questions*. The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict. *Inferential rebuttal questions shall not be submitted in the charge*. The placing of the burden of proof may be accomplished by instructions rather than by inclusion in the question. In any cause in which the jury is required to apportion the loss among the parties the court shall submit a question or questions inquiring what percentage, if any, of the negligence or causation, as the case may be, that caused the occurrence or injury in question is attributable to each of the persons found to have been culpable. The court shall also instruct the jury to answer the damage question or questions without any reduction because of the percentage of negligence or causation, if any, of the person injured. *The court may predicate the damage question or questions upon affirmative findings of liability*. The court may submit a question disjunctively when it is apparent from the evidence that one or the other of the conditions or facts inquired about necessarily exists. *The court shall not in its charge comment directly on the weight of the evidence or advise the jury of the effect of their answers, but the court's charge shall not be objectionable on the ground that it incidentally constitutes a comment on the weight of the evidence or advises the jury of the effect of their answers when it is properly a part of an instruction or definition.*

Interchangeable Juries

In counties having 3 or more DCTs or in counties in which two district courts have jx and in which both district judges have agreed to make use of interchangeable jury panels, persons summoned for jury service comprise a general panel for service as jurors. Jurors summoned to central jury room. In smaller counties with one court, just summoned to the court. After serving on a jury panel in a particular court, jurors are returned to the general panel and enrolled at the bottom of the list in the order of their respective return. However, a county with a population of 2M persons or more, a juror removed from a panel for cause, by peremptory challenge, or any reason, is dismissed from jury service rather than returned to the general panel.

NOTE 1: Should negligence, inadvertence or mistake of counsel ever be grounds for a new trial when the case has been determined by an adversary process?

In criminal cases, IAC claims can happen, but hard. In civil cases, Incompetence of Counsel - general does NOT support the basis for a motion for new trial. Exception: parental termination cases. Very serious penalty losing children.

Alignment of the Parties

In multiple party cases, it shall be the duty of the trial judge to decide whether any of the litigants aligned on the same side of the docket are antagonistic with respect to an issue to be submitted to the jury. If so, the peremptory strikes should be "equalized". This should be requested by counsel before the exercise of peremptory challenges. The co-parties must be antagonistic with respect to an issue that will go to the jury to be entitled to equalizing peremptory strikes. The existence of antagonism is a question of law.

Thinking on Your Feet. Imagine the following situation: you are standing-in at the request of a non-resident attorney in a district court in your home city. The attorney has filed a motion for continuance and affidavit by mail, and you are seeking to ensure that it is granted. Your opponent points out that the form of continuance drafted by the attorney omits to state that "the continuance is not sought for delay only, but that justice may be done," and argues to the court that it should be denied for noncompliance with Civil Procedure Rule 252. What do you do? (Based upon an experience of one of the authors of this book.)

In old days, write the sentence into the motion by hand right there and ask the court to consider it. Today, courts often only allow electronic filing (there are some exceptions). A lot of judges now won't accept filings that have not gone thru the e-filing system Good to have someone at your office that can quickly modify and refile.

You don't have to specifically point out to the trial court that you think that their fact finding is not supported by the evidence.

In other words, you can make a complaint about the legal or factual sufficiency of the evidence for the first time on appeal. But if you seek an amended finding, you should request it within 10 days.

EB Superseded by rule change: Added to TRCP 277:

In part because there are collateral consequences of termination of parental rights based on child endangerment - having your parental termination rights terminated as to a previous child is a statutory ground to have your parental rights terminated as to other children. Thus, it is very important to know the grounds of parental termination, whether it is endangerment or not. Thus, the "broad form" submission does NOT apply to parental termination. Must at least have a separate question for each statutory ground in parental termination suit. But E.B. still applies in every other civil area, it still applies.

Probate Matters The probate test of appealable finality is very different from the normal final judgment rule.

In probate proceedings, the order is final and appealable if it discloses of the main controverted issue concerning which that part of the proceeding was brought, provided it finally disposes of and is conclusive of the issues or controverted questions for which that particular part of the proceeding was brought.

Third Type of Equitable Bill of Review A third type of bill of review involves cases in which the defendant was not served with petition.

In such cases, Texas courts hold that the three-pronged Hagerdon test is relaxed because a defendant who proves lack of valid service is not required to plead or prove that he or she was prevented from making a meritorious defense by fraud, accident or mistake of the opposing party. In "no service" cases, there is no duty to answer and, thus, no negligence, as a matter of law. Thus, basically just have to prove you were never served and that's it.

Relaxation of Broad-Form Principles: What has the HEB decision done to mandatory broad form submission? TXSC in HEB tells trial judges in the this case is if you have any question of the validity of a ground, or the evidence to support a ground, or the law is unsettled in that area, broad form submission is unfeasible. Separate it out, and ask in a separate jury question. Why? That way, if it goes up on appeal, and the appeals court finds that it is not a valid ground, they can ignore the jury's answer on that ground and reform the judgment in a manner that is consistent with the jury's findings on the valid grounds. Otherwise, if it can't tell whether the jury found on a valid ground or an invalid ground, they have to remand because they can't risk that the jury's decision is based on an invalid ground.

In the vast majority of cases, the failure of a TCt to submit questions in broad form will NOT be reversible error. HOWEVER, in Westgate case the trial court's failure to submit in broad form produced a demonstrably different result than if a broad form question had been used. The difference in the "before and after" values found by the jury in answering two questions was $200k Thus, the damages were clearly measurable. RARE. TEST: must show that the trial court's failure to submit in broad form produced a demonstrably different result than if a broad form question had been used. 99% you won't be able to make out this test So, think of how that effects a trial judge: if I submit in granular questions the chances of it being reversible error are slim to none.

Weingarten case FACTS: P pulled on carts at grocery store and is knocked down. A motion for instructed verdict can be made by the D after the P rests. The D argues that the P has put on "no evidence" of any probative value that the carts were defective. Motion for instructed verdict can be oral or written. Court can grant instructed verdict on its own motion or on motion of a party.

