THE TRIAL OF A FAMILY LAW JURY CASE - c.ymcdn.comc.ymcdn.com/.../The_Trial_of_a_Family_Law_Ca.pdf · 1 THE TRIAL OF A FAMILY LAW JURY CASE JOHN F. NICHOLS, SR. PATRICK W. UPTON 713-816-5090

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THE TRIAL OF A FAMILY LAW

JURY CASE

JOHN F. NICHOLS, SR.

PATRICK W. UPTON

713-816-5090 (JN Cell)

[email protected]

STATE BAR OF TEXAS

2014 Advanced Family Law Course

San Antonio, Texas

August 3-7, 2014

mailto:[email protected]

THE ART OF PERSUASION

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Things That Bug Juries

Time wasters

Legalese without explanation

Not being able to ask questions

Attorney bickering

Cheaters

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Things Juries Most Enjoy

Learning about the process

The interaction – people watching

Seeing people get a fair trial

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Golden Rules of the Courtroom

Be prepared

Be brief

Be professional

Be seated

THE PLAYERS

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Trial Lawyer Types

Paper Shuffler

Journeyman – works off of rote

Natural – natural talent, little preparation

Stone Cold Trapper – listens, learns,

studies his/her craft

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Styles and Mannerisms

Jack Rabbit

Turtle

Positive

Negative

Jolly Golly

Magic Man

Razzle Dazzle

Methodical

High Roller

Joe College

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Make – Up of Trial Lawyers

Big Ticket

Small Ticket

Older

Affected

Pressure

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Characteristics of

Great Trial Lawyers

Polished

Crafty

Entrepreneurial

Good Service

Ambitious

And above all:

his/her handshake means something

Fascination With People

Self Starter

Solitary

Helper

Knows No Strangers

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Do’s and Don’ts of Trial Lawyers

Sell yourself before you sell the jury

Try the case for the right reasons

Cut out the small talk, get down to business

Forget about jury stereotypes

If you get knocked down, get back up

Show your anger, when appropriate

Always be learning

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Do’s and Don’ts of Trial Lawyers

You are in charge of your case

Get, be, or feel, comfortable

If you get hot, stay hot

Be positive

You can be replaced

Give it everything you have

Leave your work at the office or courtroom

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Jurors

Ethnic Posture

Professions, Trades or Businesses

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Judge Types

Jurist

Principled

Intellectual

Independent

Lost

Interrupter

SELLING AND

PERSUADING

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Selling Your Case

You are a salesperson

Every trial is selling, ABC (always be

closing)

Every sale has 3 components

Sellers (you)

Of products (client)

To buyers (judge/jury)

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Sales Presentations

Pre-demonstration pitch – opening

statement

Presentation of the product (show and tell) –

present evidence

Call for action – closing argument

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Presentation to Jury

Decide on a story model

Juries are story builders

Make opening statements a road map

Witness credibility = witness believability

Lawyer credibility = case believability

Anchor to your theme or story model

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Voir Dire

Jurors want to talk, let them –

gather information

Look for people who are materially (as

opposed to equivocally) biased against

your case

Look for “unshakeable convictions”

Look for “fixed opinions”

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Body Language

Everyone communicates with nonverbal

signals

Jurors perceive through sight (85%),

hearing (8%) and other senses (7%)

Congruence = believability

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Juror Buy Signals:

Non-Verbal Cues

Trial lawyer / witnesses – presenter

Juror – sender of signal “my state of mind

is favorable to the presenter”

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Common “Buy Signals”

Open palms

Relaxed body posture

Happy face

Synchronized body movements

Expression of positive feelings

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Common “Lie Signals”

Changes in mood, stance, posture and

facial expression

Finger over mouth – determine whether

witness is lying, or thinking about his/her

answer to the question

Overstated feelings – concealment of a

more accurate presentation of mood

Freudian slips and editing

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Common “Lie Signals” – con't

Decrease in gestures

Decrease in words used

Incongruent body signals

Decrease in eye contact

Autonomic signals – sweating, breathing,

mouth dry

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Believability Scale

Autonomic signals (unconscious)

