OUTLINE PROFILE:

Author:  	Original author unknown
Updated for fall 1996 by Bryan Gantt <bgantt@mail.utexas.edu>
School:	University of Texas
Course:	Texas Civil Procedure, Trial & Appeal
Year:		Fall 1996
Professor:	Ratliff
Book:		Texas Trial & Appeal, 2d Ed, Ratliff
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Texas Civil Procedure
Fall 1996, Ratliff
Bryan Gantt
I.	Standards of Appellate Review
A.	Introduction
1.	Texas jurisprudence incorporates the idea that the litigant is entitled to a fair trial but not necessarily a perfect one.  
2.	HARMLESS ERROR RULE:  Unless the mistake was calculated to cause and probably did cause an improper judgment (unless it changed the outcome of the case, the error will be said to be harmless and there will be no reversal. 
a)	 Exception:  When the complaint is that the fact-finder has ignored the persuasive evidence or acted on insufficient evidence.  Here it is agreed that there is harm and the judgment will be reversed.

In order to find out if the error is likely to change the outcome the court must compare the trial court result with a hypothetical trial and see if the result would be different.
3.	Before an appellete ct. will reverse a trial courts actions it will want to see
a)	that counsel clearly pointed out what the court was doing wrong (or about to do wrong
b)	that counsel gave the grounds for the complaint -the rule or precept being violated
c)	that counsel told the court how to avoid or correct the error
d)	that the ct. clearly rejected the protest(overruled the objection)
e)	All of the above steps must be in the record.
B.	Preserving Error- TRAP Rule 52(a)
TRAP 52(a): To preserve error, a party must:
1.	present to the trial court a timely request, objection or motion
2.	state the specific grounds for the ruling desired (if not apparent from the context)
3.	get a ruling(or object to trial judge’s refusal to rule)
a)	Emerson v. Tunnel: Issue:  Whether a motion for judgment on the verdict preserves error when the ct renders judgment for the movant, but for less than the verdict.
(1)	Tunnel does not object to the trial court’s adverse ruling, but that did not matter b/c the judge ignored the motion for the judgment (enough to preserve the error)
(2)	Ways which will make the appeal automatic and easy: (though not necessary)
(a)	hold a hearing for motion on the judgment 
(b)	after the entry of judgment, object to the judgment(note it in the record)
(c)	motion to judge to reconsider
Notes (Book)
b)	Trial Amendment- to preserve error(show surprise):
(1)	-object
(2)	-show prejudice
(3)	-be overruled AND
(4)	-must also move for a continuance
c)	Surprise Witness(one not revealed in answers to the interrogatories)
		you are not required to either show prejudice or move for a continuance
C.	Harm  TRAP Rule 81 (b)(1) (CA) and 184 (b)(1)
Traditional burden of harm:(no presumption)=“reasonably calculated to cause and probably did cause the rendition of an improper judgment”
1.	No presumed harm-(i.e., where every error would be presumed harmful unless the  could show that there was no harm)
a)	When the nature of the error prevents a showing of harm:
(1)	Texas has a notion of “presumed prejudice” only if there would be no way to prove the harm(materially unfair trial) Such a denial of substantial rights w/o way to show harm on the record)
b)	“Materially unfair trial” concept has been largely confined to the trial courts misallocation of peremptory challenges (strikes) among the litigants

2.	Gee v Liberty Mutual- Did the trial cts. actions to allow the testimony of an undisclosed witness into evidence w/o a showing of good cause constitute reversible error as expressed in TRP 81(b)? No.  Allowing an unnamed witness to testify was a clear abuse of discretion, BUT harmless error b/c it was cumulative testimony(- the witness only reiterated what had already been heard before)
a)	-a  does not like this rule  i.e. exclusion of a Dr. ( who might be more believable than another witness b/c mom has already testified that could be harmful.
b)	Example of ct finding an abuse of discretion w/out including harm in the def’n-some cases may find an abuse of discretion and then look for harm.
3.	TRCP 166b(6) - must supplement responses
4.	TRCP 215(5)- can’t present evidence from undisclosed fact/expert witness if failed duty to supplement unless the trial ct. finds good cause to admit exists. BOP of establishing good cause is on party offering evidence and good cause must be shown in the record.
a)	Harmless error v. reversible error
b)	Error of law v abuse of discretion
(1)	Matter of Law- there is only one correct answer
(2)	Abuse of discretion- many correct answers( the more complex the factors relevant to a decision, the more the “surrounding facts and circumstances” must be taken into account & the more likely it is that the decision will be left to the trial court’s discretion)
(3)	Error of law= Harm=> Reversal

That “error was in some way “outcome determinative” is included in both the error of law and abuse of discretion questions.