In this case, the motion for instructed verdict was denied because P's own testimony was some evidence

Appellate rule 56.1 talks about things TXSC considers in taking jx.

Includes whether there is an error of law so important to law of TX it should be corrected. --Thus, you should pitch your case to the TXSC in terms of how it affects TX law, NOT how it affects your client. --New area of law; ACts in conflict; etc.

Who is excused from paying?

Indigents - must establish and comply with timeframe and notice requirements. Of course, in reality, most indigents don't have lawyers.

Inferential Rebuttal Defense (IRD)

Inferential rebuttal defenses - defensive theories which are factually inconsistent with one or more of the elements of a plaintiff's ground of a recovery. They are NOT affirmative defenses. Denies one or more elements of a P's COA by asserting a factual theory which contradicts some necessary part of the P's claim. Hence, to prove all elements of his claim, *the P must dispose the inconsistent theory.* EX: P claims that the contract promised 20% commission on land sale. EX: SOL would be an affirmative defense. Doesn't disprove any elements. Burden of proof on D to show limitations applies EX: But, if D argued that the commission promised was actually $100/day, NOT 20%, this would be an inferential rebuttal defense. The D has denied the charge, but in a fact-specific way. KEY: BOP stays on P now to prove that it is actually 20%, the P must convince the jury that the D's claim of $100/day is false. Didn't happen the way the P said, it happened this way. But key difference with affirmative defense:

The typical court's order in response to a motion in limine does not amount to an absolute prohibition upon the use of the allegedly offending question or statement.

Instead, it orders the opponent not to make the utterance until and unless he obtains a hearing outside the jury's presence and persuades the trial court that it should be allowed. Rulings on admission of evidence often depend upon events in the trial, and the admissibility of evidence can change through the course of the trial. Even evidence that is ordinarily flatly inadmissible can become admissible if the opposing attorney "opens the door" to it. See Ex parte Jones, 160 Tex. 321, 331 S.W.2d 202 (1960).

What are "surplus instructions"?

Instructions the jury doesn't need to answer the question

Trial judge does NOT have to make findings of fact on matters that are

stipulated, admitted (EX: requests for admission), immaterial (cannot alter legal effect of the judgment), and are not required to make evidentiary findings. Just have to make controlling findings of fact regarding the ultimate issue. Of course, when asked to make amended findings, the judge is not required to make contrary findings, unless the judge feels the evidence supports that different finding.

Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). FACTS: The juror told another juror (Fred) at the drinking fountain that the previous jury didn't award any damages and that she didn't believe in awarding damages in cases like this. P's attorney during VD had asked if anyone here can't award verdicts in like this; argued that the juror gave a false answer. In order to prove that, is the other juror's (Fred's) affidavit that juror 1 said that admissible? Or can you say that is part of the deliberation process? (which means it is admissible) What about statements made to jurors to one juror to another another during trial? Is that admissible, or is that considered protected deliberations?

Internal jury deliberations are NOT admissible evidence, unless there's an outside influence. Juror comments to each other during trial are not "deliberations," so they are admissible. In theory the jurors are told not to discuss the case with other jurors until they've heard all the evidence and are in formal deliberations when they've retired to deliberate as a body. All jurors together. This case asks "what do we mean by deliberations?" What we mean by deliberations is formal deliberations when the jury's retired after the close of evidence to look at the charge and answer the questions. Thus, the statements here ARE admissible to show juror misconduct because they were NOT made during "deliberations." Court: juror1 may have misunderstood the meaning of "verdict" during VD; may have thought that meant "did you award any money?" Lay persons typically don't know the difference between a verdict and a judgment. Also, when she said "I don't believe in giving money in cases like this"; was that because of this case's specific facts, or was it all cases? On the issue of juror1's influence during formal deliberations, that is inadmissible. --Here, There was no outside influence. Everything was the jurors themselves. HERE: Does not meet the burden to warrant a new trial because while misconduct occurred, it probably wasn't material. Just because she took positions contrary to one side that doesn't mean it is reversible error.

Interrogatories

Interrogatories = written questions directed by one party to another party. Interrogatories are placed before the jury the same way as depositions, by reading them on a question and answer basis (subject to any evidentiary objections).

Offer of proof:

Introduction into the record of excluded evidence in order to make an appellate record. So the appellate court can see whether or not it was admissible and whether it was harmful error to exclude it. Can't tell unless you've put it into the record. Appellate courts do not entertain new evidence, have to get it into the record. Used to be called "an informal bill of exception."

[3] Invoking "The Rule"

Invocation of "the rule" may follow at this stage if not done earlier "The Rule" - describes the practice of asking the trial judge to order witnesses to remain outside the courtroom and refrain from discussing the testimony with anyone other than the attorneys. Parties and other persons in the discretion of the court are excused from participation in the rule. The purpose is to avoid having one's opponent's witnesses hear each other's testimony and the questions that elicit it, so that they are unable to make their testimony any more consistent that it would be spontaneously Thus, a party with few witnesses opposing a party with many might desire to invoke the rule, while a party with many witnesses would not, as a matter of trial strategy Just say, "your honor I would like to invoke the rule." If the court will so order ,it may be tactically wise to invoke it before opening statements or even before VD.

Issues Presented or Points of Error Counsel may follow the former "point of error" practice or the more modern "issues presented" approach when briefing its appellate complaints. Which form of complaint is more likely to persuade the Court to take the case on the basis it is necessary to develop Texas jurisprudence?

Issues better suited to answer question that TXSC is looking for in granting petition for review: why is this important to jurisprudence of the state? The statement of an issue or point will be treated as covering every subsidiary question that is fairly included.

Deemed Finding of an Omitted Element Rule 279 deals with two different situations: Scenario 2 2) What happens when some elements of a ground (recovery or defense) are in the jury charge, but others are not?

