THE TOP 10 TRAPS FOR TRIAL LAWYERS ON APPEAL

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1 THE TOP 10 TRAPS FOR TRIAL LAWYERS ON APPEAL SCOTT P. STOLLEY Thompson & Knight LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas P. MICHAEL JUNG Strasburger & Price, LLP 4400 Bank of America Plaza 901 Main Street Dallas, Texas State Bar of Texas 26 TH ANNUAL ADVANCED PERSONAL INJURY LAW COURSE July 14, 2010 (Dallas) August 4, 2010 (San Antonio) September 1, 2010 (Houston) CHAPTER 3

2 TABLE OF CONTENTS Table of Contents... i I. INTRODUCTION II. TRAP #10: FAILURE TO TIMELY REQUEST FINDINGS AND CONCLUSIONS A. Entitlement... 1 B. Form and Placement... 1 C. Procedure and Timing... 1 III. TRAP #9: JURY NOTES IV. TRAP #8: VAGUE EVIDENTIARY OBJECTIONS V. TRAP #7: FAILURE TO PRESERVE ERROR DURING VOIR DIRE A. Questions About the Evidence... 4 B. Wasting Peremptory Challenges... 5 VI. TRAP #6: HEARINGS AND OTHER MATTERS NOT ON THE RECORD VII. TRAP #5: NOT MAKING ALL SUMMARY JUDGMENT ARGUMENTS AND NOT FILING ALL SUMMARY JUDGMENT EVIDENCE A. Summary Judgment Arguments... 6 B. Summary-Judgment Evidence... 6 VIII. TRAP #4: FAILURE TO TIMELY MAKE AND RENEW A MOTION FOR JUDGMENT M.O.L. IN A FEDERAL JURY TRIAL A. General Rules... 7 B. Rule 50(a) Motions... 7 C. Rule 50(b) Motions... 8 D. Consequences... 8 IX. TRAP #3: FAILURE TO FILE AND GET A RULING ON A ROBINSON MOTION RELATING TO A METHODOLOGICAL FLAW X. TRAP #2: FAILURE TO MAKE AN OFFER OF PROOF OF EXCLUDED EVIDENCE A. Necessity... 9 B. Timing C. Form and Content XI. TRAP #1: STATE COURT CHARGE OBJECTIONS AND TENDERS i

3 A. General Rules B. Trial Court s Duties C. Objections D. Written Tenders E. Deemed Findings F. Summary XII. CONCLUSION ii

4 SCOTT P. STOLLEY THOMPSON & KNIGHT LLP 1722 Routh Street, Suite 1500 Dallas, Texas (214) (direct dial) (214) (direct fax) PRACTICE DESCRIPTION Scott P. Stolley focuses his practice on the representation of appellants and appellees in state and federal appellate courts, including evaluation of appeals, drafting briefs, and arguing to appellate courts. In addition, he consults and assists on dispositive, significant, and posttrial motions in trial courts, and provides trial support on appellate-related issues such as preservation of error and preparing and objecting to the jury charge. Mr. Stolley s practice also includes evaluating insurance-coverage issues for policyholders. EXPERIENCE & EDUCATION Thompson & Knight LLP, Dallas, Texas (1996-present) Leader, Appellate Practice Group Chair, Thompson & Knight PAC Vice Chair, Thompson & Knight Foundation Thompson, Coe, Cousins & Irons, L.L.P., Dallas, Texas ( ) J.D. (with distinction), University of Iowa College of Law, Iowa City, Iowa (1981) B.A. in Sociology (with distinction), Iowa State University, Ames, Iowa (1978) CERTIFICATIONS & HONORS Board Certified in Civil Appellate Law, Texas Board of Legal Specialization (1995-present) Fellow, American Academy of Appellate Lawyers (2010-present) Named to the Texas Super Lawyers by Thomson Reuters (Appellate Law) (2003-present) Named in The Best Lawyers in America by Woodward/White Inc. (Appellate Law) (2007-present) Named in a D Magazine poll as one of the top five appellate lawyers in Dallas (2001) Fellow, Texas Bar Foundation and Dallas Bar Foundation BAR MEMBERSHIPS American Bar Association State Bar of Texas Member, Pattern Jury Charge Committee (Business, Consumer, Employment) (2007-present) Dallas Bar Association Board of Directors ( ) Chair, Appellate Law Section (2006) Texas Association of Defense Counsel Board of Directors (2008-present) Member, Amicus Committee (1995-present) DRI The Voice of the Defense Bar Chair, Amicus Committee (2008-present) Chair, Appellate Advocacy Committee ( ) Founding Editor, Appellate Advocacy Committee newsletter, Certworthy ( ) Winner of the G. Duffield Smith Outstanding Publication Award for the best article in For the Defense (2004) Bar Association of the Fifth Federal Circuit SCRIBES American Society of Legal Writers PUBLICATIONS & PRESENTATIONS Fifth Circuit Editor, SUPERSEDING AND STAYING JUDGMENTS: A NATIONAL COMPENDIUM (ABA 2007) Chapter co-author, Statutory Interpretation Issues, TEXAS SUPREME COURT PRACTICE MANUAL (State Bar of Texas 2005) Lead Editor, A DEFENSE LAWYER S GUIDE TO APPELLATE PRACTICE (DRI 2004) Contributor to BLACK S LAW DICTIONARY (Bryan A. Garner ed., 7th ed. 1999, 8th ed. 2004, 9th ed. 2009) Author of more than 30 published articles on legal-writing, appellate, and insurance topics Speaker at more than 50 CLE presentations mostly on legal-writing, appellate, and insurance topics i

5 P. MICHAEL JUNG Strasburger & Price, LLP 4400 Bank of America Plaza 901 Main Street Dallas, Texas (telecopy) (mobile) Fields of Practice: Appellate litigation in state and federal courts (over 400 appeals handled, including 182 oral arguments); trial court motion practice and consultancy in complex trial court litigation; zoning and other governmental law Education: Harvard Law School J.D. magna cum laude, 1979 Massachusetts Institute of Technology S.B.s in Earth & Planetary Sciences and Mathematics, 1975 Professional Strasburger & Price, LLP (Dallas, Texas) Experience: Appellate Practice Group (Head 2001-) Zoning/Land Use Practice Group (Head 2003-) Partner, 1986-; Associate, Law Clerk to Hon. Patrick E. Higginbotham, United States District Judge for the Northern District of Texas, C. S. Draper Laboratory, Inc. (Cambridge, Mass.) Technical Staff, (computer analysis of Space Shuttle reentry guidance) Certification: Civil Appellate Law (Texas Board of Legal Specialization), Professional American Academy of Appellate Lawyers (Fellow, 2006-) Associations: Texas Association of Defense Counsel, (Vice-President, ) Amicus Curiae Committee, (Chairman, ) State Bar of Texas, Appellate Practice and Advocacy Section, Dallas Bar Association, Appellate Section, (Chairman, 1995) Professional Texas Association of Defense Counsel President s Award, 1992, 1997 Recognitions: Texas Monthly Super Lawyers, (top 100 in Texas) D Magazine Best Lawyers in Dallas, The Best Lawyers in America (appellate law and commercial litigation , bet-the-company litigation and administrative law ) America s Leading Lawyers for Business (appellate law )