Legs and feet

Trunk

Hand

Face

Verbalizations

PRE-TRIAL CONFERENCE

AND MOTIONS-IN-LIMINE

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1. Governed by T.R.C.P. 166

2. Discretionary with the court.

3. Purpose is to consider:

1. Pleas, motions, exceptions;

2. Amendment of pleadings;

3. Set discovery deadlines;

4. Determine parties contentions;

5. Simplification of contested issues;

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(con't) 6. Stipulation of fact;

7. Identify matters for court rulings;

8. Exchange witness lists and I.D. the subject matter

of their testimony;

9. I.D. expert witnesses;

10. Agree on applicable law and law questions;

11. Exchange jury charge, or fact findings and law

conclusions in non-jury cases;

12. Exchange exhibits and stipulate authenticity and

admissibility;

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(con't) 13. Written objections to exhibits;

14. Determine need for master/auditor;

15. Encourage settlement discussions;

16. Any other action aiding in disposition of the matter;

17. Determine compliance with local rules;

18. Rule on motions to strike for failure to state

address, phone number, and subject matter of

testimony;

19. Determine right to open and close;

20. Determine size of jury panel;

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(con't) 21. Determine number of preemptory challenges;

22. Determine party alignment;

23. Determine procedure for challenges for cause;

24. Determine Daubert/Robinson challenges;

25. Determine Motions-In-Limine;

26. Taking judicial notice of facts or laws; and

27. Striking jury requests.

4. Discuss Internet and Social Media use by jury.

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(con't) Motions-In-Limine (Jury)

1. Ruling on motion does not, in and of itself, preserve

error;

2. Purpose is to draw attention to possible inadmissible

evidence;

3. Effect is to require bench conference before going

into challenged area or evidence;

4. Effect is also to alert the court to potential problem

areas;

5. Submit law, if possible with motion;

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(con't) Motions-In-Limine (Jury)

6. Submit order with motion;

7. Subject matter of motion is limitless;

8. Denial of challenge to motion requires offer of proof

to preserve error; and

9. Sanctions for violation include, default judgment,

striking pleadings, instruction to jury.

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VOIR DIRE

EXAMINATION

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Voir Dire Purposes

Two Purposes

Test qualifications for challenges for

cause – material bias

Gather information for peremptory

challenges

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Trial Court Discretion

Discretionary – as to how voir dire is

conducted

Right/Fair opportunity to question panel

Bill of Exceptions/Demonstrate Abuse of

Discretion

Offer list of questions to be asked as part

of Bill of Exceptions

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Record

No record = no complaint

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Challenge to Array (TRCP 220)

Remarks at empanelling

Central jury room

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Excusing Jurors

Only Judge can excuse jurors

Not court personnel

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Jury Shuffle (TRCP 233)

Demand before Voir Dire

Request must be granted

Only one shuffle per case

Harmless error rule applies

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Statutory Disqualifications

Not a resident of county

Not qualified to vote or no Texas drivers

license

Criminal history

Blanks in forms – must question

Literacy – must question

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Statutory Disqualifications -- Cause

Stock holder

Materially biased or prejudiced in favor of

or against a party or the subject matter

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Determining Bias or Prejudice

Cortez and Hafi cases

Matter must be pursued

Court must have grounds to believe

material bias

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Material Bias v. Equivocal Bias Material bias disqualifies

Recantation at prodding of counsel is insufficient

Equivocal bias does not disqualify

“Leaning” bias does not disqualify

An “unshakeable conviction” disqualifies

Venire member can be rehabilitated after expressing apparent or equivocal bias

Challenges for cause on material bias do not turn on magic words

Rehabilitative statements that a person can be “fair and impartial” may still disqualify

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Bias or Prejudice

Disqualifications for Cause

Having a “fixed opinion” is sufficient to justify

disqualification

Judge has no discretion once material bias or prejudice

is established

Non-belief in cause of action is sufficient to disqualify

“Concealed bias” will allow party a new trial upon

proof

Concealed bias is giving a deliberate incorrect answer

to a material question, which caused harm

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Preserving Error on

Challenge for Cause

Demonstrate a juror should be removed for material bias

Move to strike the juror

Get a ruling from the court on a challenge for cause

Object to the court’s denial of a challenge for cause

Inform the court that you will exhaust your preemptory challenges because of the court’s denial of your challenge for cause