It depends if there is an objection or request regarding that omitted element. 1) If objection, then under Payne: reverse and render P take nothing as element not included in charge over charge objection/request 2) If there is an omitted element of a partially submitted ground and NO ONE OBJECTS to its non-submission or requests its inclusion, then the trial court may be asked (after the jury returns its verdict) to make a finding on that element IN SUPPORT OF THE JUDGMENT. Tex. R. Civ. P. 279. 3) If no one requests the trial judge to make the finding on that omitted element, the appellate court will *deem that element to be found in support of the judgment* (for plaintiff or defendant). there *must be sufficient evidence to support the deemed finding* Exception: when something is "conclusively established" by the evidence (that rare state of nirvana) when "reasonable minds cannot differ" as to that fact that's been conclusively established. No need to go to the jury.

What would have happened if there had been no evidence to support a finding on the missing element?

It doesn't get deemed.

Brazos Elec. Power Coop., Inc. v. Callejo, 734 S.W.2d 126 (Tex. App.—Dallas, 1987, no writ). "[A]ny [timely filed] POST-judgment motion that, if granted, would result in a *substantive change* in the judgment as entered is a motion within the contemplation of rule 329(b)(g), and is, therefore, effective in extending the time to perfect the appeal" and to extend plenary power. So, while the text of 329b says MNT and Motions to modify the judgment as "extending motions" that extend plenary power and the time to file an appeal, it's actually larger than that: ....

It is ANY post-judgment motion that, if granted, would result in a substantive change in the judgment. HERE: This was a post-judgment motion for judgment on the verdict, but it is made AFTER a JNOV had been signed. This case does NOT stand for the proposition that a motion for judgment on the verdict is an extending motion; UNLESS it's filed after the judgment and would change the judgment in a substantive way.

Motion to suppress

It is filed after a particular item of information is withheld by the opponent from discovery, it becomes apparent that the opponent intends to call the witness in question or to offer the evidence at trial. Ex: A witness (particularly an expert) whose name was not listed in response to a properly worded interrogatory. Ex: An expert witness who an opponent seeks to exclude as unreliable as a matter of law.

NOTE 2: Use of Hyperbole

It is part of how we express ourselves; doesn't have to be supported by evidence.

Withdrawal of Counsel What happens if a lawyer seeks to withdraw immediately before trial? Maybe the client isn't paying, or plans to commit perjury. Do you have a right to withdraw from a case?

It is within the court's discretion upon counsel showing "good cause" to permit counsel to withdraw. TRCP 10 When the ground for continuance is absence of counsel because they've withdrawn, the client moving for continuance must show that the failure to be represented at trial was not due to the client's fault or negligence. EX: I fired my lawyer so I could get a continuance. EX: My lawyer withdrew because I wasn't paying him. When the trial court allows an attorney to voluntarily withdraw, it must give the party time to secure new counsel to investigate the case and prepare for trial. But if you didn't properly structure your retainer agreement, and the client doesn't pay and you are close to trial, the court may deny a request to withdraw. You will be obligated to represent the client. So, it is important to structure a retainer agreement where the client pays some amount up front; and then the client must replenish the retainer in X days after they receive your monthly bill so that you're always ahead of being paid. When withdrawal is not with the client's consent,

Motion to excuse a witness from the "rule"

It may also be made by an attorney who wishes to have one of his or her witnesses in the courtroom during trial. ("The rule" refers to the procedure for sequestering witnesses).

Motion for leave to amend pleadings

It may be made at this stage or during the trial itself.

Why do these avoidance doctrines exist?

It may be misleading to call them "avoidance doctrines," since they are necessary to a rational appellate jurisprudence and are properly invoked in the overwhelming majority of the cases in which they are used. Do you agree? Why or why not?

Motion to quash subpoena

It may be used by parties or third persons to avoid the need for compliance with a subpoena when the subpoena is defective.

NOTE 4: have to have a party's motion and hearing to support a JNOV, unlike directed verdict which can be raised

sua sponte

Following Columbia, an order granting a new trial which fails to specify the reasons behind it is

subject to correction by mandamus.

Preparation and Filing of Appellate Record The appellate record must do the following:

It must contain everything needed to show perfection of the appeal so that is demonstrable that the appellate court has jurisdiction. From the standpoint of the appellant, it must include everything needed to show a trial court occurrence or ruling which constitutes harmful error and preservation of error. From the standpoint of the appellee, the record should include everything required to show waiver or harmlessness of the errors relied on by the appellant. EX: Appellate's complaint is TCT erred in excluding witness Jones. But appellees know that 4 others testified on that too. So appellee will want to make sure that this is included to show that lack of Jones was harmless.

The Texas Supreme Court has held that determining whether jury misconduct occurred is a question of fact for the trial court, and if there is conflicting evidence on this issue the trial court's finding must be upheld on appeal.

It phrased the same rule slightly differently when it stated that the trial court's determination as to whether jury misconduct occurred is ordinarily binding on the reviewing courts and will be reversed only where a clear abuse of discretion is shown.

A juror may not testify as to any matter or statement occurring during

the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith, except that a juror may testify whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. Tex. R. Civ. P. 327(b). Tex. R. Evid. 606(b)

An affidavit indicating inability to attach adequate materials might be sufficient, but only if

the court had failed to cooperate in assisting in production of the actual documents.

Note: The same party cannot file for rehearing after it files a petition for review unless

the court of appeals modifies its opinion or judgment.

In cases of concurrent jurisdiction, the petition must be presented to

the court of appeals unless there is a compelling reason not to do so.

Generally mandamus writs are conditionally granted, meaning that

the court that grants mandamus will not officially issue writ unless the trial judge doesn't comply. If the judge doesn't comply, s/he is in contempt.

Why is it necessary for an appellant to designate its appellate complaints at the time the partial reporter's record is filed? What result if there is a failure to comply with this requirement?

the court will presume that the omitted portions of the record are relevant to this appeal and that the missing evidence supports the trial court's judgment. Appellants' failure to comply with Rule 34.6(c) is fatal to their appeal. A partial reporter's record unaided by the presumption of Rule 34.6(c)(4) does not provide us with a sufficient record to determine whether the Philadelphia American policy covered any appellant, and, if so, whether the trial court erred in refusing to credit appellants with the amounts paid Ozgunduz under the policy. Because appellants did not comply with Rule 34.6(c), or bring forth a complete reporter's record, we presume the omitted evidence supports the trial court's judgment denying the offset credit and we overrule appellants' point.