6 THE TOP 10 TRAPS FOR TRIAL LAWYERS ON APPEAL I. INTRODUCTION. It is often said that lawyers who try cases for appeal generally have to. But it is equally true that lawyers who do not try cases for appeal had better not have to. The opportunities to waive appellate complaint by action or inaction during trial court proceedings are endless; this paper will present only ten of the easiest ways to do so, gleaned from the authors sixty years of combined experience in appealing and defending trial court judgments. II. TRAP #10: FAILURE TO TIMELY RE- QUEST FINDINGS AND CONCLU- SIONS. A. Entitlement (1) Following a bench trial, any party may request the court to state in writing its findings of fact and conclusions of law. Tex. R. Civ. P Generally, however, only the losing party requests findings and conclusions, because in their absence, the reviewing court must imply all necessary fact findings in support of the trial court s judgment. Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626, 630 n.10 (Tex. 1992). Although findings and conclusions go together, it is the findings that count: they are reviewed on appeal only for legal and factual sufficiency of the evidence, e.g., Mays v. Pierce, 154 Tex. 487, 281 S.W.2d 79, 82 (1955), whereas conclusions of law are reviewed de novo, e.g., Hydrocarbon Management, Inc. v. Tracker Exploration, Inc., 861 S.W.2d 427, 431 (Tex. App. Amarillo 1993, no writ). (2) Findings of fact are not appropriate where the trial court is not acting as an evidentiary factfinder. In particular, they are not appropriate following a summary judgment, e.g., Willms v. Americas Tire Co., 190 S.W.3d 796, 810 (Tex. App. Dallas 2006, pet. denied); following a jury trial, e.g., Favoloro v. Commission for Lawyer Discipline, 13 S.W.3d 831, 840 (Tex. App. Dallas 2000, no pet.), unless the court must make findings under Tex. R. Civ. P. 279 on issues that were omitted from the jury charge, see Insurance Co. of St. Louis 1 v. Bellah, 373 S.W.2d 691, 692 (Tex. App. Fort Worth 1963, no writ); where the trial court has directed a verdict, e.g., Ditto v. Ditto Investment Co., 158 Tex. 104, 309 S.W.2d 219, 220 (1958), or rendered a judgment n.o.v., e.g., Fancher v. Cadwell, 159 Tex. 8, 314 S.W.2d 820, 822 (1958); or where the judgment is not based on an evidentiary hearing, including most dismissals for want of prosecution, many dismissals for want of jurisdiction, and all dismissals based on the pleadings or special exceptions, e.g., IKB Industries v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). Where a case is tried in part to a jury and in part to the bench, findings and conclusions are appropriate as to the court-decided issues. IKB Industries v. Pro-Line Corp., 938 S.W.2d at 443; see also Tex. R. Civ. P B. Form and Placement (1) Oral comments by the trial court, even when made on the record, do not constitute or substitute for formal findings and conclusions, and may not be considered by an appellate court. E.g., Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 615 (Tex. App. Dallas 2003, pet. denied). And unlike federal practice, findings made in narrative fashion in a trial court opinion are not sufficient. Kenedy Memorial Foundation v. Dewhurst, 994 S.W.2d 285, 308 (Tex. App. Austin 1999), rev d on other grounds, 90 S.W.3d 268 (Tex. 2002). Finally, findings should not be placed in the body of the judgment itself, Tex. R. Civ. P. 299a; the courts of appeals are split as to whether such findings can be considered on appeal. Compare, e.g., Casino Magic Corp. v. King, 43 S.W.3d 14, 19 n.6 (Tex. App. Dallas 2001, pet. denied) (no), with, e.g., In re Estate of Jones, 197 S.W.3d 894, & n.4 (Tex. App. Beaumont 2006, pet. denied) (yes, unless findings in judgment conflict with separately-filed findings). C. Procedure and Timing (1) The procedure for requesting findings and conclusions is complex and arcane. A request for find-

7 ings and conclusions must be filed no later than 20 days after the judgment is signed. Tex. R. Civ. P Such a request places a duty on the trial court to file findings and conclusions within 20 days after the request. Tex. R. Civ. P But if the trial court fails to discharge this duty (and many courts do fail), the burden falls on the requesting party to file a Notice of Past Due Findings of Fact and Conclusions of Law no later than the 30 th day after the original request. Id. Such a notice extends the deadline for the findings and conclusions to the 40 th day after the original request. Id. Failure to timely file both the initial request and the past-due notice is fatal to the requesting party s right to findings and conclusions. E.g., Gnerer v. Johnson, 227 S.W.3d 385, 389 (Tex. App. Texarkana 2007, no pet.). The trial court s deadlines, on the other hand, are more flexible; the court can file findings and conclusions at any time, even after its plenary power has expired. E.g., Morrison v. Morrison, 713 S.W.2d 377, (Tex. App. Dallas 1986, writ dism d w.o.j.). (2) Once the court files its findings and conclusions, additional complex rules come into play. If a party believes that the court has failed to identify and make findings or conclusions on a material issue or issues, or has made findings or conclusions that do not accurately correspond to the material issue(s), the party may request specified additional or amended findings or conclusions. Tex. R. Civ. P The request must be filed within 10 days after the original findings and conclusions were filed. Id. The trial court then has 10 days from the request to make any additional or amended findings or conclusions it deems appropriate. Id. Failure to request additional or amended findings or conclusions leaves in place the presumption that the omitted issues were found in support of the judgment, e.g., Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App. Houston [14 th Dist.] 2000, no pet.), and waives any objection to the trial court s failure to explicitly rule on those issues, e.g., Lewis v. Dallas Soundstage, Inc., 167 S.W.3d 906, 915 (Tex. App. Dallas 2005, no pet.). (3) If the court does not file findings and conclusions despite timely request and past-due notice, the error is presumed harmful, and is reversible unless the record affirmatively shows the complaining party suffered no harm. E.g., Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). III. TRAP #9: JURY NOTES. (1) During jury deliberations, it is not unusual for the jury to send out notes containing questions. It is beyond the scope of this paper to catalog all of the issues that can arise with respect to jury notes and the 2 court s responses. Instead, we will focus on issues regarding the transparency of the process. (2) In general, communications from the jury must be made in open court, through the presiding juror, either verbally or in writing. Tex. R. Civ. P But if the jury wants further instructions, the request must be in writing and must state the particular question of law upon which the jury desires instruction. Tex. R. Civ. P Further instructions may also be given on the court s own motion. Id. (3) When the court gives further instructions on the law, the court must do so in writing. Id; see Tex. R. Civ. P And such written instructions must be in conformity with other rules relating to the jury charge. Tex. R. Civ. P Among other things, this means that the parties must be given an opportunity to object to the instruction before it is read (or given) to the jury. See Green v. Evans, 362 S.W.2d 377, (Tex. Civ. App. Dallas 1962, no writ). Counsel must therefore be prepared to preserve this error on the fly. (4) It is not unusual for trial courts and juries to deviate from the technical requirements of transparency (such as communications in writing and in open court). It is also easy for inattentive counsel to waive these requirements. See Garza v. San Antonio Light, 531 S.W.2d 926, 930 (Tex. Civ. App. Corpus Christi 1975, writ ref d n.r.e.); Colls v. Price s Creameries, Inc., 244 S.W.2d 900, (Tex. Civ. App. El Paso 1951, writ ref d n.r.e.) Further, the failure to give instructions in writing or in open court is often harmless. See Ross v. Texas Employers Ins. Ass n, 153 Tex. 276, 267 S.W.2d 541, 543 (1954). (5) An interesting 2009 case illustrates the importance of transparency. In Ford Motor Co. v. Castillo, 279 S.W.3d 656 (Tex. 2009), the parties settled during jury deliberations after the presiding juror sent out a note asking the maximum amount that could be awarded. Id. at 659. Ford later learned from some jurors that the jury had already decided the first liability question in Ford s favor and had tentatively voted for Ford on the second liability question (eight for Ford, two for the plaintiff, and two undecided). Id. Ford also learned that some of the jurors did not know about the presiding juror s note, while other jurors objected to the note. Id. After Ford refused to consummate the settlement, the plaintiffs sought to enforce it. Ford resisted on the ground of mutual mistake because the parties acted under the mistaken belief that the presiding juror had sent the note on behalf of the entire jury and that the jury had reached the damages issue. Id. at 660. Ford also sought to conduct discovery to support its defense.