5.	 When the Trial Court’s Action Prevents a showing of Harm Rule 81(b)(b) TRAP
6.	State v Biggers- Error found where the trial ct. refuses to allow a Bil of Exceptions=reversal.
a)	Example of presumed prejudice
b)	See Rule 81(b)- the trial ct’s action prevented me from making proper presentation of the evidence to the app. court.
c)	This is a case where harmful error is presumed b/c the judge didn’t let you use 81(b)
d)	Trial tip: make it absolutely clear that you attempted to make the Bill of Exceptions to the judge and he wouldn’t let you.  If you don’t do this, reviewing ct. will not know if the error is harmful and the court will decide harmless error instead.
7.	 Hogan v. Credit Motors- ruling of the ct., had the incidental effect of depriving counsel of the oppurtunity to preserve error (by way of making a bill of exception)
a)	trial judge prevented the making of a BofE by quashing the witnesses subpoenas
(1)	Issue: how to make a Bof E when the ct. quashed the subpoenas that would have brought your witnesses to the courthouse?
(a)	Held: Harmful Error.  Appellant was prevented from making a BofE b/c witnesses weren’t at the courthouse b/c judge quashed the subpoenas.  Therefore, presumed prejudice/harm.
(2)	General Rule:if you forget to makeBofE when the judge prevents you putting on evidence, then you can’t appeal - appeal is allowed w/out the BofE only if judge prevented you from making BofE.
b)	Intentional interference v. Oversight- It is uncommon for the ct. to refuse a party’s attempt to make a B of E, more frequently it is the situation (shown in Hogan) where a ruling of the court has the incidental effect of depriving the council of the oppurtunity of preserving error.  the mistake commonly made by trial counsel is to forget to make his bill after having deferred doing so until a recess or the end of the day-though many judges will remind counsel of this postponed task, they have no obligation to do so, & it is perhaps asking too much to expect that they will prompt the making of of the record, the sole purpose of which is to reverse their ruling on appeal.

D.	Abuse of Discretion Cases:
1.	Downer v. Aquamarine- Abuse of Discretion Standard Definition: “Acted on without any reference to any guiding rules or principles”
a)	Cts have left out “arbitrary and unreasonable” language
b)	Cts are still looking at arbitrary/unreasonable but using only the first half of the definition(Logic Trouble)***

2.	Alvarado v. Farah Mft. Co.- Admission of surprise witness testimony was testimony was reversible error
a)	Majority treats the issue as one involving the admision of evidence and thus a question of law.
b)	Dissent treats the issue as a question involving the invocation discovery sanctions and thus a question of abuse of discretion.

3.	Landon v. Budinger, Inc.- abuse of discretion standard.
a)	no real way to formulate the standard.(Landon lists several catch phrases which have been used)
b)	 : all we can really say is that there is more than one answer (some ange of solutions available to the court.)
c)	If an error is not harmful it is not an abuse of discretion.

4.	Rough guidelines have emerged from the cases:

(1)	One situation justifying apellate review is the imposition of a severe penalty on one party for some oversight when a more forgiving approach would promote a just resolution and would occasion little inconveniance to the other side. EX: refusal of a trial amendment to verify pleadings OR refusing to allow  to reopen to cure gaps in the proof which would not hinder/delay trial.
5.	Home Owners v. Scheppler- Appellate Ct. grappling with how wide to make discretion.  Issue in this case: Rule 13 determination/ violations- it should be fairly broad b/c so many surrounding circumstances have to be taken into account (wide band).

6.	Walker v. Packard- (Mandamus proceeding)
a)	in a mandamus proceeding - appellate ct. must look for “no adequate remedy at law” otherwise no mandamus because an adequate remedy at law means that hte harm is curable(on later appeal)
b)	Error of law-appeal after judgment-no abuse of discretion std.(no deference to trial judge- if error of law and no harm, then reverse)
c)	Mandamus-abuse of discretion standard
(1)	must be clear of error of law (judge outside the realm of possibilities)
(2)	must cause harm
(3)	must be no other adequate remedy of law

Summary: a trial ct clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.  With respect to the resolution of factual issues or matters committed to the trial cts. discretion, for exaple, the reviewing ct may not substitute its judgment for that of the trial ct.  The realtor must establish that the trial court could reasonably have reached only one decision unless it is shown to be arbitrary and unreasonable.  On the other hand, the review of a trial court’s determination of the legal principles controlling its ruling is much less deferential.  A trial court has no “discretion” in determining what the law is or aplllying the law to the facts.  Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ.
E.	Evidentiary Support of Fact-Findings: The Zones
1.	Zone 1- there is no evidence supporting a fact isssue, therefore the proponent (party w/BOP) is NOT entitled to have it taken to the jury.  Such a finding will be set aside on appeal, the C/A will render judgmetn in favor of the opponent.  Terminology: “No evidence”  Referring to a legal sufficiency pt of error.  When the record contains absolutely no evidence on the fact issue, or when the trial or the appellate ct. determines the only supporting evidence should not have been admitted, the case clearly will falls into Zone 1.

a)	 Scintilla: when the evidence is so weak as to so no more than create a mere surmise or suspicion of the fact’s existence.  The “scintilla rule” applies only to cases in which the proponent attempts to establish a critical fact through an inference from the other proof and the reviewing ct. finds the inference unreasonable.  When the evidence gives rise to oppposing inferences, each of which is equally reasonable, neither  inference may be reasonably drawn from the jury, and the evidence fails to qualify as “some evidence” to support either finding.  In addition, an opponent can’t establish a critical fact by “piling inference upon inference.”(that the vital fact may not reasonable be inferred from the meager facts proved in the particuliar case”) 
 
b)	The scintilla rule more often applies outside these special situations and disqualifies evidence that is simply so weak that it does not give rise to the level of “some” (Zone 2) evidence. 
(1)	Test:  To conclude that proof on a given issue falls into Zone 1, the ct. must be persuaded that reasonable minds could not differ on the matter.  the trial ct should apply this test in considering a motion for directed verdict, and objection to the charge on the “no evidence” grounds, and the motion for JNOV.  An appellet court applies the same test in determining whether the trial court erred on taking the matter away from the jury or refusing to do so.

c)	“No duty” cases:  What if the facts do not constitute a cause of action? Zone 1 also embraces this type of case, called a “no duty” case(Boyles v. Kerr)  No duty cases are a subset of no evidence cases.  Evidence in these cases can go from Zone 5 to Zone 1 or vice versa, by a S.Ct subsequent ruling.  The ct makes a legal determination about the substantive elements of a specific cause of action.