The perfection of an appeal will not ordinarily suspend

the enforcement of a judgment. Absent the posting of a appellate security (supersedeas bond, cash deposit or other alternate security), the judgment winner may invoke procedures to enforce and collect the judgment while an appeal is pending. Appellate security not required but desirable as it stays the enforcement of the judgment during the appeal. Winner - judgment creditor Loses - judgment debtor

If the defendant makes a motion for directed verdict at the close of Defendant's evidence, this motion must be evaluated in light of

the entire record (including the proof, if any, D put on).

Whether you have express, deemed, implied findings, any findings by the trial court or the jury; all findings are subject to attack on appeal on the basis that

the evidence doesn't support the findings. Either that there's no competent evidence, or the weight of the evidence is overwhelmingly against the findings.

Procedures to reinstate a dismissed case exist, but counsel is not entitled to reinstatement unless the court finds that ...

the failure of a party to take the required action was *neither intentional nor the result of conscious indifference* but was due to accident or mistake or other reasonable explanation

In computing the 30-day minimum period, .... IMPORTANT

the first day of the period is excluded and the last day of the period is included. Tex. R. Civ. P. 4. The 30-day minimum period includes Saturday, Sunday, and legal holidays. If your due date falls on a Saturday, Sunday, or legal holiday, your due date is the next work day. "Legal holiday" - the days that the State of Texas recognizes as legal holidays

The petition in an original proceeding usually combines

the function of a pleading at the trial level and the evidence. It must both ask for and show entitlement to the relief sought.

In a jury trial, the jury makes findings of fact. In a bench trial,

the judge makes fact findings as the trial judge is the trier of fact. In a bench trial, the trial judge is the sole judge of the credibility of the witnesses and the weight given to their testimony. The court sits as the trier of fact as well as of the law.

When deciding whether a correction is of a judicial or a clerical error, the court looks to

the judgment actually rendered, NOT the judgment that should or might have been rendered. The court can only correct the entry of a final written judgment that incorrectly states the judgment actually rendered. Thus, even if the court renders incorrectly, it cannot, once it loses plenary power, alter a written judgment which precisely reflects the incorrect rendition. Policy favors finality of judgments.

the trial court may decline to permit the judgment to be superseded if

the judgment creditor posts security ordered by the trial court in an amount and type that will secure the debtor against any loss or damage caused by the relief granted the judgment creditor if an appellate court determines, on final disposition, that the relief was improper. Appellate Rule 24.2(a)(3) Exceptions; trial judge may refuse to allow supersedeas in a conservatorship or custody case. -government entities; - public licenses Certain judgments may not be superseded (revoke law license, liquor licenses for example)

A *premature motion for new trial* may extend the appellate timetables when the motion is denied, either expressly or by operation of law. It is considered filed on the day ....

the judgment was signed. Background: TCT at the end of the trial orally states what it is inclined to do (judges do this). "I'm inclined to enter judgment on the jury's verdict; I'm inclined to deny this and grant that...so we'll have a hearing on the XYZ and we'll take up post judgment motions." If one party files a MNT before judgment. Does it count? Caselaw: yes it counts. Premature MNT is treated as if it was filed on DAY ZERO (the day the judgment was signed). Legal fiction.

Tex. R. Civ. Evid. 606(b) and Tex. R. Civ. P. 327(b) prevent a juror from testifying that the jury discussed improper matters during deliberation. The rules contemplate that an "outside influence" originates from sources other than

the jurors themselves.

NOTE 3: We have checks and balances in our system in that when a jury returns a verdict, either side could request that

the jury be polled. When the jury is polled, each juror is individually asked whether the answer to each question is their verdict. If they say no, the jury can be returned to further deliberate if they don't have a sufficient number to support the verdict.

If you have BOP (almost always P) and the jury goes against you, you make a motion for a new trial and argue

the jury went "against the great weight and preponderance of all this wonderful evidence" we supplied them.

327(b) A juror may NOT testify as to any matter or statement occurring during the course of

the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict concerning his mental processes in connection therewith,. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes. EXCEPTION: a juror may testify whether any *outside influence* was improperly brought to bear upon any juror.

The trial is to freely allow trial amendments, unless ...

the opponent to the pleader shows it will be prejudiced by the amendment.

The absence of a material witness is 'sufficient cause' for granting a continuance, but only if

the party used diligence to procure the testimony of the witness.

Due Diligence Requirements. The absence of a material witness is sufficient cause for granting a continuance, but only if ...

the party used proper diligence to procure the testimony of the witness. In order to show the necessary diligence, the attorney must consider whether a witness resides within the subpoena range of the court, so that the witness can be compelled to appear and testify at trial. If so, the witness must be subpoenaed. If the witness does not reside within subpoena range, the attorney may be required to take a deposition in order to eliminate the risk that the witness may be unavailable at trial. See Tex. R. Civ. P. 176.3(a) (subpoena range does not extend "to county that is more than 150 miles from where the person [subpoenaed] resides or is served"); see also Tex. Civ. Prac. & Rem. Code § 22.002 (subpoena range is "150 miles or less from a county in which a suit is pending").

To determine whether an alleged error in the jury charge is reversible, the reviewing court must consider

the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Alleged error will be deemed reversible only if, when viewed in the light of the totality of these circumstances, it amounts to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause the rendition of an improper judgment. Tex. R. Civ. P. 434 HERE, [in Island Recreation], if the absence of an instruction on WAIVER was detrimental to either party, it was Island. Nonetheless, Island received a favorable jury verdict. Republic, as the complaining party, has failed to demonstrate harm from an alleged error from which it benefited. When the totality of this case is considered, we find no reversible error on the part of the trial court in broadly submitting the case to the jury.