After exercising a preemptory challenge on a juror previously challenged for cause, point out the specific objectionable juror that you would have struck and who now remains on the jury list

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Proper and Improper

Questions and Comments

It is improper to require the jury to commit

to certain conclusions, verdicts or views

Cannot advise jury of the effect of their

answers

Cannot inquire whether a juror has been

convicted of an offense which disqualifies

the juror or whether he stands charged

with theft or any felony

OPENING STATEMENT

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Opening Statement

1. Governed by T.R.C.P. 265 (a), which provides that the

purpose of an opening statement is to tell the finder-of-

fact, judge or jury:

1) Claims made;

2) What you expect to prove; and

3) The relief sought.

2. Use concept of “Reframing.”

1) Feel – identify belief system

2) Felt – link to belief system

3) Found – build a new belief system 48

Opening Statement (con't)

3. Talk about how client’s pride or dignity has been

affected or taken.

4. Correcting injustice – justice is an ideal but injustice is

something jury can correct.

1) Point out injustice.

2) Show the rightness of your side.

3) Tell the jury they will have the privilege or

opportunity to correct the injustice.

5. Use storytelling.

1) Use .25¢ words.

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2) Use words that describe your case like: “crushed,”

“shamed,” and “mangled.”

3) Use expressions that set the theme like: arrogance

of wealth” and “prisoner in his own body.”

4) Use adages to convey a simple message like: “it’s

not what you say, it’s what you do;” “it’s my way or

the highway;” “there is no such thing as a non-

working mother.”

5) Don’t be afraid to discuss money because it is a

statutory method for correcting injustice.

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6. Test of Effectiveness of Opening Statement.

If the jury were to retire immediately after the opening

statement would they feel compelled to return a verdict for

your client.

7. Opening Statement Do’s and Don’ts:

1) Never waive opening statement;

2) Divide opening statement into two parts: liability and

damages.

3) Separate elements of damages;

4) Use demonstrative evidence;

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5) Use headlines;

6) Set forth the jury questions;

7) Describe your “solid” witnesses;

8) Re-introduce your client;

9) Never object unless you know you will be sustained;

10) Have the opening statement reported;

11) Establish your credibility;

12) Clarify your case for the jury;

13) Never criticize or ridicule venire men struck from

panel;

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14) Don’t engage in histrionics;

15) Communicate with all members of the jury;

16) Avoid legalese;

17) Establish eye contact;

18) Avoid self-deprecation;

19) Always address the court; and

20) Avoid body language reaction to opposing counsel’s

opening statement.

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PREDICATES, FOUNDATIONS,

AND MAKING AND MEETING

OBJECTIONS

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EVIDENCE

Keeping It In, Keeping It Out –

Preservation of Error Through

Making and Meeting Objections In

Texas Civil Law

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Introduction

This part of the article covers the “basics” of evidence, predicates and foundations, and preserving error in the ten (10) phases of a case.

Scope of Article

The article is divided into the ten phases of a Texas civil law case:

(1) Pre-trial hearings, motions, and conferences;

(2) Jury selection (if applicable);

(3) Opening statements;

(4) Presentation of evidence;

(5) Motion for directed verdict;

(6) Charge conference (if applicable);

(7) Closing arguments;

(8) Receipt of verdict;

(9) Post-verdict motions; and

(10) Request for findings (non-jury).

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Library References

The following are “must have” publications in their latest version:

(1) Texas Objections – James Publishing;

(2) Family Law Section Tool Kit;

(3) Family Law Section Predicates Manual;

(4) O’Connor’s – Texas Rules of Evidence;

(5) O’Connor’s – Specialty Books

(6) Judge Wenke’s – Making and Meeting Objections;

(7) O’Connor’s Texas Civil Trials;

(8) Steven Lubet’s Modern Trial Advocacy 3rd Edition; and

(9) ABA’s Electronic Evidence and Discovery Handbook.

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Texas Bar CLE References

The best deal going!

State Bar of Texas Online Library – 16,000+ articles.

$295.00 per year!!!