d)	Appropriate Remedies:  in the trial ct.: JNOV TRCP 301: indicates that the court may render a JNOV when the verdict has no support in the evidence.
(1)	-When the trial ct. has erroneously rendered a judgment based on jury findings that are contrary to Zones 1,5 evidence tha appellate ct. and render a judgment that is in harmony with the evidence.  The qiestion is taken from the jury and decided as a maater of law.
(2)	-  When the trial court has rendered JNOV erroneously diregarding a jury finding b/c the ct believes that the evidence falls into zone 1 or 5 the appellate ct will usually reverse and render judgment on the verdict, unless the appellee has preserved by cross-pt. its conditional prayer for a new trial.
(3)	-  Sometimes the appelate ct will order a new trial even when the jury has made findings that are set aside b/c the evidence falls into zone 1 or 5.  For example, if the ct. changes the substantive law or holds that some of the proponent’s evidence should not be admitted, the proper remedymay be a new trial that gives the proponent a chance to introduce or fully develop evidence compatible with the new standard.
(4)	-  When the jury verdict is shown to be incorrect the usual remedy is rendition  of judgment for the proponent if the supporting evidence is found to be zone 5, or for the opponent if the evidence is in zone 1.

2.	Zone 2- some evidence on the issue, and consequently, it must go to the jury, but  there is not enough to support a jury finding in the proponent’s favor.C/A will set aside such a finding and order a new trial.  Terminology:  There is “insufficient evidence” or “factually insufficient evidence” to support an affirmative finding.  Ct looks at all the evidence on both sides, then makes a predominately intuitive judgment :Is the evidence already identified as “some evidence”(Zones2,3,4)- in satisfactory harmony with the factfinding that it supports? Reviewing ct. can’t substitute it’s judgment for the jury’s merely b/c it would have found from the facts differently but must review the entire record to determine whter the evidence was so one-sided that the verdict  will not stand.(Weigh all the evidence, but do not re-weigh the evidence)  The jury’s findings should not be disturbed unless the verdict is manifestly unjust or clealy demonstrates bias.”
a)	Appropriate Remedies:Issue must go before the jury when it falls into zone 2 or 4 therefore a MDV or a MJNOV is improper.  If the jury has not made the “correct” finding on the issue, the trial court will grant a new trial , b/c the evidence in favor of the opponent is “factually insufficient” to support a verdict for the proponent.  The trial ct. and the C/A’s can order a new trial based solely on the factual sufficiency points only twice(Rule 36).  A 3d verdict must be permitted to stand, even if the cts finds that hte evidence still falss into zones 2 or 4.
(1)	-  When the appellate ct. finds that the trial ct. has improperly denied a motion for new trial- that is when the verdict was not supported by factually sufficeint evidenceor was against the great weight and proponderance of the evidence - the apppelate ct should revers the trial courts’ judgment and remand for a new trial.
3.	Zone 3 -There is enough evidence to support a jury verdict, but not so much that a ct. would be justified in interfering with a contrary finding.  The vast majority of cases fall into this zone, where the issue is left entirely to the finder of fact.
4.	Zone 4- the evidence favoring the proponent is even stronger, so although the issue must go before the jury, a reviewing ct will set aside a jury finding against the proponent and order a new trial.Terminolgy: a finding contrary to the evidence is so against the “great weight and preponderance of the evidence” (referring to a factual sufficiency point) Proponent- an unfavorable (neg) finding should  be set aside b/c it is “contrary to the great weight and preponderance of the evidence.”  Opponent and unfavorable (affirmative) finding was based on “insufficeint evidence”
		
a)	Ct. looks at all the evidenc eon both sides and then makes a predominately intuitive  judgment : Is the evidence(already labelled as Zone 2,3,4 evidence) in satisfactory harmony with the fact-finding that it supports? 
b)	 the reviewing ct cannot substitute its judgment for the jury’s merely because it would have found the facts differently, but must review the entire record to determine whether the evidence was so one-sided that the verdict will not stand.  
c)	The jury’s findings should not be disturbed unless the verdict is “manifestly unjust” or such as to “shock the conscious” or “clearly demonstrate bias.”
d)	Appropriate remedies: Issue must go before the jury when it falls into zone 2 or 4 therefore a MDV or a MJNOV is improper.  
(1)	If the jury has not made the “correct” finding on the issue, the trial court will grant a new trial , b/c the against the proponent is “against the great weight and proponderance of the evidence.” 
(2)	The trial ct. and the C/A’s can order a new trial based solely on the factual sufficiency points only twice(Rule 36).  A 3d verdict must be permitted to stand, even if the cts finds that hte evidence still falss into zones 2 or 4.
(3)	 When the appelllate ct. finds that the trial ct. has improperly denied a motion for new trial (great weight and proponderance)  the appellate ct. should reverse the trial ct’s judgment and remand the case for new trial.

5.	Zone 5- the proponent has introduced evidence strong enough to prove a fact conclusively( as a matter of law)There is no issue of fact for the jury to decide.  A reviewing court will set aside a contrary judgment for the proponent. Terminology: “Conclusive evidence”  Referring to a legal sufficiecy point of error.Test:  Can reasonable minds differ about the fact determination to be made by the jury?  Whatever the proponent’s evidence, it cannot be conclusive if opposing evidence is in the record.  But if the ct finds no opposing evidence , it then goes even firther and looks at the record to see whether the evidenxe supporting the propornent’s recoed to see wherher the enedence supporting the proponenr’s issue is enough to make it conclusive.