8 The trial court refused to allow Ford s discovery and ultimately, enforced the settlement. Id. at The court of appeals affirmed, but the Supreme Court reversed on the ground that it was error to deny Ford s requested discovery. Id. at 661. In a concurring opinion, Justice Wainwright suggested that an additional reason supporting the Supreme Court s decision was the evidence that the note did not come from the jury but from a single juror. Id. at 668. (Wainwright, J., concurring). He explained that the participants in Texas trials presume, and reasonably expect, that a note coming from the jury room represents the concerns (if not the opinions) of at least a majority of jurors. Id. He suggested that the rules be amended to preclude a juror or a group of jurors from sending a note under circumstances suggesting that the note came from the entire jury. Id. at 669. The opinion does not disclose whether the trial court received the jury s inquiry in open court with the jury present. But it seems likely that the note was not received in open court with the jury present, since it seems likely that some juror would have spoken up about the presiding juror s improper note if the note had been read aloud in open court. In any event, Ford s counsel might have prevented a big problem had he objected to a failure to receive the note in open court. Requiring that a note be read in open court aids transparency because the judge and all parties, counsel, and jurors are then knowledgeable about what is happening. IV. TRAP #8: VAGUE EVIDENTIARY OB- JECTIONS. (1) Tex. R. Evid. 103(a)(1) states that appellate complaint may not be predicated on a ruling that admits evidence unless a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. (2) It follows immediately from this rule that an objection that states no ground at all ( objection! ) generally fails to preserve appellate complaint. E.g., Stedman v. Stedman, 731 S.W.2d 706, 708 (Tex. App. Houston [1 st Dist.] 1987, no writ). But objections that state general grounds without explaining how those grounds are applicable are likewise insufficient. For example, it is insufficient to object that evidence is prejudicial, e.g., Glens Falls Insurance Co. v. Bendy, 39 S.W.2d 628, 633 (Tex. Civ. App. Beaumont 1931), aff d on other grounds, 58 S.W.2d 1 (Tex. Comm n App. 1933, judgmt adopted); that evidence is incompetent, irrelevant, and immaterial, e.g., Early-Foster Co. v. Mid-Tex Oil Mills, 208 S.W. 224, 226 (Tex. Civ. App. Austin 1918, writ ref d) unless your name is Perry Mason and your trial is in a mystery novel or that it is irrelevant, immaterial, and prejudicial, e.g., Peerless Oil & Gas Co. v. Teas, 138 Tex. 301, 158 S.W.2d 758, 759 (1942); that the predicate is insufficient, e.g., Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex. 1980); that there are no pleadings to support the evidence, Southern Underwriters v. Weldon, 142 S.W.2d 574, 576 (Tex. Civ. App. Galveston 1940, no writ); to the form of the question, Scott v. Scruggs, 836 S.W.2d 278, 280 (Tex. App. Texarkana 1992, writ denied); that an affidavit is self-serving, Burleson v. Finley, 581 S.W.2d 304, 310 (Tex. Civ. App. Austin 1979, writ ref d n.r.e.); or that the elements in this hypothetical question have not been proved, e.g., Wheatheart Feeders, Inc. v. Pletcher, 453 S.W.2d 902, 904 (Tex. Civ. App. Amarillo 1970, writ dism d). (3) So how specific must an objection be? It has been said that [a] valid objection to an offer of evidence is one that names the particular rule of evidence that will be violated by admission of the evidence. E.g., City of Mesquite v. Moore, 800 S.W.2d 617, 619 (Tex. App. Dallas 1990, no writ). Although it is doubtful that the objecting party must literally state the name or number of the applicable evidentiary rule, the objection must at least allow the trial court to make an intelligent ruling and afford opposing counsel an opportunity to remove the objectionable grounds, see, e.g., Wilkins v. Royal Indemnity Co., 592 S.W.2d 64, 68 (Tex. Civ. App. Tyler 1979, no writ). Customized speaking objections that refer colloquially to reasons why evidence should not come in but are not anchored in any articulated evidentiary principle are unlikely to meet this standard. 3