Plenary power -

the power of the court to change its judgment; any action it takes afterward it is a nullity. Policy - it's a good policy to have finality in judgment; don't want judgments open to change forever into time. If you want to change, should use appeals process, otherwise judgment should be final and enforceable. EXCEPTION - Nunc Pro Tunc - can correct clerical error in the judgment, but NOT judicial errors once plenary power

Calculating Post Judgment Interest The current rate of postjudgment interest is tied to

the prime rate as published by the Board of Governors of the Federal Reserve System on the date of computation, but in any event not less than five percent nor more than fifteen percent. Tex. Fin. Code § 304.003(c)(2).

The "Open Door" or "Invited Argument" Doctrine

the principle that an argument which invites or justifies the other party's response creates a right of reply, even though the subject would ordinarily be outside the realm of proper comment. an argument, which is provoked or invited by an opponent's argument, is not objectionable when it is directed to the subject matter introduced by the opponent, even though without such provocation, it might have been improper. Can legitimize an argument that would otherwise have been improper.

A failure of a trial court to prepare and file findings of fact or conclusions of law under Tex. R. Civ. P. 296, or additional or amended findings of fact or conclusions of law under Tex. R. Civ. P. 298, will not call for a reversal of the trial court's judgment, if

the record before the appellate court affirmatively shows that the complaining party has suffered no injury in the premises. For there to be reversible error, the movant must show harm from the court's failure to make findings. Usually will just order trial judge to make fact findings, and abate the case in the meantime. Unless there's only one ground, which means fact findings aren't necessary because you don't have to narrow your grounds.

A technical failure to make payment of the nominal fee in a timely manner may not result in waiver of the right to a jury trial when ...

the record demonstrates that the granting of the request would not interfere with the orderly handling of the court's docket, delay the trial of the case, or operate to the injury of another party.

Determining Frivolous In determining whether sanctions are appropriate, the court considers

the record from the appellant's point of view at the time the appeal was filed.

In determining whether sanctions for frivolous appeal are appropriate, we carefully consider

the record from the appellant's point of view at the time the appeal was filed. Among the factors we consider are *whether the appellant had a reasonable expectation of reversal and whether it pursued the appeal in bad faith*.

Compliance with the "30 days in advance" timetable gives rise to a rebuttable presumption that

the request was made "a reasonable time before the date set for trial" On the other hand, a demand for jury trial with payment of the appropriate fee 30 days in advance is not necessarily timely as a matter of law. -However, a court may choose to allow the party a jury trial even if the request was not within the rule's timetable

Extension of Time: Record Motions to obtain extensions of time to file the record are not necessary under the current rules because

the responsibility for filing the record is on court personnel. See Tex. R. App. P. 35.3. No longer the responsibility of lawyers to see that the record is timely filed. Your responsibility is to timely designate and pay for it. But it is the responsibility of the clerk to file it on time. Since lawyers have no sway on court reporter, it was unfair to have responsibility on them. So in 1999 the responsibility was shifted to appellate clerk to make sure it is timely filed. If it isn't filed timely, the ACt can have a hearing and send an order to TCT court reporter. Can even be held in contempt and be put in jail, work on it in jail. Finished quickly.

If any party timely files a notice of appeal, another party, who seeks to alter the trial court's judgment, may file a notice of appeal within

the same period or within 14 days after the first filed notice of appeal, whichever is later. Tex. R. App. P. 26.1(d). Very liberal ability to correct; as long as before the appealing party's brief is filed.

Instructed verdict is proper when, and only when,

the state of the evidence is such that a reasonable person could come to only one conclusion with regard to the matter in dispute. Method of review places all facts in the light of the nonmovant

Evidentiary Review - Another consequence of a party's failure to object to an improper jury charge that misstates the applicable law, is that

the sufficiency of the evidence is reviewed in light of the question actually submitted, not the question the trial court should have submitted. In contrast, if a party preserves the party's complaint about the inclusion of an improper legal standard in the jury charge, the sufficiency of the evidence will be reviewed under the correct legal standard. If there's an argument on appeal that's been preserved that the weight of the evidence doesn't support the jury's finding, the appeals court will review under the standard that actually went to the jury.

(h) If a judgment is modified, corrected or reformed in any respect [by the TCT], the time for appeal shall run from

the time the modified, corrected, or reformed judgment is signed, but if a correction is made pursuant to Rule 316 after expiration of the period of plenary power provided by this rule, no complaint shall be heard on appeal that could have been presented in an appeal from the original judgment.

A trial court's order overruling an untimely new trial motion cannot be the basis of appellate review, even if

the trial court acts within its plenary power period But, the trial court may, at its discretion, consider the grounds raised in an untimely motion and grant a new trial under its inherent authority before the court loses plenary power.

Factual sufficiency complaints can only be determined by (which courts)?

the trial court and the court of appeals. The TXSC lacks jx to conduct a factual sufficiency review. They decide questions of law, they don't weigh evidence.

The Trial Court May Enjoin the Judgment Debtor From Dissipating Assets During The Appeal

the trial court can enjoin the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment [pending appeal], but the trial court "may not make any order that interferes with the judgment debtor's use, transfer, conveyance or dissipation of assets in the normal course of business." The trial court should determine whether the judgment debtor is likely to dissipate or transfer its assets to avoid satisfaction of the judgment before entering the injunction. In the absence of that proof, a trial court abuses its discretion entering the injunction.

Notice of Appeal File notice of appeal with

the trial court clerk, with a copy filed with the court of appeals that has jurisdiction along with a docketing statement. Serve a copy of the notice of appeal to all parties to the trial court's judgment. Mandated electronic filing. Notice is filed with TCT clerk, and a copy is filed with ACt clerk.

Ordinarily, the jury's answers to the charge questions forms the basis for

the trial court's judgment. When the jury answers the jury charge becomes the verdict. Which typically becomes the basis for the judgment. Unless there's a legal problem with the verdict.