6.	-The unopposed testimony of an interested witness is considered conclusive if it meets a 5-part test:
a)	(1) it pertains to matters reasonably capable of exact statement
b)	(2) it is clear, direct and positive
c)	(3)it is internally devoid of inconsistencies
d)	(4)it is uncontradicted either by the testimony of other witnesses or by the circumstances
e)	(4) it is kind of a kind that could be readily controverted if untrue
7.	In short, if there is nothing to cast suspicion on the testimony-that is if reasonable minds could not differ- than the jury must accept it.  But, if the testimony is impeached, inconsistent or otherwise suspect (even though not directly uncontroverte )- that is, if reasonable minds might or might not accept it- then the jury may reject it.

8.	Appropriate remedies:  in the trial ct:JNOV TRCP 301 : indicates that the court may render a JNOV when the verdict has no support in the evidence.
a)	-When the trial court has errouneously rendered a judgment based on the jury findings that are contrary to Zones 1,5 evidence the appelate cy will usually reverse the trial ct. will usually reverse the trial ct and render a judgmetn that is in harmony with the evidence.  the question is taken from the jury and decided as a matter of law.
b)	-When the trial ct. has rendered JNOV erroneously disregarding a jury finding b/c the ct believes that the evidence falls into zone 1 or 5 the appelate court will usually (@#$ reverse and render@#$) unless the appellee has preserved the cross pt its conditional prayer for a new trial.
c)	-Sometimes the appellate ct. will order a new trial even when the jury has made findings that are set aside b/c the evidence falls into zone 1 or 5.  For example, if the ct. changes the substantive law or holds that some of the proponent’s evidence should not be admitted, the proper remdy may be a new trial that gives the proponent a chance to introduce or fully develop evidence compatible with the new standard.
d)	- When the jury verdict is shown to be incorrect the usual remedy is rendition of judgment for the proponent if the supporting evidence is to be found to be zone 5 or for the opponent if the evidence is in zone 1.

9.	Garza v. Alviar- a statement from the C/A that the evidence is “insufficient” to support a finding by the trier of fact is often troublesome b/c of its ambiguity.  this present a question of law w/ in the S.Ct  and C/A jurisdiction.  In deciding this question, the appellate ct must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary.

10.	Chrysler Corp. v. Blackmon- Death penalty discovery sanctions that terminates the presentation of the merits of a party’s claims.  Should we require written findings of the trial judge with respect to sanctions? No They would be helpful, but failure to have them would not neccesarily result in a reversal.

11.	Legal and factual sufficiency std of review applicable to appeals of nonjury trials.

a)	Boyles v Kerr- reprehensible conduct of the worse sort.  Test case brought under neg. infliction of emotional distress instead of intentional infliction (b/c insurance policy did not cover intetional torts) SCT backe away from this and said that they did not acknowledge this cause.
(1)	In the legal point about duty, the evidence was converted form conclusive evidence (zone 5) to no evidence (zone 1)!

12.	Powers and Ratliff:
a)	-- Preserving legal sufficiency poits of error: The denial of a motion for Sj does not ordinarily preserve the legal sufficiency points for appeal.
b)	--  ‘s BOP for fraud and malice leading to punitive damages: Clear and convincing evidence (“the measure or dgree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established)
II.	SUMMARY JUDGMENT
Allows a judge to “short circuit” the process if 1 party is unable to create a fact issue at trial
A.	Rule 166aTRCP: What is SJ proof?
1.	Same kind of proof from regular trial except
a)	no live witness testimony
b)	affadavits are allowed

NOTE:  Pleadings and Motions are not SJ evidence (but they do define the controversy)
B.	In reviewing a SJ:
1.	the appellate ct takes as true all evidence favorable too the nonmovant(and ignores all controversy evidence) --indulges every reasonable inference in the favor of the nonmovant 
2.	court looks only for evidence that would create such evidence??
3.	inferences that equally support opposing views are no evidence
4.	can’t stack inferences
5.	direct testimony is always “some” evidence
6.	One witness can create a fact question (contradictory affaddavits and depos)
a)	Randalls Food Markets v. Johnson - To prevail on a motion for SJ a movant must establish that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law.  A  who conclusively negates at least one of the essential elements of a cause of action is entitled to SJ as to that cause of action.  A  who conclusively establishes each element of an affirmative action defense is entitled to SJ.  In  reviewing a SJ the court accepts as true evidence in favor of the non-movant, indulging every reasonable inference and resolving all doubts in his or her favor.
(1)	Two ways to attck the failure to state a claim:
(a)	specially except to the pleadings (has effect of a motion to dismiss).  Clearly entitles the pleader to cure.
(b)	File a motion for SJ based on the pleadings (other party is still entitled to oppurtunity to cure.)

(2)	But NOTE: oppurtunity to cure is denied where the pleader affirmatively pleads himself out of court.
(3)	Matter of law is sometimes described in the cases as “no evidence”

b)	Houston v. Clear Creek Basin Authority p. 47- This case is included as a history of summary judgment and the changes made to the rule.  The rule was put to increase the judicial efficiency.  The high hopes did not materialize.  The rule is fraught with understanding.  A survey concluded that fewer 2% of the civil cases disposed of in texas in the six preceding years were decided by summary judgment.  Another survey of the cases when summary judgment was granted in the trial court 70% of those cases were reversed and remanded for trial.  Sp now both the reasons for the summary judgment and the objections to it must be in writing and before the trial judge at the hearing.  To permit issues to be presented orally would encourage parties to request that a court reporter record summary judgment hearings, a practice that neither necessary nor appropriate to the purpose of such a hearing.  Pleadings do not constitute summary judgment proof.  The written answer or response to the motion must fairly apprise the movant and the court of the issues the nonmovant contends should defeat the motion.  The BOP in the proceedings however does not switch in the proceedings.  the movant still mist establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively provign all essential element sof his cause of action or defense as a MOL.  The non-movant needs no answer or respnse to the motion to contend on appeal that the grounds expressively presented to the trial court by the movant’s motion are insufficint as a MOL to support the summary judgment.  The non-movant, however, must ot raise any other issues as grounds for revrsal.  W/ the exception of an attack on the legal sufficiency of of the grounds express;y raised by the movant in his motion for summary judgment the non-movant must expressly present to the trial court any reasons seeking to avoid movant’s entitlement- and he must present summary judgment proof when necessary to establish a fact issue.
 