9 (4) Where only a portion of the proffered evidence is inadmissible on the ground stated, the objecting party must identify the inadmissible portion. E.g., Speier v. Webster College, 616 S.W.2d 617, 619 (Tex. 1981). Likewise, when evidence is admissible for one particular purpose but not others, the objection must be directed to the purposes for which it is inadmissible. E.g., Winkel v. Hankins, 585 S.W.2d 889, 894 (Tex. Civ. App. Eastland 1979, writ dism d). (5) Even where an objection is sufficiently specific, it preserves appellate complaint only with respect to the specific ground stated; other grounds are waived. E.g., Sciarrilla v. Osborne, 946 S.W.2d 919, 924 (Tex. App. Beaumont 1997, no pet.). (6) Running objections present special problems. They must be specific and unambiguous, e.g., Huckaby v. A. G. Perry & Son, Inc., 20 S.W.3d 194, 203 (Tex. App. Texarkana 2000, pet. denied). In particular, the subject matter of the running objection must be clearly specified. Moreover, a running objection will not extend beyond the testimony of the current witness unless the intent to do so clearly appears. See, e.g., id.; In re A.P., 42 S.W.3d 248, 261 (Tex. App. Waco 2001, no pet.). (7) The occasions on which a specific objection is unnecessary because the ground of the objection was apparent from the context ( I don t know, but John Doe told me OBJECTION! ) are limited. There is no reason to risk waiver by failing to specify the ground of the objection, even when it ought to be obvious. V. TRAP #7: FAILURE TO PRESERVE ERROR DURING VOIR DIRE. It is beyond the scope of this paper to discuss all of the error-preservation issues that can arise during voir dire. Instead, we will focus on (i) voir dire questions that seek to discover what the panel members think about the evidence, and (ii) what to do when you must waste a peremptory strike on a juror who should be stricken for cause. A. Questions About the Evidence (1) A primary purpose of voir dire is to determine if any panel member has a preexisting bias or prejudice that renders him or her unable to be an impartial juror. See Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 749 (Tex. 2006). (2) Bias is an inclination toward one side that goes so far as to lead to the natural inference that the panel member cannot be impartial. Id. at 751. Prejudice means prejudgment. Id. (3) One way to state the ultimate test is whether the panel member is willing to listen to all of the evidence and withhold judgment until the end of the case. See Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87, 93 (Tex. 2005). (4) One common voir dire tactic has been to recite the evidence and ask the panel members if one party is starting out ahead based on that evidence. See id. at 94. This is an improper question because it does not inquire about a bias or prejudice. Id. Instead, it asks for a preview of the panel member s likely verdict. Id. Jurors are supposed to form opinions about the evidence, so it is not disqualifying if they have an initial leaning or an opinion about the evidence. See id. ( An initial leaning is not disqualifying if it represents skepticism rather than an unshakeable conviction ). Vasquez, 189 S.W.3d at 751, 753. (5) Another voir dire tactic is to ask panel members for their views of particular pieces of important evidence. In Vasquez, a child was killed by an airbag while sitting unbuckled in the front seat of a car. The plaintiffs lawyer was able to get two entire jury panels dismissed by asking the panel members whether the failure to buckle the child would determine their verdict. Vasquez, 189 S.W.3d at This was an improper question because it sought to pre-test the evidence and preview the verdict, rather than expose preexisting bias or prejudice. Id. at (6) If your opponent asks a voir dire question that seeks to elicit the panel members views about the evidence, you should object that the question is improper because it does not seek to establish a bias or prejudice, but instead seeks to pre-test the evidence and preview the verdict. See Cortez, 159 S.W.3d at 94; Vasquez, 189 S.W.3d at 751, 752, 753. It improperly seeks to determine the weight that panel members will give to the evidence. See Vasquez, 189 S.W.3d at , 756. (7) If the court nevertheless allows such a question, and your opponent then uses the answer to challenge the panel member for cause, you should oppose the challenge for cause because it is not a basis for disqualification that the panel member has an opinion about the evidence. See Vasquez, 189 S.W.3d at 751, 753, 755. If the court nevertheless strikes the panel member for cause, you should object to the court s ruling, or else you waive the error. See Kemp v. State, 846 S.W.2d 289, 302 (Tex. Crim. App. 1992). 4

10 (8) If the trial court disallows one of your voir dire questions on the ground that the question improperly seeks to pre-test the evidence, you might try to rephrase the question to avoid that problem. To preserve error, you must timely alert the trial court as to the specific manner in which [you] [intend] to pursue the inquiry. Vasquez, 189 S.W.3d at 78. It is incumbent on [you] to request alternative approaches to avoid the problem the trial court was addressing by its ruling. Id. at 759. (9) Remember that the Supreme Court of Texas does allow the rehabilitation of panel members. See Cortez, 159 S.W.3d at 91-93; Vasquez, 189 S.W.3d at 755. By this, the court means that the trial court may allow further questions that would clarify whether the panel member is truly biased or whether the apparent partiality was the result of inappropriate leading questions, confusion, misunderstanding, ignorance of the law, or merely loose words spoken in warm debate. Cortez, 159 S.W.3d at 92 (internal quotation marks omitted); see id. at 93. If the initial apparent bias is genuine, further questioning should only reinforce that perception; if it is not, further questioning may prevent an impartial venire member from being disqualified by mistake. Id. at 93. If the court refuses your efforts to ask rehabilitating questions, be sure to make a record of the questions you were not allowed to ask. B. Wasting Peremptory Challenges (1) When you challenge a panel member for cause, and the trial court denies the challenge, you will usually find yourself exercising a peremptory strike on that panel member. This renders harmless any error in denying your challenge for cause. Cortez, 159 S.W.3d at 90. But there is harm if you would have used that peremptory strike on another objectionable panel member. Id. (2) To preserve this error, you must exhaust your other peremptory strikes and inform the court that a specific objectionable panel member will remain on the jury because you ran out of strikes. Id. at In other words, you must identify another panel member whom you would have stricken peremptorily if you had not been compelled to waste a strike on the panel member who should have been stricken for cause. (3) You do not have to state why you would have used a peremptory strike on the objectionable panel member who remains. Id. at 91. But you must identify that panel member to the court before you learn the identity of the other side s strikes and before the jury is seated. Id. It would be a good idea to also request an additional peremptory strike to use on the objectionable panel member who remains. 5 (4) If you successfully preserve appellate complaint, an erroneous denial of a challenge for cause is automatically harmful. The Supreme Court has said that we cannot know for certain that the [objectionable panel member s] inclusion did not affect the verdict, so we presume harm. Id. VI. TRAP #6: HEARINGS AND OTHER MATTERS NOT ON THE RECORD. (1) If, as Samuel Goldwyn said, [a]n oral contract is as good as the paper it s written on, then it follows that a unrecorded hearing preserves all the appellate complaints that are shown in the reporter s transcript of it. Or, mixing metaphors, one might say that if an objection or ruling is made in the courthouse and there s no court reporter there to hear it, it doesn t make reversible error. (2) Although it is often awkward to ensure that the court reporter is present for pretrial hearings, bench conferences, and in-chambers conferences, failure to do so means that there will be no stenographic record if potentially reversible error occurs on those occasions. Even where the announced subject matter is one where no record is necessary, it may be necessary to go on the record if the discussion veers into other matters (as, for example, when the trial judge, after discussing tomorrow s trial start time, says and, by the way, I ve decided to admit Exhibit 63 ). (3) A party is entitled, upon proper request, to have an official court reporter attend and record any trial court proceeding at which oral testimony is introduced, objections or rulings are made, or closing arguments are delivered. Tex. Gov t Code (a). Failure to request that the proceedings be recorded constitutes a waiver. E.g. Bledsoe v. Black, 535 S.W.2d 795, 796 (Tex. Civ. App. Eastland 1976, no writ). (4) The court reporter will sometimes not take stenographic notes when deposition testimony is being read or played. This is permissible only if the portions of the deposition introduced into evidence are clearly identified in the record, and those portions are either transcribed or otherwise made part of the record. Where the court of appeals is unable to determine what deposition testimony was introduced, all appellate complaints that are dependent on a complete reporter s record are waived. Taveau v. Brenden, 174 S.W.3d 873, (Tex. App. Eastland 2005, pet. denied); but see State Farm Fire & Casualty Co. v. Vandiver, 941 S.W.2d 343, 347 (Tex. App. Waco 1997, no pet.) (no waiver where reporter seemed to be recording testimony and record could be reconstructed).