(subscription)

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Documentary & Demonstrative

Evidence

The Basics. M - Mark

I - Identify

A - Authenticate

O - Offer

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Documentary & Demonstrative

Evidence

The “Evidentiary Tree” -- Overview

1. Preliminary questions – Rule 104

2. Relevance – Rule 401

3. Authenticity – Rule 901

4. Self authentication – Rule 902

5. Hearsay & exceptions – Rule 801, 803

6. Best evidence rule – Rule 1001-1008

7. Probative value vs unfair prejudice – Rule 403

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Rule 104 – Preliminary Questions

For Admissibility

1. Qualifications to be a witness. 2. Existence of privilege. 3. Admissibility of evidence determined by the court. 4. Relevancy conditioned on fact – “connecting it up.”

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Rule 401 - Relevance

1. Does it have the tendency to make the existence of any fact “more or less probable?”

2. Relevance does not have to carry any particular

weight. 3. The question is: “Does it have any tendency to prove

or disprove a consequential fact in the litigation?”

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Rule 901 - Authenticity

1. Testimony of witness with knowledge: Rule 901(b)(1).

2. Comparison by the trier of fact, or by expert

witnesses, with a specimen which has been authenticated: Rule 901(b)(3).

3. Circumstantial proof of the evidence itself: Rule

901(b)(4).

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Rule 901 - Authenticity

4. Public records. Rule 901(b)(1). 5. Evidence produced as a result of an accurate process or

system. Rule 901(b)(9).

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Rule 902 – Self Authentication

1. Official publications: Rule 902(5). 2. Self authentication by inscriptions, signs, tags or labels: Rule

902(7). 3. Authentication of regularly conducted business: Rule 902(11).

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Rule 801 & 803– Hearsay &

Exceptions

Rule 801 – Hearsay – Electronic Evidence 1. Is an electronic writing a statement by a declarant within

the meaning of 801(a)? 2. A computer generated printout does not involve a person,

so it cannot be hearsay. 3. The “header” on a fax is not hearsay. 4. Email offered to prove that a relationship existed between

two parties to the conversation is not hearsay, it is an “operative fact.”

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Rule 801 & 803 – Hearsay &

Exceptions

5. E-mails between parties to a contract that define the terms

of a contract, or prove it’s content are not hearsay they are operative facts.

6. A failure to raise a hearsay objection means that the

evidence may be considered for whatever probative value the finder-of-fact chooses to give it.

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Exceptions

Rule 803 – Hearsay Exceptions and Electronically Stored Information. 1. Rule 803(1) – Present sense impression. 2. Rule 802(2) – Excited utterance. 3. Rule 803(3) – Then existing state of mind or condition. 4. Rule 803(6) – Business records.

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Exceptions

5. Rule 803(8) – Public records. 6. Rule 803(17) – Market reports, commercial publications.

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Rule 1001-1008 – Best Evidence Rule

1. Printout of e-mails shown to reflect the data accurately,

is an original (and not the screen). 2. The question is: Does it accurately reflect the data?

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Rule 403 – Balance of Probative Value With Unfair Prejudice

Electronically stored information has been found to be unduly prejudicial: 1. when it contains offensive or highly derogatory language; 2. when there is substantial danger that a jury might mistake

computer animation for actual events; 3. when considering summary evidence; and, 4. when the court is concerned with the reliability of the

accuracy of the information.

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Examples of Predicates for Admissibility:

1. Photographs 2. Business records 3. Audios 4. Videos 5. Map 6. Financial information statements 7. Handwritten letters 8. Police reports 9. Object of clothing

Examples of Predicates for Admissibility:

10. Bank records 11. Deposition excerpts 12. Summaries 13. Expert reports 14. Mental health records 15. E-mails 16. Summaries of testimony

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Be Judicious in your Objections

Don’t object unless the evidence will hurt your case.