c)	McConnell v. Southside ISD & Houston v. Clear Creek Basin Authority- 
(1)	Issue:  Whether the grounds for summary judgment must be expressly presented in the motion for summary judgment itself or whether the grounds may be presented in a brief filed contemperaneously with the motion or the summary judgment evidence.
(2)	 Held:  The grounds for summary judgment must be expressly presented in the summary judgment motion itself.  The reasons for SJ and objections to it must be in writing and before the trial judge at the hearing.  The appellate ct must later decide whether the issue was actually presented to and considered by the trial judge will then be able to examine the transcript and make its determination. To permit  “issues” to be presented orally would encourage parties to request that a ct reporter record a summary judgment hearings, a practice neither necessary nor appropriate to the purposes of the hearing.
(3)	Pleadings don’t constitute SJ proof
(4)	the non-movant needs NO ANSWER or RESPONSE to the SJ motion to contend on appeal that the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law.
(5)	HOWEVER:  the non-movant must in a written response to the motion, expressly present to the trial ct. those issues that would defeat the movan’s right to a SJ and failing to do so, may not later assign them as error on appeal.
(a)	Ex: If the trial ct. grant’s ‘s  MSJ based on  affadavits and on appeal,  finds ‘s answers to interrogatories which contradict ‘s affadavits (raising a fact question) then too bad! You cannot resurrect grounds that were abondoned in the motion.
(i)	 NOTE: A brief accompanying a MSJ can’t supply the grounds which must be in the motion itself. 
(ii)	EXCEPTION: insufficient as a matter of law question(see pt above)
(6)	Legal grounds- MSJ’s may assert that the law doesn;t recognize the claim that  is advancing.  This attack is like a 12(b)(6) motion to dismiss for failure to state a cliam.  It requires no affadavits or SJ evidence.
(a)	NOTE: this could also be raised by a special exception to the pleadings and not, ordinarily, on the existence of evidence which will support the ‘s claims.
(7)	A motion SJ on the  right to recover, which takes the pleadings to be true, will not be granted until the  has had the oppurtunity to amend and cure the pleading defect (the same istrue foe a  who has pled an aff. defense)
d)	Factual Grounds- MSJ frequently assert that critical jury questions are governed by evidence on which fact questions can be determined as  a matter of law.( That is, no fact issue need to be decided by the jury b/c critical fact questions are governed by the no evidence or conclusive evidence determination.  These are “legal sufficeincy points of error”.  If  is the plantiff- movant w/ the BOP  must show that evidence on each element of the claim is uncontroverted in order to obtain a SJ.  Therefore a  need only show that there is some evidence favoring  on one critical elemetn of  proof to defeat SJ by showing that he can introduce some evidence on each elemetn of the affirmative defense.
7.	Affadavits-  Rules governing motion for SJ:
a)	Affiant must have first hand knowledge.  An oath by an affiant “ to the best of his knowledge is no good.
b)	Must show on its face the competence of the affiant to testify.
c)	Must state facts, not conclusions.  Affadavit can allow expert to testify to conclusions within their competence.
d)	Document must be authenticated as a true copy.
e)	Parties are entitled to reasonable discovery before the court grants a SJ based on no evidence.

8.	Burdens on motion for SJ:
a)	 
(1)	To win MSJ- conclusively prove enough to entitle you to judgment at the end of the trial (remember that ‘s burden is different than )-BOP: conclusively establish every element of the Cause of Action on damages- burden is established by evidence that some damages were suffered- and conclusively disprove at least one of the elements of ‘s affirmative defense.
(2)	To defeat ‘s motion for SJ - establish that a fact ? exists in each element of his C/A AND that a fact question exists on at least one element of his affirmative defense.

b)	 
(1)	To defeat  MSJ- show a fact ? as to one element of the  C/A OR introduce some evidence as to each element of an affirmative defense.
(2)	- To win  MSJ- show that there is no fact issue as to one element of ‘s C/A OR conclusively establish every element of affirmative defense.

c)	Remember- a party might conclusively establish one or more elements of it’s case, entitling it to a partial SJ, 
(1)	BUT the issues remaining would have to be tried.  Also, a party who fails to obtain SJ does not lose the case.  It simply loses the chance to end the litigation on its motion and must try the case on its merits,(unless the party opponent wins its MSJ)