11 (5) Although it is not impossible to make an after-the-fact record of matters that occurred off the record, the procedures for doing so are awkward. Tex. R. App. P. 33.2(c)(1)-(2) establish a procedure for making a formal bill of exception. The complaining party must first prepare a formal written bill memorializing the event in question. Tex. R. App. P. 33.2(c)(1). Unless the parties agree on the contents of the bill, the trial judge must, after notice and hearing, sign the bill or suggest corrections to it. Tex. R. App. P. 33.2(c)- (2)(A)-(B). If the complaining party does not agree to the corrections, the judge must refuse the bill and prepare a bill that accurately reflects the proceedings. Tex. R. App. P. 33.2(c)(2)(C). If the complaining party is not satisfied with this bill, the party may file the original bill as a bystanders bill supported by the affidavit of three persons who observed the matter; the opposing party may controvert the bystanders bill. Tex. R. App. P. 33.2(c)(3). VII. TRAP #5: NOT MAKING ALL SUM- MARY-JUDGMENT ARGUMENTS AND NOT FILING ALL SUMMARY- JUDGMENT EVIDENCE. A. Summary Judgment Arguments (1) A common failing is to omit arguments from a summary-judgment motion or response. (2) The rules and case law require the movant to state (in writing) the specific grounds for summary judgment. Tex. R. Civ. P. 166a(c); see, e.g., McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993). The purposes of this requirement are to (i) give the nonmovant fair notice to be able to oppose the motion, and (ii) define the issues to be addressed. See, e.g., Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978). (3) A ground is a proposition specifically addressed to a cause of action or defense that, if found to be true as a matter of law, requires the summary judgment to be granted. Timothy Patton, Summary Judgments in Texas 3.05 (3d ed. 2009) ( Patton ). (4) A summary judgment can stand or fall only on the grounds expressly presented in the motion. See, e.g., McConnell, 858 S.W.2d at Grounds stated elsewhere, such as in a brief, in the evidence, in a reply, or in a motion for rehearing, cannot support a summary judgment. See, e.g., id.; Patton (5) The grounds do not have to be briefed in the motion, but they do have to be listed in the motion, even if they are only stated concisely and without detail or argument. See, e.g., McConnell, 858 S.W.2d at 340; Patton (6) If the listed grounds are unclear, the nonmovant has the burden to file a special exception. See McConnell, 858 S.W.2d at The failure to file a special exception could result in the appellate court reading the listed grounds broadly, making it harder for the nonmovant to reverse the summary judgment. See id. (7) The lesson for the movant is to be extra cautious in listing the summary-judgment grounds in the motion itself. If you omit a ground, do not try to fix the problem by filing a brief or a reply. Instead, file a new or amended motion for summary judgment and provide the requisite 21-days notice. (8) The rules and the case law also require the nonmovant to expressly present its grounds for opposing summary judgment. Tex. R. Civ. P. 166a(c); McConnell, 858 S.W.2d at 341, 343. The nonmovant must do so in a written response, not in a brief, in the evidence, or in a motion for rehearing. See McConnell, 858 S.W.2d at 341, 343. (9) With one exception, a summary judgment cannot be reversed based on grounds not presented in the nonmovant s response. Tex. R. Civ. P. 166a(c). The exception relates to the rule that a summary judgment must stand or fall on its own merits. See McConnell, 858 S.W.2d at 343. Thus, even if the nonmovant files no response, the movant still must prove that it is entitled to the summary judgment. See id. This means that a nonmovant can always challenge a summary judgment by arguing on appeal that the grounds presented in the motion are legally insufficient. See id. (10) If the nonmovant s grounds for opposing summary judgment are unclear, the movant has the burden to file a special exception. See id. (11) The lesson for a nonmovant is the same as for a movant. Your response should contain all of your grounds for opposing summary judgment. You cannot cure an omission by including omitted grounds in some other document. B. Summary-Judgment Evidence (1) Another common error is to fail to file all of the summary-judgment evidence timely. (2) The movant s summary-judgment evidence must be filed at least twenty-one days before the time specified for hearing. Tex. R. Civ. P. 166a(c). The 6

12 nonmovant s summary-judgment evidence must be filed not later than seven days prior to the hearing. Id. Either party may seek and obtain leave of court to late-file any evidence. Id. But even then, evidence cannot support a summary judgment unless the evidence is filed before the judgment is entered. Id. (3) When you fail to timely file all of your summary-judgment evidence, one solution (as suggested above) is to seek leave to late-file the evidence. But get a clear ruling that grants such leave, because otherwise, the appellate court will presume that the trial court did not consider the late-filed evidence. See Dixon v. E.D. Bullard Co., 138 S.W.3d 373, 376 & n.1 (Tex. App. Houston [14 th Dist.] 2004, pet. granted, judgm t vacated w.r.m.). If your opponent files a motion to strike the late-filed evidence, denial of the motion to strike will not serve as leave to late-file the evidence. (4) If you are the movant, another option is the file the evidence and reset the summary-judgment hearing with the requisite 21-days notice. (5) If you are the movant, it is not a viable solution to file the omitted evidence as an attachment to a reply or as an attachment to a motion for rehearing. You should either (i) get leave to late-file the evidence, or (ii) refile your motion with the requisite 21-days notice. (6) Similarly, if you are the nonmovant, it is not a viable solution to simply late-file the evidence or to attach it to a motion for rehearing. You must either (i) obtain leave to late-file the evidence, or (ii) obtain a continuance so that your evidence will become timely. Be aware that moving for a continuance has its own error-preservation pitfalls. See Patton (7) Trial courts often take summary-judgment motions under advisement. When this happens, does late-filed evidence become timely if more than 21 days (or 7 days for the nonmovant) elapse between the time the evidence is filed and the time the court rules? The answer is no because the time periods are strictly construed based on the hearing date (or on the submission date if there was no hearing date). See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). (8) Note that you don t have to object to the untimeliness of the other side s evidence if there is no order granting leave to late-file the evidence. The appellate court will presume the trial court did not consider the evidence regardless of whether the nonmovant failed to object to the evidence. Luna v. Estate of Rodriguez, 906 S.W.2d 576, 582 (Tex. App. Austin 1995, no writ). (9) Note the special rule for discovery products that are not on file. Tex. R. Civ. P. 166a(d). You can file those discovery products like other summaryjudgment evidence, or you can file a notice containing a specific reference to those discovery products, together with a statement of intent to rely on the specified discovery products. Id. This notice must be filed within the normal deadlines. Id. VIII. TRAP #4: FAILURE TO TIMELY MAKE AND RENEW A MOTION FOR JUDGMENT M.O.L. IN A FED- ERAL JURY TRIAL. A. General Rules (1) In federal court, there is no motion for direct verdict or motion for judgment n.o.v. Instead, the proper motion is a motion for judgment as a matter of law ( motion for JMOL ). Fed. R. Civ. P. 50. The rules for preserving error through a motion for JMOL are tricky. (2) There are two types of motions for JMOL. One is a pre-verdict motion under Rule 50(a), while the other is a Rule 50(b) post-trial motion to renew the preverdict motion. Fed. R. Civ. P. 50(a), (b). (3) A Rule 50 motion for JMOL has two basic purposes: to enable the trial court to re-examine the question of evidentiary sufficiency as a matter of law if, after verdict, the court must address a motion for judgment as a matter of law, and to alert the opposing party to the insufficiency of his case before being submitted. MacArthur v. Univ. of Tex. Health Ctr., 45 F.3d 890, 897 (5th Cir. 1995). (4) In the Fifth Circuit, federal law governs the amount of evidence necessary to prevent a JMOL in a diversity case. Ellis v. Weasler Eng g, 258 F.3d 326, (5th Cir. 2001), amended, 274 F.3d 881 (5th Cir. 2001). B. Rule 50(a) Motions (1) A Rule 50(a) motion for JMOL is appropriate only after the nonmovant has been fully heard on an issue. Fed. R. Civ. P. 50(a)(1). In the Fifth Circuit, this generally means that a party has been fully heard when it has rested its case. Echeverria v. Chevron USA Inc., 391 F.3d 607, 610 (5th Cir. 2004). 7