Formal defects in Continuance Motions Failure to comply with the formal requirements establishes a presumption that

the trial judge did not abuse his or her discretion in denying the continuance motion. *But this is not applied to lay movants*

In Montelongo v. Exit Stage Left, Inc., the El Paso Court of Appeals held that "net worth" should not include

the value of an exempt homestead in calculating the judgment debtor's assets and should not include the judgment in determining the judgment debtor's liabilities. 293 S.W.3d 294 (Tex. App.—El Paso 2009, no pet.).

Personal Property: Appellate security calculated by

the value of the personal property.

Issues are only immaterial if

their answers can be found elsewhere in the charge or if they cannot alter the effect of the verdict." On the other hand, jury questions/answers are immaterial if they cannot affect the verdict.

The Temporary Injunction Exception The exceptions (those set forth in Section 51.014) exist because

there are some categories of interlocutory orders that are so important and so dispositive of substantial rights that they need to be reviewed immediately, during the pendency of the action. Temporary Injunction = Appealable. Temporary Restraining Order = Ordinarily not appealable (expires by its own terms)

Clear Abuse of Discretion to Support Mandamus "Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law when

there is no other adequate remedy by law." Johnson v. Fourth Ct. of App, 700 S.W.2d 916 (Tex. 1985) (orig proceeding).

alter ego applies when

there is such unity between corporation and individual that the separateness of the corporation has ceased, an alter ego finding is relevant to the determination of the judgment debtor's net worth.

Alter Ego & Net Worth In reaching the net worth, the court may use alter ego. "[A]lter ego applies when

there is such unity between corporation and individual that the separateness of the corporation has ceased." Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986).

An issue should only should go to the jury if

there's a controverted jury question. Don't need to go to jury if there's "no evidence" or if the evidence is so overwhelming and uncontroverted.

you cannot appeal an interlocutory order unless

there's a statutory basis. If there's a statutory basis, you MUST bring interlocutory appeal if it is something that might become moot or is prohibited from being raised as appeal from final judgment

Internal jury deliberations are NOT admissible evidence, unless

there's an outside influence.

Mistrial -

there's no judgment, so there's nothing to appeal. That's why this is a mandamus proceeding (it's an original proceeding)

However, the imposition of so-called "death penalty" sanctions are reviewable because

these sanctions preclude a decision on the merits of a party's claim or defenses, the remedy by appeal is inadequate.

Findings of Fact and Conclusions of Law Conclusions of law are made by a trial court when requested, BUT...

they are NOT binding on an appellate court. Appellate court is a law-correcting body.

Less common: after D closes, P can move for directed verdict to find for P if

they are confident they have put on evidence for every element.

How to show prejudice from a trial amendment proposed by opposing counsel:

they didn't plead it, we didn't know about it, we don't have witnesses, we didn't do discovery on it, etc.

While the TRCP 277 allows damage questions to be conditioned on a finding of liability, otherwise conditioned questions are very rarely allowed because

they have the effect of letting the jury know the legal effect of its answers.

Most litigants are hesitant to seek mandamus relief because

they know when they come back the same judge they just got mandamus against will still be deciding case. Depends on the judge as to whether they are offended or not. Can't recuse judge just because you get mandamus against them.

If the jury answers are not "fatally conflicting,"

they should be reconciled and may form the basis for a judgment.

(a) A motion for new trial, if TIMELY filed, shall be filed prior to or within ____ days after the judgment or other order complained of is signed.

thirty

If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within ______ after filing the original request (so ten days after they're tardy), file with the clerk and serve on all other parties in accordance with Rule 21a a "Notice of Past Due Findings of Fact and Conclusions of Law" which shall be immediately called to the attention of the court by the clerk.

thirty days Have to file a request, and then if the court doesn't do it, have to file a reminder if the court doesn't do its job. Such notice shall state the date the original request was filed and the date the findings and conclusions were due.

"Plenary Power" and the Effect of Post-Judgment Motions: A trial court retains jurisdiction over a case for a minimum of thirty days after signing a final judgment. Tex. R. Civ. P. 329b(d). During this time, the trial court has plenary power to change its judgment. The period of plenary power may be extended, however, by

timely filing an appropriate postjudgment motion. Therefore, the filing of a motion for new trial, Tex. R. Civ. P. 329b(e), or a motion to modify, create or reform the judgment, Tex. R. Civ. P. 329b(g), within the initial thirty-day period extends the trial court's jurisdiction over its judgment up to some later date, depending on when or whether the court acts on the motions.

If there's a proper request for fact findings, and the TCt doesn't make them, then file a

timely reminder

Purpose of Voir Dire -

to elicit facts that will enable counsel to exercise peremptory challenges in an intelligent manner as well as to ascertain that jurors possess the legal qualifications to serve, and are not by bias or otherwise disqualified to try a case. Because voir dire is NOT limited to questions which would provide a basis for a challenge for cause, counsel should be given broad latitude in selecting the subject matter of voir dire within the bounds of the relevance to the parties or issues in the case

However, if a party does object as an opponent's evidence as outside the pleadings, the other party can ask to make a....

trial amendment. (different from an amended pleading, because all a trial amendment contains is the new pleading; it's on top of the amended pleading)

Tex. R. Civ. P. 297. Time to File Findings of Fact and Conclusions of Law. The court shall file its findings of fact and conclusions of law within...

twenty days after a timely request is filed. The court shall cause a copy of its findings and conclusions to be mailed to each party in the suit.

These unique timetables created problems. Parties lost the right to appeal because they didn't realize the different time period. So, *unless a statute expressly prohibits modification or extension of a statutory appellate deadline*, an accelerated appeal is perfected by filing a notice of appeal within

twenty days after the judgment or appealable order is signed. This rule was written to try to salvage for appeal these cases these unique statutory timetables.

Local Counsel - what is it?

typically used in situations where you don't usually try cases. Often in smaller community where everyone knows everyone, except you. Find out who would be good local counsel to be at the table and on the pleadings. Helps to get cred with community and judge.