9.	Casso v. Brand- SJ’s in federal cts are based on different assumptions, with different purposes, than SJ’s in TX. Tx uses SJ’s to eleminate patently unmeritorious claims and untenable defenses, and we never shift the BOP to the non-movant unless and until the movant has established his entitlement to a Sj on the issues expressly presented to the trial ct. by conclusively proving all essential elements of his C/A or defense as a matter of law.  The ct. concludes that Casso’s uncontradicted statement ( that he believed the allegations were true) can serve to support his SJ b/c the opponent could have “effectively countered by opposing evidence.”
a)	Our SJ rule permits the granting of an SJ on the basis of uncontroverted testimonial evidence of an interested witness if the evidence is 
(1)	clear positive and direct, otherwise credible and free from contradictions and inconsistencies, and
(2)	 (2)could have been readily controverted (meaning that the testimony at issue is of a nature which can be effectively countered by opposing evidence).
10.	Claims not specificallly pled- D need to produce summary judgment evidence only as to claims specifically pled by .  
11.	Problem- To raise the idea that the federal court places the burden on the  (exception Smith v Kline) 
12.	Effect of uncontroverted interested testimony:
a)	can do no more than create a fact question unless it is enhanced by passing a credibility test (R 166A(c)- Then can be conclusive.
13.	Credibility Test
a)	applies whenever uncontroverted, interested testimony is evaluated whether in connection with an MSJ, MDV, or Motion JNOV(BUT, controvertibility element has not always been required in connection with MDV or MJNOV)
(1)	it pertains to matter reasonably capable of exact statement 
(2)	it is clear, positive and direct
(3)	it is internally devoid of inconsistencies
(4)	it is uncontradicted-either by the testimony of other witnesses or by the circomstances
(5)	it is of the kind that could be readily controverted if untrue
(6)	“capable of being readily controverted”
14.	If the testimony does not pass the credibility test it can do no more than raise a fact issue, even though it is uncontroverted.
15.	Expert testimony
a)	Anderson v. Snider- tells us that expert testimony IS eligible for the same credibility enhancement as any other interested witness( that can go into zone 5)
(1)	BUT for expert testimony to support the SJ it must be the kind of fact where trier can’t make determination w/o expert help- R166(a)(c).  Conclusory statements made by an expert aren’t enoough- must provide specific support for these conclusions.
16.	Medical malpractice statute- makes a medical expert competent to testify regarding the existence of malpractice only if he or she is shown to have been in practice at the time of testimony ot at the time the claim arose, and to have had knowledge of the accepted standard of care.
a)	Answers to Note 4 Problem on p64-65:  
(1)	It would not be more effective to have your client testify live at the SJ hearing
(2)	Oppurtunity to replead in the face of this attack?- Yes- Adequacy of the hearing special exceptions
(3)	Reff’s affadavit- T cannot win because pleading is not summary judgment proof. Reff is an interested party- he must pass the credibility test- probably flunks at the non-refuteable requirement.
(4)	SJ for Reff-Still no proof legal Admit facts favor  to check legal duty.(This is what I have in my notes I’am not sure exactly how it comes into play-  Everybody check their notes and let me know if you have something different for this question.
(5)	Fact question on damages-Yes 
III.	RES JUDICATA AND COLLATERAL ESTOPPEL
A.	Basics
1.	Res Judicata(claim preclusion)
a)	involves the same parties (or privies)- mutuality
b)	disposes of  the whole case
c)	disposes of claims that could have been made
d)	bars an entire cause of action or defense
2.	Collateral Estoppel(issue preclusion)
a)	can be different parties
b)	Bonniwell v. Beech Aircraft  (Note 6, p.75)
c)	prerquisites determination of identical fact question that was decided and was actually litigated(fully and fairly)
d)	essential to the judgment
e)	parties were cast as adversaries in the first action this requirement does not apply to no-mutual collateral estoppel(b/c it is incompatible)
f)	the party or privy against whom the that fact is asserted was present in the earlier case (had his day in ct.)
g)	forecloses specific issues
h)	NOTE: one of the ct. of appeals holds that the party asserting CE must introduce into evidence the judgment and pleadings from prior suit (or else CE won’t apply)