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There are two (2) kinds of Evidence:

1. Direct Evidence – See, hear, touch, or smell – lipstick on collar.

2. Circumstantial Evidence – Logical and legal inferences from facts proved – bucket of paint on car.

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There are three (3) Forms of

Evidence:

1. Testimonial – Oral of written (depositions)

2. Nontestimonial Evidence:

A. Documentary – paper:

1. Business Records 2. Medical Records 3. Computer Records 4. Government Records 5. Publications

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There are three (3) Forms of

Evidence: (con’t)

B. Demonstrative – things: (1) Clothing (2) Charts (3) Videos (4) Photographs (5) Body language

3. Electronic Evidence (Hybrid): A. Testimonial B. Nontestimonial

(1) Wiretaps (2) E-Mails (3) Videos (4) Audiotapes

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Predicates/Foundations:

1. Admissions (1) Party opponent (2) Implied admission (3) Judicial admission

2. Authentication

(1) Writing (2) Voice (telephone calls) (3) Physical items clothing (4) Photographs (5) Tape recordings

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Predicates/Foundations: (con’t)

3. Self Authentication (1) Public documents (2) Certified copies (3) Official publications (4) Public documents (5) Newspapers / periodicals (6) Business records affidavit (7) Attorneys fees affidavit

4. Best Evidence Rule

(1) Original required (Auth Q’ed) (2) Original not required

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5. Character Evidence (1) Reputation (2) Truthful / untruthful 6. Charts/Diagrams

7. Depositions 8. Foreign Law

(1) State (2) Country 30 day notice / translation

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9. Goodwill (1) Personal (2) Business

10. Hearsay

(1) Operative facts (2) Hearsay exceptions

11. Impeachment (Credibility) (1) Live Testimony (2) Deposition

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12. Judicial Notice (1) Adjudicative Facts (TRE 201) - generally known - easily determined - relevance - request must be made (2) Legislative Facts - helps court determine legal reasoning and law

making process (3) Law (Foreign State – TRE 202) - motion - copy of law attached - fair notice to opposing party - request must be made 83


(4) Law (Foreign Country – TRE 203) - 30 days notice - translation to English (5) Law (Ordinances, Agencies, Register) - same requirements as TRE 202 13. Shorthand Rendition (1) TRE 611 & 1006 - court controls mode of interrogation - use of summaries (2) Summaries prepared by witness (3) Witness reviewed underlying data (4) Witness describes underlying data (5) Summary is fair compilation of exhibits

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14. Summaries (1) TRE 1006 (2) Voluminous data otherwise admissible (3) Not conveniently examined by court (4) Underlying data available for inspection (5) Court has discretion to relax best evidence rule

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General Rules in the Presentation of

Evidence: 1. Relevance 1. Does it make the evidence on a material point more

or less probable? 2. Do pleadings raise the issue? 3. Exclusion on special grounds its probative value is

out weighed by: a. Danger of unfair prejudice b. Confusing the issues c. Undue delay d. Cumulative

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Evidence: (con’t)

2. Illegally Obtained Evidence Q. It is admissible or inadmissible in a civil

proceeding. 3. Rulings on Evidence – Must have a ruling: (1) Express; or (2) Inferred or implied. 4. Effect of Erroneous Ruling – no error unless a

substantial right of the party is affected.

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Evidence: (con’t)

5. Exclusion of Evidence 1) Make substance of excluded evidence known to

court. 2) Make offer of proof: a. What b. When - Testimonial - Documentary - Demonstrative 6. Mode of Interrogation of Witnesses (1) It has reasonable control over mode and order of

interrogation of witnesses. (2) Can avoid needless consumption of time. (3) Protect witnesses from harassment and undue

embarrassment. 88


Evidence: (con’t)

7. Scope of Cross-Examination (1) Restricted (2) Wide Open – any matter relevant to any issue in

the case, including credibility. 8. Leading Questions (1) Adverse witness, party (2) Hostile witness 9. Opinion Testimony (1) Expert opinion (2) Lay opinion

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Evidence: (con’t)

10. Expert Qualifications (1) Hard science (2) Soft science 11. Remainder of Related Writings – When in fairness, it

should be considered contemporaneously. 12. Piggyback Objections (1) General (2) Specific (3) Joinder

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Evidence: (con’t)

13. Settlement (Objection) Negotiations (1) “Opening the door” (2) TRE 408 14. Criminal Prosecutions (1) Conviction (timing) (2) Punitive damages 15. Rules for Preservation of Error on Trial Objections (1) You must object (2) You must object timely, in the first instance

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Evidence: (con’t)