Jury Instruction Regarding Punitive Damages TXL added a requirement for suits filed after Sept 1, 2003 that exemplary damages may be awarded only if the jury was ...

unanimous in regard to finding lability for and the amount of exemplary damages. Also requires the following jury instruction: You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous. *PUNITIVE DAMAGES - MUST BE UNANIMOUS IN BOTH THE CONDUCT (INTENT TO INJURE) AND THE DAMAGES DOLLAR AMOUNT*

A court of appeals acts in excess of its mandamus writ power -- abuses its discretion -- when it grants mandamus relief absent these circumstances. A relator who attacks the ruling of a trial court must establish that,

under the circumstances of the case, the facts and the law permit the trial court to make but one decision. An appellate court may not deal with disputed issues of fact in a mandamus proceeding.

Mandamus review of incidental, interlocutory rulings by the trial courts ...

unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation.

Rule 299 only allows deemed/presumed findings on

unrequested and omitted findings of PARTIALLY determined grounds.

Contract terms: In a suit of contract, if the contract itself defines legal terms,

use the intended definition within the contract. (Parties agree substantial compliance means.....")

Appealable Orders Listed in Other Statutes Section 15.003(c) of the Civil Practice and Remedies Code creates a right to immediate appeal of an order concerning whether a plaintiff did or did not independently establish proper

venue or did not establish the situational requirements allowing intervention or joinder.

For an appellate court to order the release of relator, the trial court's order of commitment must be

void, either because it was beyond the power of the court or because it deprived the relator of his liberty without due process of law.

To support an order of release on a petition for habeas corpus relief, the trial court's order must be

void, either because it was beyond the power of the court or because it deprived the relator of his or her liberty without due process of law.

If a TCt changes its judgment after losing plenary power, its actions are

void. So if we can't calculate the expiration of plenary power, and then we retry the case, and then we decide to appeal 3 years after the first judgment, it is ALL A NULLITY. Everything that happened was void. Court didn't have authority. Problem with appellate law: a lot of appellate law firms are boutique firms that won't hire until 10 years experience. Hard to get that experience. In order to get a specialization in appellate law, you have to. If you want to get qualifications: you can take pro bono appeals.

RULE 279. OMISSIONS FROM THE CHARGE Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are

waived.

Counsel should ask for additional findings on their ground if the trial court has not made findings on any element of their ground to avoid

waiver of that ground.

If there's NO findings of fact on any elements of a ground, you're going to have a

waiver of that ground. Since no one asked for any element of the ground, then it's a totally omitted ground that's been waived.

W. Steel Co. v. Coast Inv. Corp., 760 S.W.2d 725 (Tex. App.—Corpus Christi 1988, no writ) RULE: Although an original request for findings of fact need not specify the facts a party is requesting the court to make, a party who makes a request for additional findings of fact and conclusions of law without setting forth the specific finding it seeks, ...

waives it. When you make a request for original findings, you are not required to request the findings you want. BUT, *when you request for additional/amended findings, you MUST set forth exactly what you what.* What additional/amended finding are you asking for? Can't just say, "I need more findings." That's not helpful to the court. Even though you are not required to ask what you want *in the original findings, you might want to supply the court with a written draft of findings because courts are not inclined to write more than they have to* since they don't have secretaries.

Failing to Object to Defects If an improper jury charge misstates the law, but there is no timely objection to the defect, the party

waives the right to complain that the wrong legal standard was used by the jury. Moreover, the sufficiency of the evidence is reviewed in light of the standard actually submitted, not the question the trial should have submitted. Therefore, the appellate court will review the jury's answer to the law that it was given, even if it's the wrong law.

A judgment may not be amended to include an alter ego that

was not named in the suit. Therefore, an alter ego finding in a post-judgment net worth proceeding may not be used to enforce the judgment against the unnamed alter ego or any other nonjudgment debtor, but only to determine the judgment debtor's net worth for the purposes of Tex. R. App. P. 24. under Rule 24.2(c)(3) "[t] he trial court must hear a judgment creditor's contest promptly after any discovery has been completed." Rule 24.2(c)(3) clearly provides that after the hearing the trial court must issue an order that states the judgment debtor's net worth.

The big difference in the bench trial is that you know what the judgment is, because the order is flipped:

we don't have jury deliberation, fact findings, then a judgment. Instead, a bench trial has a judgment first, then parties request findings. So you can look and see: "hey! This ground is missing an element. Which way will it be presumed?" If I'm the judgment winner, it's going to be presumed in my favor so I have no incentive to ask for additional findings. I'll take the presumed finding.

Lay Witness Testimony Lay witnesses may testify on

what they saw, heard, and perceived, etc. personally.

After you've narrowed it down, you want to pick your longest/strongest grounds. Tell story in brief (only get 50 pages in brief). If you have 30 complaints, probably not telling any of them well in 50 pages. Think about:

what types of cases are the TXSC taking up lately. What areas of jurisprudence are they currently developing. Can this case help clarify/develop this area of law?

*Bill of Review* -

what you file in the same court that entered the judgment, seeking the court to set aside its judgment and give you a new trial. Can file up to 4 years after judgment. But grounds are VERY limited. But failing to get notice in DWOP is grounds for Bill of Review. Evidentiary proceeding - can present evidence of no notice.

Can also get to TXSC through direct appeal -

when TCT has declared TXL statute unconstitutional.

"Agreed case" -

when all the facts are stipulated and there remains only a question of law. Such a case does not require jury selection, evidence, etc.

Formal Bill of Exceptions -

when there's no court reporter present - the lawyer makes his own record, goes to the other side and the judge. The judge listens to the other side's objections (if any), then the judge signs off or not. If not, then an appellate court will decide. Never want to have to use a formal bill of exception because there's a chance the TCT won't sign. So you always want to have the court reporter there.

Amended or Supplemental Briefs Briefs may be amended or supplemented

whenever justice requires, on whatever reasonable terms the court may prescribe. Tex. R. App. P. 38.7. If the court orders amendment or supplementation due to briefing inadequacies, the terms of the court's order must be complied with (time period to respond) and a motion for leave should not be necessary. Otherwise, an amended or supplemental brief filed under Appellate Rule 38.7 should be accompanied by a motion for leave.