i)	Getty Oil v. INA- Texas follows the “transactional” approach to res judicata= A judgment in an earlier suit “precludes a second action by the partied and their provies not only on matters litigated, but also on causes of action or defenses which arise out of the same subject matter and which could have been litigates in the first suit.  The factors to consider in determining whether the facts constitute a single “transaction” are :
(a)	their relatedness in time
(b)	space
(c)	origin
(d)	or motivation
(e)	whether, taken together, they form a convenient unit for trial purposes
3.	Black letter RJ law
a)	“same transaction” test (same test for compulsory counterclaim) if claim in case 2 arose out of the same transaction as the claim in case 1, then the case is barred.
4.	Cross-claims
a)	no obligation of non-antagonistic co-‘s to bring claims against each other.
b)	BUT once cross claim is made then all claims among co-;s must be made (A v B, C- B sues C)
5.	Compulsory Counterclaim Rule(among co ‘s now the co must bring all his claims also(C sues B).
6.	Privity- (applies to both RJ and CE)
a)	when a non-party is related to a party in a way that binds the non party to the case outcome (shadow parties)  Those in privity with a party may include persons who exert control over the action, persons whose interest are represented by the party, or successors in interest to the party.
b)	Ct in Getty ducks the question of privity- says that there is a different rule for insurance comp.
(1)	Rule 38(c)- you cannot join the insurance carrier in the primary action.
(2)	“No action” clause- std contract clause saying that no one can sue us until there is judgment against our insured.
(3)	Therefore the court HELD- Getty is barred from bringing their claims against NL but not INA and Youelle(the insurers)
7.	Fact v Legal issues
a)	At one time it was said that CE applied only to foreclose fact questions, but Getty adopts the RSTMT position declaring it potentiallly applicabe to both factual and legal determinations: “ CE also precludes the relitigation of essential issues of law that were litigated and determined in a prior action.”
b)	Collateral Estoppel v Collateral attack: CE refers to issue preclusion b/c it bars relitigation of any ultimate issue of fact actually litigated and essential to the judgmet in the prior suit.  Collateral Attack is an attempt to aviod action  a judgment in a proceeding brought for some other purpose.
c)	Bonniwell prerequisites: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) Those facts were essential to the judgment in the 1st action and (3) the parties were cast as adversaries in the 1st action.
d)	Benson v. Wanda Petroleum-
e)	Issue: Does a joint venture betweeen the parties create privity?
8.	Creating privity(hard to predict)  The following may point to privity but are not conclusive:
a)	Privity definition:- “The statement that a person is bound by .. a judgment as a privy is a short method of saying that under the circumstances and for the purpose of the case at hand he is bound by... all or some of the rules of res judicata by way of merger, bar or collateral estoppel.
b)	Virtual representation
(1)	If your interests were clearly protected in the original case then that points toward privity.  Virtual representation usually won’t work for Res Judicata(only CE)
(2)	Adequate identity of interests
(3)	EX- fiduciary representing the interest of the benificiary (or class action representatives and class members)
(4)	BUT- won’t apply when there is a conflict of interest between the trustee and the beneficiary
(5)	Control-if nonparty is in controla if the litigation may require specific factual development in each case, but some cases offer guidance:
(6)	Successors in interest to parties- usually bound by litigation which preceded the conveyance or assignment
9.	Due process requirement for CE
a)	a party can’t be bound unless that party (or a privy) has had a day in court on the question
b)	Collateral Estoppel- In the trial judge’s discretion, the trial ct. can look to things outside the actual questions presented to the jury (evidence/pleadings) in order to determine whether it would be fair to apply CE on the particuliar facts:
(1)	the way the ct asks the fact Q in the charge is not necessarily determinitive
(2)	Issues that sound identical may really be completely different(conversely might ask  jury question two different ways & have identical issues for CE purposes)
(3)	EX: roll bar is “dangerously defective”-collapse is not equal to sharp protrusion”  Even though the jury will be charged with exactly the same question- these are not identical issues
c)	Scurlock Oil v. Smithwick- A judgment is final for the purposes of issue and claim preclusion despite the taking of an appeal unless what is called an appeal actually consists of a trial de novo. A partial SJ that is not final or appealable cannot support a plea of res judicata.
(1)	Holding:  a judgment has finality for RJ and CE when it is final at the TRIAL COURT( even though it may be on appeal)
(2)	EXCEPTION: if appeal will be trial de novo
(3)	Problem: you rely on a case (for CE) that is then overturned, and subsequently all cases that relied on that one will be overturned as well.
d)	Combine this with :
(1)	Judges reluctance to get overturned
(2)	the discretionary nature of the application of CE (he can just choose not to apply it) and the CE is then hard to get w/o final, final judgment.
(3)	It is w/in the trial judge’s discretion to: refuse to set the case for trial pending the outcome of a case that will clarify the law(for stare decisis) OR go forward w/ the case but exercise its discretion so as to deny application of CE.
(4)	NOTE: judgment must be final and appealable at the trial level to be entitled to RJ or CE( so partial SJ won’t support it)
e)	Eagle Properties- Alternative findings cannot be used to support collateral estoppel.  Neither is “essential to the judgment”, either one being adequate to support the judgment. “If a judgment of a ct. of first instance is based on the determination of two issues, either of which standing alone would be sufficient to support the result, the judgment is not conclusive with respect to the issue standing alone.  A determination in the alternative may not have been as rigourously considered as it would have been had it if necessary to the result, and the losing party may be dissuaded from appealing one determinationb/c of the likelihood that the other be upheld.
(1)	Issue: The essentiallity of the finding of no fraud in case 1
(2)	Facts: Federal court found (1) no fraud and (2) no notice  of fraud(either of these would have been a valid defense to the counterclaim)
(3)	Alternative Findings: if a judgment rests upon alternative findings, neither is “essential to the judgment”
(4)	Rationale:
(a)	Jury might not have given adequate attention to subordinate findings(holding is just a throawy finding -”besides there is no notice”)
(b)	Problem- you can’t get these alternative findings reviewd individually (on appeal) b/c you won.
(c)	Exception: if appellate ct. takes both the alternaitve findings up on appeal and decides them, then they are both valid for purposes of presclusion.
(d)	EX: Jury finds  negligent, but he wins on affirmative defense- he can’t appeal b/c he won, so the sinding of negligence can’t support CE(not essential)
(e)	NOTE: in Eagle Properties, the judge actually only “found” no fraud,then said “if I had to I would find that the FDIC had no notice of fraud”:
(f)	app.ct said that the fraud finding supportes CE because the “no notice:language was not actually an alternative “finding”(it was just set aside by the judge)
10.	Doctrines Akin to RJ:
a)	Stare decisis- adopt legal principles from the other case and apply in this case (follow precedent)
b)	Rule 97 Compulsory Counter-claims.  It operates the same way as Barr rule.
(1)	doesn’t operate until the judgmetn following the trial on the merits (not for settlements)
(2)	always require mutual releases from everybody (or they can turn around and sue on what you just settled)
c)	Law of the Case- rigorous application of stare decisis-legal determination made in the case at bar(made on appeal, then on remand) you can’t attack on next appeal except for “clear error.”  Must be similar facts on appeal.
d)	One Satisfaction Rule-you are not entitled to recover more than once for each individual injury.
(1)	doesn’t operate until there is a judgment by a trial court (settlement alone do not trigger it)NOTE:  can file an inlimited # of lawsuits against an unlimited # of  for the same injury as long as he doesn’t win any. BUT what if the  wins and cannot recover the entire award?(  is judgment proof)
(2)	$#@Undecided issue in Texas. It seems like  should be able to sue other ‘s.  (But how do you prove that  is judgment proof  & what do you do with the earlier judgment once the  recovers the full amount?)
(3)	NOTE:  can, in theory, sue one  for back injury then sue another  for arm injury, BUT in practice you will have a tough time trying to separate pain and suffering (b/t back injury and arm injury are so intermingled)
B.	Non Mutuality 
1.	Hardy v. Fleming (Defensive non-mutual Collateral Estoppel)
a)	Facts: Insured sue insurer (workers comp) for his heart attack.  Jury fins no heart attack at all; party then sues DR. for failure to diagnose heart condition.
b)	Holding: The Q has been fully litigated- Dr can use it even though he wasn’t a party to case 1.
c)	Defensive CE- a nonparty to case 1 may benefit from CE, but only a party or privy in case 1 can suffer from it.
d)	Hypo: (ex of Offensive CE)-Dr. sue insured above for libel (b/c Hardy is telling everyone that he had a heart attack and the Dr. is a “quack” b/c he failed to diagnose heart condition) Dr. moves for partial SJ on the issue of the heart attck (or not)
(a)	Option effect- Dr. can wait on the sideline and take a favorable judgment/ finding in case 1 to adopt in this case, but not favorable, he can ignore it and proceed as if case 1 never happened.
(b)	Classic example:(train wreck) Cases 1-49 won by  (no negligence) Case 50- a  finally wins (negligence) Cases 51-100 ‘s can adopt case 50 as binding that engineer was negligent!
(i)	That this is both unfair and inefficient (greatest inhibition to the effectiveness of class actions- maybe these people would have joined if there was no option effect)
(ii)	Other problem:  D may be faced with puny claim in Case 50 and not pay much attention, but then get hit with a huge claim adopting finding from case 51.
(iii)	CPRC 31.004&5 offers a partial solution -- CE will not be granted to judgments of lower courts (JP, county cts. at law, etc.).
(iv)	Boniwell’s 3rd requirement does not and cannot apply to non-mutual estoppel.
e)	Vacatur-
(1)	suppose  defeats , and after an unsuccessful appeal, the  d offers  a settlement far in excess of the judgment with the proviso that z will join in seeking an agreed order from the appellate court vacating the appellate and trial court judgments, so as to avoid CE effect against future ‘s.  Should this be allowed?
(a)	Arguments for it:
(i)	promotes settlements
(b)	Arguments against it:
(i)	seems to trifle with the system--manipulating the courts to their gain.   is selling rights that are vested in parties not present at judgment, i.e., people who would have benefited from CE.
This is still a hotly contested issue in Texas, but in a situation like this, one 5th Circuit case gave CE effect anyway.