13 (2) A Rule 50(a) motion must specify the judgment sought and the law and the facts that entitle the movant to the judgment. Fed. R. Civ. P. 50(a)(2). (3) The rule does not prohibit an oral motion, but it is preferable to make a Rule 50(a) motion in writing. (4) After a Rule 50(a) motion has been made, the nonmovant must be allowed an opportunity to cure any deficiency in its proof. See Echeverria, 391 F.3d at (5) Before the 2006 amendments, the movant had to renew its Rule 50(a) motion at the close of all evidence. See McKenzie v. Lee, 259 F.3d 372, 374 (5th Cir. 2001). After the amendments, it is sufficient to renew the Rule 50(a) motion after trial by filing a Rule 50(b) motion. Fed. R. Civ. P. 50(b); see 2006 Notes of Advisory Committee. Nevertheless, if the movant makes a Rule 50(a) motion when the other side rests, it is good practice to renew the Rule 50(a) motion after the close of all evidence. C. Rule 50(b) Motions (1) A Rule 50(b) motion must be filed no later than 28 days after entry of the judgment. Fed. R. Civ. P. 50(b). But if the motion addresses a jury issue not decided by a verdict, the motion must be filed no later than 28 days after the jury was discharged. Id. (2) The deadline for filing a Rule 50(b) motion is jurisdictional and cannot be extended. Fed. R. Civ. P. 6(b)(2); U.S. Leather, Inc. v. H&W P ship, 60 F.3d 222, 225 (5th Cir. 1995). (3) A Rule 50(b) motion should be in writing. See Fed. R. Civ. P. 7(b)(1)(A). You should do more than merely state that you are renewing the Rule 50(a) motion. See McGee v. Bauer, 956 F.2d 730, (7th Cir. 1992). (4) A Rule 50(b) motion can assert only the grounds raised in the Rule 50(a) motion. Arsement v. Spinnaker Exploration Co. 400 F.3d 238, 247 (5th Cir. 2005); see 2006 Notes of Advisory Committee. D. Consequences (1) Generally, a failure to make a Rule 50(a) motion waives the right to present a Rule 50(b) motion, as well as the right to challenge the sufficiency of the evidence on appeal. Navigant Consulting, Inc. v. Wilkinson, 508 F.3d 277, 288 (5th Cir. 2007). But the Fifth Circuit will construe the rule liberally and may excuse technical noncompliance when the purposes of the rule are satisfied. Id. Thus, a party s objections to 8 the charge on grounds pertaining to sufficiency of the evidence may preserve error. Id. (2) When a movant makes a proper Rule 50(a) motion and a proper renewed motion under Rule 50(b), the court of appeals will review the district court s ruling de novo, applying the same standard as the district court. Anthony v. Chevron USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002). This includes properly preserved complaints about the sufficiency of the evidence. Polanco v. City of Austin, 78 F.3d 968, 974 (5th Cir. 1996). (3) If a party did not file a Rule 50(a) motion, that party is not entitled to challenge the sufficiency of the evidence on appeal. Id. The standard of review on appeal then becomes plain error, under which the court reviews whether there is any evidence to support the verdict, regardless of the sufficiency. Id. Relief is limited to a new trial. Id. Reversal for plain error is rare. See McKenzie v. Lee, 259 F.3d 372, 374 (5th Cir. 2001). (4) If a party files a Rule 50(a) motion, but not a Rule 50(b) motion, the party waives any complaint on appeal about the sufficiency of the evidence. Unitherm Food Sys. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006). Again, relief is limited to a new trial. Id. at (5) You should be sure to obtain rulings on your Rule 50 motions. The time for filing a notice of appeal begins to run when the court enters an order disposing of the Rule 50(b) motion (assuming there are no other pending motions that could delay this deadline). Fed. R. App. P. 4(a)(4)(A). IX. TRAP #3: FAILURE TO FILE AND GET A RULING ON A ROBINSON MO- TION RELATING TO A METHOD- OLOGICAL FLAW. (1) In E. I. dupont de Nemours & Co. v. Robinson, 923 S.W.2d 549, (Tex. 1995), the Court held that scientific evidence must be reliable. Then, in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, (Tex. 1997), the Court held that scientific evidence that is unreliable is no evidence, and cannot support a judgment. Ordinarily, opinion testimony that is no evidence does not become evidence merely because no objection to it is lodged. E.g., Dallas Railway & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 380 (1956). And so it might have initially seemed that no trial objection was necessary to permit appellate complaint that an expert s opinion was unreliable and therefore no evidence.