16. Mode of Making Objections (1) Written Objections - Before trial - During trial (2) Oral Objections - Running - Repetitive (3) Specific, not general 17. Common Objections (1) Asked and answered (2) Argumentative (3) Assumes facts not in evidence (4) Best evidence (5) Compound 92


Evidence: (con’t)

(6) Demonstrative evidence lacks foundation (7) Hearsay (8) Immaterial (9) Incompetence – no personal knowledge (10) Judicial notice – court file (11) Leading and suggestive (12) Misstates former testimony (13) Non-responsive (14) Calls for opinion / conclusion (15) Violates parole evidence rule (16) Privilege (17) Call for general narrative (18) Refresh recollection (mind is evidence) (19) Speculation / conjecture

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Evidence: (con’t)

18. Conduct of Counsel (1) Prompting the witness (2) Attempting to intimidate witness (3) Side bar remarks (4) Arguing with witness (5) Testifying (6) Allusive language (7) Failure to maintain place at bar (8) Privileged communication (9) Assumes facts not in evidence (10) Collateral source rule (11) Disqualified / violation of “The Rule” (12) Hypothetical assumes fact / not in evid.

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THE COURT’S CHARGE

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Purpose of the Jury Charge

The charge is the collection of questions,

definitions and instructions the court submits to

the jury to resolve the factual disputes in the

case. It is the trial court’s responsibility to

submit a proper charge. Spencer v . Eagle Star Ins.

Co., 876 S.W.2d 154, 157 (Tex. 1994)

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Jury Charge Overview Part 1 – covers common mistakes, library

references, recommended uses of the jury charge, the evolutionary cycle of broad-form submissions, current hot topic questions related to the jury charge, and a checklist for preservation of error

Part 2 – covers pre-trial orders, pleadings, fair notice in pleadings, trying issues by consent, and the charge conference

Part 3 – covers specific areas of objections and appellate review

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Part 1

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The Nuts and Bolts

Judicial Survey of Common Mistakes

Library References

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The Nuts and Bolts Recommended Uses of the Jury Charge Before and

During Trial

Prepare a draft of the Charge at the outset of the case

Use the Charge as a roadmap for the case and evidence development

Keep track of the changing issues

Use a draft of the Charge at the pre-trial conference

Use the Charge throughout the trial

Use the Charge in voir dire

Use the Charge in the opening statement

Use the Charge as a checklist

Use the Charge in closing argument

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The Nuts and Bolts

Evolution of the Rules Governing Jury

Submissions

Background History

Proposed Rule Changes

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The Nuts and Bolts

Hot Topic Questions

When is broad form submission not feasible

under Casteel?

Cases concerning liability and damages.

What is the latest word on instructions?

Golden Eagle Archery, Inc v. Ronald Jackson

Diamond Offshore Management Co. v. Guidry

Sunbridge Healthcare Corp. v. Penny

Taylor v Texas Dept. of Protective and Regulatory

Services

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The Nuts and Bolts

How do you preserve error and what

requires a remand versus a rendering on

charge errors under Payne?

What is an application of the ‘whenever

feasible’ requirement?

Hypothetical

What is the proper submission under the

hypothetical?

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The Nuts and Bolts Do grounds exist for divorce between Party A and Party B as to:

1. Insupportability of the marriage

between Party A and Party B __________

2. Cruel treatment by Party A

toward Party B, if any? __________

3. Cruel treatment by Party B

toward Party A, if any? __________

4. Party A’s adultery, if any? __________

5. Party B’s adultery, if any? __________

6. Party A’s abandonment of

Party B, if any? __________

7. Party B’s abandonment of

Party A, if any? __________

8. Party A and Party B living

apart, if any? __________

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The Nuts and Bolts

Checklist for Preservation of Error in the Court’s Charge

Court’s charge functions as the verdict

Pleadings + evidence + verdict = judgment

Three kinds of charges: questions, definitions, and instructions

Three kinds of problem charges: omitted, defective, and unnecessary charges

“The Test” for preservation of error in the charge conference

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The Nuts and Bolts

Rules for preserving error

Step-by-Step analysis

Omitted questions [yours]

Omitted questions [theirs]

Omitted definitions and instructions [yours and theirs]

Defective and immaterial questions, definitions, and instructions [yours and theirs]