NOTE 1: Key inquiry for whether requesting findings of fact extends the timetable an appeal from 30 days to 90 is

whether the trial court held an evidentiary hearing, so there are facts to be found. Even if it's discretionary with the court whether to make those findings (as in all cases except a full blown trial). Make a timely request for findings of fact, if they could have purpose, they extend the appellate timetable.

In examining a court of appeals' grant of mandamus relief, the focus of the Texas Supreme Court remains on the trial court. The court makes an independent inquiry as to

whether the trial court's action was so arbitrary or unreasonable, or based upon so gross and prejudicial an error of law, as to constitute an abuse of discretion. Mandamus will issue only to correct a clear abuse of discretion, or the violation of a duty imposed by law, when there is no adequate remedy at law.

Motion for Rehearing in Court of Appeals Once the court of appeals hands down its decision, a party dissatisfied by the judgment should consider

whether to file a motion for rehearing before seeking review in the Texas Supreme Court. IT IS OPTIONAL.

Whether you assert "insufficient evidence" or "heavily against the weight of the evidence" (the two factual sufficiency grounds) just depends on

whether you have the BOP. You don't assert both.

CHAPTER 4: THE JURY CHARGE Can't overemphasize the importance of the jury charge questions, because how the jury answers the questions determines

who wins and who loses in over 90% of cases. Very integral to case; Should influence your choice of whether to take the case: What am I going to have to ask the jury to decide? When you bring a case, consider each element, what would the jury charge look like? From the very beginning of the case, must know how the facts work for your elements and for your opponent's defenses. Must know both sides of the case. You don't wait to the trial to wonder what the jury charge will looks like.

Oral Argument You have to include in your brief whether you request oral argument, and

why it would be beneficial. ACt can decide whether to deny/grant or order even if you didn't ask for it. Most courts grant requests for oral argument. Helpful to ask followup Qs on brief. Some courts START with oral arguments. [not as common to get oral arguments in criminal judgment] The decision to allow oral argument is a matter within the discretion of the appellate court. Must request in your brief or may waive the right. The court may deny argument when the appeal is frivolous, the dispositive issues have been authoritatively decided, the facts and legal arguments are adequately presented in the briefs and record, or the decisional process would not be significantly aided by oral argument. Tex. R. App. P. 39.1.

NOTE 8: p565 - Inadmissible evidence, that was properly objected to, but the TCT got it wrong,

will NOT be considered by the appellate court as some evidence. Thus, if the trial court got it wrong and should have sustained the objection then that inadmissible evidence will not be part of it sufficiency review. It's as if it was NOT in the record.

Lowering Amount of Security The trial court must lower the amount of security to an amount that

will not cause the judgment debtor "substantial economic harm" if after notice and hearing, the trial court finds that the amount [required] is likely to cause the judgment debtor "substantial economic harm." Tex. R. App. P. 24.2(b).

District and statutory county court judges should ensure that all cases are brought to trial or final disposition as follows: 2) civil nonjury cases -

within 12 months from appearance date

District and statutory county court judges should ensure that all cases are brought to trial or final disposition as follows: 4) uncontested family law cases -

within 3 months from appearance date or from the expiration of the statutory waiting period. Court can set an earlier or later date with a scheduling order

District and statutory county court judges should ensure that all cases are brought to trial or final disposition as follows: 3) contested family law cases -

within 6 months from appearance date or from the expiration of the statutory waiting period applicable to divorce cases; and

Evidence itself will be

witness testimony and exhibits, demonstrations, displays, etc. Exhibits are numbered by the court reporter and retained in his custody when received into evidence. Sometimes an item of information is only kept in the mind of the jury (like a demonstration or a blackboard drawing, etc.) and will not be part of the record. These can be made part of the record by a photograph, etc. But not always necessary

Stipulations must be in

writing, signed by both parties, and filed with the court or made of record in open court. Write out stipulation, unless you are stipulating to the authentication of the document. Make sure stipulations are entered in the record (this allows appellate court to conclude proof on that matter was unnecessary). Ambiguous stipulations will not be enforced.

An order granting a new trial or modifying, correcting, or reforming a judgment must be

written and signed within that time limit. Tex. R. Civ. P. 329b(c). A trial judge's oral pronouncement granting a motion for new trial or motion to modify, reform, or correct a judgment and a docket entry indicating that such motion was granted cannot substitute for a written order required by Rule 329b. (So overruled by operation of law)

The charge is prepared in ...

written form;

If you haven't taken an expert's deposition (because maybe you didn't have time under the discovery rules which allocate only so much time to depositions), and you don't know if they are qualified, what you do at trial when this witness is called, is

you can ask the court to take the witness on voir dire. Outside the hearing of the jury you can ask to see if the expert is qualified. Voir dire means ("speak truthfully") A small subtrial is often requested in the course of a trial to test the qualifications of a witness or some other evidence. If it appears during trial that there is a legal reason that the witness is disqualified or incompetent or that some underlying reason exists for the exclusion of the testimony or evidence, counsel should say to the court, "May I take the witness on voir dire? If Q&A might inject the matter that is sought to be excluded, the jury can be excluded during questioning. Object is to determine that witnesses possess personal knowledge in a matter; or qualifications to testify

Unchallenged findings of fact are generally binding on an appellate court, unless

you have have a basis to show in a bench trial that the evidence or the law doesn't support them.

If you don't object to the expert's testimony....

you have likely waived your right to complain on appeal

Use of Peremptory Challenges to preserve error in challenges for cause

you have to actually have to use one of your peremptory strikes against juror that should have been struck for cause, then identify the person that remains because you ran out of peremptory challenges.

Grant or Denial of Plea to Jurisdiction

§ 51.014(a)(8) grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001 (Sovereign immunity/government immunity) The statutory reference to a "plea to the jurisdiction" is not to the particular procedural vehicle but to the substance of the issue raised. An interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is made in plea to the jurisdiction, denominated as such, or in some other vehicle, such as summary judgment.

Leading Questions Evidence Rule 611(c): Leading questions should not be used on direct examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:

÷on cross-examination; and ÷when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party