14 (2) Not so. In Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998), the Court held that [t]o preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered. The reason for this requirement is to give the opposing party the opportunity to cure any defect in the evidence. Id. And to hold otherwise, said the Court, would usurp the trial court s role as gatekeeper of scientific evidence. Id. at 411. (3) Six years later, however, in Coastal Transport Co. v. Crown Central Petroleum Co., 136 S.W.3d 227, 233 (Tex. 2004), the Court revisited and clarified Maritime Overseas. It drew a distinction between a challenge that requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, as to which a timely challenge must be made, and one that is restricted to the face of the record, as for example where the testimony is speculative or conclusory on its face, which can be raised for the first time on appeal. (4) Drawing a line between Maritime Overseas challenges that are waived without objection and Coastal challenges that are not waived can sometimes be difficult. Clearly, challenges that the expert s opinion is conclusory, meaning that the opinion is offered without factual substantiation, e.g., Sparks v. Booth, 232 S.W.3d 853, 863 (Tex. App. Dallas 2007, no pet.), fall on the Coastal side of the line, as do challenges that the opinion is speculative. And, equally clearly, challenges to the expert s methodology that require consideration of other experts opinions regarding the proper methodology fall on the Maritime Overseas side of the line. (5) But some objections will fall close to the line between these categories. Arkoma Basin Exploration Co. v. FMF Associates 1990-A, Ltd., 249 S.W.3d 380, 388 (Tex. 2008). In particular, methodological challenges that are determinable on the face of the record would seem to fall under both the Maritime Overseas and Coastal tests. Suppose, for example, that an expert uses an appropriate methodology, but makes a mathematical or logical error in applying that methodology, or applies it to the wrong data or to inaccurate data? Or suppose that the methodology requires that a particular fact be true, and the record shows conclusively that the fact is untrue, or the expert has made a speculative assumption that it is true, or the expert has simply neglected to consider whether it is true? (6) Ultimately, the courts will tell us whether the methodology test or the face of the record test applies to these and similar challenges. Meanwhile, however, trial counsel should not aspire to make theirs 9 the test case where that ultimate pronouncement will be made, because the price of guessing wrong will be waiver of appellate complaint. Robinson reliability challenges should instead be timely made any time methodology is an issue. And, as always, a ruling (or a refusal to rule coupled with an objection to the refusal) is required. See generally Tex. R. App. P.33.1(a)(2). X. TRAP #2: FAILURE TO MAKE AN OF- FER OF PROOF OF EXCLUDED EV- IDENCE. A. Necessity (1) Tex. R. Evid. 103(a)(2) is explicit: an appellate complaint may not be predicated on a ruling that excludes evidence unless the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked. Yet offers of proof are often overlooked in the heat of the moment; even when counsel remembers the need to make an offer, the trial court often brushes the request aside with a we ll do that later, and then later never comes. (2) Those who rely on the exception to the offerof-proof requirement where the substance of the evidence was apparent from the context do so at their peril. First, whether something is apparent from the context is in the eye of the beholder. And second, Rule 103(a)(2) deals only with preservation of appellate complaint, not with the effect of that complaint on the outcome of the appeal. In Bobbora, the Dallas Court of Appeals waxed categorical about harmless error in the absence of an offer of proof: While the reviewing court may be able to discern from the record the nature of the evidence and the propriety of the trial court's ruling, without an offer of proof, we can never determine whether exclusion of the evidence was harmful. 255 S.W.3d at 335. Never is perhaps too strong a word here, but the risk of a harmless-error holding from failure to make an offer of proof is manifest and strong. (3) A reoffer of evidence is sometimes required. In Bean v. Baxter Healthcare Corp., 965 S.W.2d 656 (Tex. App. Houston [14 th Dist.] 1998, no pet.), the court held that a videotape of the plaintiff s breast implant explanation surgery was properly excluded as cumulative during the direct examination of the plaintiff s expert witness. 965 S.W.2d at Later, the defense expert offered testimony specifically based on his viewing of the videotape. The court of appeals

15 acknowledged that this latter testimony may have made the videotape admissible, but held that the plaintiff had waived any error in that regard by failing to reoffer the tape at that time. Id. at 660. (4) The right to make an offer of proof is absolute; refusal to permit an offer is reversible error unless the record is otherwise sufficient to show the nature of the offered evidence. E.g., Ledisco Financial Services, Inc. v. Vinacola, 533 S.W.2d 951, 959 (Tex. Civ. App. Texarkana 1976, no writ). B. Timing (1) An offer of proof preserves appellate complaint if: (1) it is made before the court, the court reporter, and opposing counsel, outside the presence of the jury; (2) it is preserved in the reporter's record; and (3) it is made before the charge is read to the jury. Bobbora v. Unitrin Insurance Services, 255 S.W.3d 331, 335 (Tex. App. Dallas 2008, no pet.). (2) The trial court must allow the offer of proof to be made as soon as practicable, and in any event before the charge is read to the jury. Tex. R. Evid. 103(b). The purpose of this requirement is to allow time for the trial court to correct its evidentiary error if it is persuaded that the evidence is admissible. An agreement among court and counsel to delay the offer beyond jury submission may or may not be enforceable; it would be better to avoid the question if at all possible. Where the trial court refuses to hear and rule on the offer before the charge is read, object! C. Form and Content (1) An offer of proof may consist of a short factual recitation by counsel of what the testimony would show. In re N.R.C., 94 S.W.3d 799, 806 (Tex. App. Houston [14 th Dist.] 2002, pet. denied). The offer must, however, describe the actual content of the testimony and not merely comment on the reasons for it. Id. It must be specific enough to enable the reviewing court to determine the admissibility of the evidence. Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. App. Houston [14 th Dist.] 2006, pet. denied). (2) The court may, or at the request of a party shall, direct the making of an offer in question and answer form. Tex. R. Evid. 103(b). There is an exception to this rule, born of necessity, when the exclusion of the evidence is on privilege grounds; there, only a narrative offer may be made. E.g., Scott v. State, 940 S.W.2d 353, 358 (Tex. App. Dallas 1997, pet. ref d). (3) Where the excluded evidence is an exhibit, the exhibit itself, if marked for identification and tendered to and retained by the court reporter, constitutes a sufficient offer of proof. Where it is deposition testimony, it is sufficient to introduce the relevant portion(s) of the deposition. It is dangerous, however, to introduce the entire deposition without specifying the offered portions. Compare Acadian Geophysical Services v. Cameron, 119 S.W.3d 290, 300 (Tex. App. Waco 2003, writ dism d by agr.) (en masse offer of entire deposition failed to preserve appellate complaint), with Hopper v. Chittaluru, 222 S.W.3d at (offer of entire deposition permissible where more than 90% was being tendered). (4) No offer of proof is complete unless it includes a request that the offered evidence be admitted. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex. 1980) (bill of exception unaccompanied by offer of evidence failed to preserve appellate complaint). And finally, get a ruling on the record! XI. TRAP #1: STATE COURT CHARGE OBJECTIONS AND TENDERS. A. General Rules (1) It is the trial court s duty to prepare and submit the charge. See Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 158 (Tex. 1994); Tex. R. Civ. P. 271, 272, 277, 278. But this fact does not lessen the burden on the parties to preserve error. (2) In general, there are two ways to preserve error: (i) object to an omission from the charge or to the charge as given; and (ii) tender a written request for a question, instruction, or definition. Properly invoking these two methods has become a labyrinth daunting to the most experienced trial lawyer. State Dep t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 240 (Tex. 1992). (3) In Payne, the court vowed to simplify the procedure for preserving error in the charge: The procedure for preparing and objecting to the jury charge has lost its philosophical moorings. There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. The more specific requirements of the rules should be applied, while they remain, to serve rather than defeat this principle. Id. at 241. In the 18 years since Payne was decided, little progress has been made to simplify the process. 10