Objected to question

Unobjected to question

Limiting or exclusionary instructions

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Part 2

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Getting It Right

Pre-Trial Orders – Tex. R. Civ. P. 166

Pleadings – A Blueprint for the Charge –

Tex. R. Civ. P. 47, 278

Fair Notice Required in Pleadings –

Tex. R. Civ. P. 47

Test of fair notice

Cannot be surprised, prejudiced or misled by

evidence

Test for fatal variance

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Getting It Right

Trial by Consent – Tex. R. Civ. P. 67

Exceptional cases only

Evidentiary stage

Charge conference

Trial amendment

Appellate review

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Getting It Right The Charge Conference

Request and Tender Stage – Rules for Requesting Charges

Should be in writing

Should separate requests from other requests

Should separate requests from objections

Requests should be marked, refused, signed and filed

Must be present before submission

Must be raised by pleading and evidence

Must be broad for “whenever feasible”

May submit multiple grounds within question

Must submit ultimate/controlling questions only

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Getting It Right Omitted claims or defenses are waived

Omitted elements of claims or defenses are deemed found

Definitions and instructions act only as aids to jury

Wide discretion given on definitions and instructions

Test for abuse of discretion on definitions and instructions

Presumption of average intelligence on the jury

Must only define words of art

Must submit charge in substantially correct form

“En Masse” requests must not be confusing and must be totally correct

Must predicate all conditional requests

Try to keep it simple

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Getting It Right

Objection Stage – Rules for objecting to charges

Must object before submission

Must make objections before the court

Ruling should be apparent

Purpose of objecting before submission – get it right

Objections must be distinct and specific

Test: “Was the court fully cognizant?”

Stock objections – not good

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Getting It Right

Obscured and concealed objections – no good

Voluminous objections – no good

Invited error – waiver

Laundry list objections – no good

Look at entire charge for error in submission

Order of submission – up to the judge

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Part 3

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Fixing Any Errors

Specific Areas of Objections

Objections to the charge as a whole

Charge not signed by the judge

Texas pattern jury charges – safest route

Charge not filed with the clerk

Charge not presented to counsel for inspection

Reasonable time not given

Charge submits a ground which is not a basis for

recovery

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Fixing Any Errors

Omitted charges

If it is the proponent’s claim – submit

If it is the opponent’s claim – do nothing

All definitions and instructions, proponent or

opponent – submit

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Fixing Any Errors

Defective questions – object

No pleadings

No evidence

Variance between pleading and proof

Duplicative questions

Shades and phases

Burden of proof not placed on either party

Burden of proof improperly placed on the wrong party

Comment on the weight of the evidence

Advises the jury of the effect of the answer

118

Fixing Any Errors

Disjunctive submission

Not an ultimate question controlling the disposition of

the case

Inferential rebuttal question

Uncontroverted question

Immaterial question

Question permitting a double recovery

Assumes material controverted facts

No predication or improper predication

Questions of law

119

Fixing Any Errors

Defective definitions and instructions – object

Misstates the law/misleads the jury

Inclusion of instruction

No pleadings

Immaterial, unnecessary or superfluous charges–

object

120

Fixing Any Errors

Appellate Review

Standard of review – abuse of discretion

Trial court’s requirements

Test for abuse of discretion

Test for reversal

Reversal: remand or rendition

FINAL ARGUMENT

121

122

Final Argument

1. Right to open and close governed by T.R.C.P. 266,

269.

1) Right belongs to the party who has the burden of

proof on the whole case.

2) Ordinarily the right resides with the plaintiff.

2. Time allocation.

1) Discretionary with court.

2) Unequal allocation is not in and of itself error.

123

Final Argument (con't)

3. Motion to fully open.

1) Burden to fully open on the whole case is

preserved by filing a motion to fully open.

2) If motion to fully open is filed closing argument is

limited to rebuttal only to reply arguments.

Documents

THE TRIAL OF A FAMILY LAW JURY CASE - c.ymcdn.comc.ymcdn.com/.../The_Trial_of_a_Family_Law_Ca.pdf · 1 THE TRIAL OF A FAMILY LAW JURY CASE JOHN F. NICHOLS, SR. PATRICK W. UPTON 713-816-5090