16 B. Trial Court s Duties (1) The charge must be in writing, signed by the court, and filed with the clerk. Tex. R. Civ. P. 272; see Tex. R. Civ. P (2) The trial court must submit the questions, instructions, and definitions that are raised by the pleadings and evidence. Tex. R. Civ. P The charge must be in proper form to enable the jury to render a verdict. Tex. R. Civ. P (3) The trial court must, whenever feasible, submit the charge using broad-form questions. Id. But it is not always error to submit granulated questions. See H. E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, (Tex. 1992). Nor is it always error-free to submit broad-form questions. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, (Tex. 2000). (4) The court must submit the proposed charge to counsel so that counsel has a reasonable time to review the charge and present objections. Tex. R. Civ. P If you believe the court has given you insufficient time, a suggested way to preserve error is as follows: (i) ask that the record reflect the time you received the proposed charge and the time when you must start your objections; (ii) object that the amount of time is insufficient; (iii) ask for more time, and be specific about the amount of time you need; (iv) be specific about why you need more time; and (v) after verdict make a record of the additional charge objections you would have made if you had been given more time. See Dillard v. Dillard, 341 S.W.2d 668, 675 (Tex. Civ. App. Austin 1960, writ ref d n.r.e.). (5) The rules require the trial court to read the entire charge to the jury before closing arguments. Tex. R. Civ. P (6) It is not error for the trial court to refuse to submit shades or phases of a question. Tex. R. Civ. P C. Objections (1) Objections to the charge must be: (i) in writing; or (ii) dictated to the court reporter in the presence of the court and opposing counsel. Tex. R. Civ. P If the objections are written, be sure they are filed of record with the clerk. If the objections are dictated, the court and opposing counsel must be present to hear the objections. Id. Do not let the court convince you to dictate the objections to the court reporter outside the court s presence. (2) Objections must be presented before the charge is read to the jury. Id. Don t let the trial judge convince you to dictate the objections while the jury is deliberating. The rules create a presumption that the objections were timely, unless otherwise noted in the record. Id. (3) You must get the court to rule on your objections before the charge is read to the jury. Id. The court may do so by dictating its rulings to the court reporter in counsel s presence or, if the objections are in writing, by endorsing the rulings on the written objections. Id. If the rulings are not reflected in the record, consider making a formal bill of exceptions or a bystander s bill. See Tex. R. App. P (4) Your objections must distinctly point out the objectionable matter and the grounds of the objection. Tex. R. Civ. P (5) Objections are waived if they are obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests. Id. The same is true when you tender requested questions, definitions, or instructions. Id. (6) You cannot object to one portion of the charge by adopting objections you made to another portion of the charge. Id. You should not adopt another party s objections to the charge. See Wright Way Constr. Co. v. Harlingen Mall Co., 799 S.W.2d 415, (Tex. App. Corpus Christi 1990, writ denied). (7) It is almost always useless to object that the evidence is factually insufficient. If there is some evidence to create a fact question on a material issue, the trial court must submit the question even if the evidence is factually insufficient. See Tex. R. Civ. P An objection that the evidence is factually insufficient to support the question may be made for the first time after verdict. Tex. R. Civ. P (There is at least one exception where it might make sense to assert a factual-insufficiency objection. When a question submits multiple elements, but only one answer blank, and you believe that the evidence is factually insufficient to support one or more elements, a factual-insufficiency objection as to that element (or those elements) may help preserve Casteel-type error. See Harris County v. Smith, 96 S.W.3d 230, (Tex. 2002).) (8) You can preserve error by objecting that the evidence is legally insufficient to support a finding on a question or an element. But you can also preserve this objection by making it for the first time after verdict. Tex. R. Civ. P

17 (9) Counsel has the right to make charge objections outside the presence of the jury. Tex. R. Civ. P Do not let the trial judge convince you that you must make your objections in front of the jury. D. Written Tenders (1) When you make written requests for questions, instructions, or definitions, you must do so within a reasonable time after the trial court gives you the charge for review. Tex. R. Civ. P (2) Requests for questions, instructions, or definitions must be made separate from your charge objections. Id. As a practical matter, this is not hard to do, since your requested questions, instructions, and definitions should be tendered in writing, while your charge objections will almost always be dictated. (3) You must get the trial judge to sign and endorse refused on your written tenders. Tex. R. Civ. P (4) The rules state that when a trial court modifies a requested question, instruction, or definition, the court should sign it and endorse it Modified as follows: (stating in what particular the judge has modified the same) and given, and exception allowed. Id. As a practical matter, this endorsement is almost never done as specified in the rules. To preserve error, it should be sufficient have the trial court endorse refused on your tender. The differences between your tender and the charge as given will then be apparent from the record. (5) When a written tender is properly endorsed refused or modified, it is conclusively presumed that the requesting party presented the tender at the proper time and that all legal requirements have been met. Id. (6) The Texas Supreme Court is currently considering a case that illustrates a common problem with preserving error through written tenders. Jelenik v. Casas, No CV, 2008 WL , at **7-8 (Tex. App. Corpus Christi Jul. 29, 2008, pet. filed [No , argued 2/18/10]). There, the defendant wanted the trial court to submit unavoidableaccident, new-and-independent-cause, and sole-proximate-cause instructions. The defendant s counsel apparently tendered those instructions to the court during an informal, off-the-record conference. During the subsequent formal charge conference, defense counsel mentioned those instructions, and the trial court inquired whether they were the same instructions that he was shown earlier. Counsel responded affirmatively, and the court then said, All of those that were shown to me and that you made a request for are denied. Id. at *8. The court of appeals held that error was waived since the written tenders were not in the record. Id. Until we hear from the Supreme Court otherwise, the lesson from this case is to make absolutely sure that your written tenders make it into the clerk s file and are endorsed refused. Also, consider making a formal bill of exceptions or a bystander s bill, if necessary to preserve error. See Tex. R. App. P (7) As to a question on which you have the burden, there is no reversible error if your written tender is not in substantially correct form. Tex. R. Civ. P (8) Similarly, as to instructions or definitions (no matter who had the burden on the issue), there is no reversible error if your written tender is not in substantially correct form. Id. E. Deemed Findings (1) With respect to a claim or defense on which your opponent had the burden, if the charge contains no element of that claim or defense, you need not object to the omission. Tex. R. Civ. P That claim or defense is waived, unless it has been conclusively established. Id. (2) When one element of your opponent s multielement claim or defense is included in the charge, you must request the omitted elements or object to their absence. Id. (The one exception is when the submitted element is not necessarily referable to the claim or defense at issue. In that case, you need not preserve error, since that claim or defense is waived. See id.) If you fail to object or request, then the parties have effectively submitted the omitted elements to the trial court for findings. Id. If the trial court makes no written findings on those elements, then findings are deemed in support of the judgment that is entered. Id. F. Summary In summary, the rules for preserving error with respect to the charge depend on three variables: (i) whether the problem is a defect in, or an omission from, the charge; (ii) whether the problem involves a question as opposed to an instruction or definition; and (iii) whether the problem relates to a claim or defense on which you have the burden or on which your opponent has the burden. With those variables in mind, the general rules for error preservation are as follows: (1) Omitted Question: If it is a question on which you have the burden, you should request the question in writing. If it is a question on which your opponent has the burden, you need do nothing if the entire claim or defense is omitted. If only an element of the claim or defense is omitted, you should object to 12

18 the omission or tender a written request for the omitted element. (2) Omitted Instruction or Definition: If it is an issue on which you have the burden, you should object to the omission and also tender a written request. If it is an issue on which your opponent has the burden, you should object to the omission and also tender a written request. (3) Defective Question, Instruction, or Definition: If it is an issue on which you have the burden, you should object to the defect and tender a written request. If it is an issue on which your opponent has the burden, you should object, but a written tender is also recommended. XII. CONCLUSION. Reversing a judgment on appeal is hard enough even if appellate complaint has been properly preserved; if it has not, reversal is virtually impossible. Trial counsel s focus must remain on winning the case before the jury or trial judge, but the safety net of preserved appellate complaint should never be neglected. If the economics of the case justify it, assisting counsel can be tasked with making sure the proper predicates for appellate review have been laid. But one way or another, the TRAPs (pun intended) laid by the rules for those who neglect them should be avoided. 13

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