2.	Parklane Hosiery -- Offensive CE -- This was a federal procedural decision, but it was so well reasoned and persuasive that it is cited and followed by all 50 states.
a)	Rule:  offensive CE is withing the broad discretion of the trial court
b)	Issue:  Right to a Jury trial (7th Amendment)
c)	Held - offensive CE does not violate the 7th
d)	Problem:  offensive CE encourages ‘s to sit on the sideline and “wait and see” (heads I win, tails you lose).  Option effect only arises with offensive CE because the  decides who to sue and in what order
(1)	Factors in exercise of trial judge’s discretion:
(a)	was there little incentive for D to defend in case 1 (i.e., nominal damages)?
(b)	Have there been inconsistent prior judgments?
(i)	creates strategic maneuvering for case 1 -- which will be the first case? (i.e., nun is more likely to obtain a favorable verdict than a convicted felon).  Also, ‘s wait on sideline until  loses one.  
Note: courts have been reluctant to identify and penalize “wait and see” plaintiffs.  

(c)	Where 2nd action gives procedural advantages which were not available in the first case.
(i)	Example: case 1 is tried in a forum that applies Res Ipsa and Case 2 is tried in a jurisdiction without such a presumption
3.	Right to jury trial (p. 93)- Trapnell v. Sysco Food Services- the court held taht non-mutual collateral estoppel violates the right to jury trial under the Texas Constitution.  This is a court of appeals decision(Corpus Christie) on a case of first impression

4.	CE and RJ applies as between administrative agencies and their hearings.  Furthermore, two Tx Sup Ct cases seem to assume, without discussion, that an administrative determination will have RJ or CE effect in a subsequent jury trial.
IV.	Settlements
1.	McMillen v. Klingensmith -- overruled unity of release rule:
a)	facts:  settles with 1 (manufacturer) and signs a release.  The  sues 2, and 2 claims that he was released along with 1.
b)	2’s argument:  ‘s release gave a general release (unity of release): release of one = release of all.
c)	Ratliff:  before this case, that was the law.  So, if you wanted to release just one , you needed to make a covenant not to sue.
d)	Held: “we hold that a release of a party or parties named or otherwise specifically identified fully releases only the party so named or identified, but no others.” 
e)	Note:  mutual releases (preventative measure) --without mutual releases, a settling  can turn around and sue the  with whom he settled (what would have been a counter claim).
f)	Duncan v. Cessna -- “We hold that under Texas law, the mere naming of a general class of tort-feasors in a release does not discharge the liability of each member of that class.  A tort-feasor can claim the protection of a release only if the release refers to him by name or with such descriptive particularity that his identity or his connection with the otrious event is not left in doubt.”
(1)	example:  the reference to “all corporations” does not supply the descriptive particularity to specifically identify X corp.
g)	Knutson v. Morton Foods 
(1)	Facts:   sues EE and EE’s employer under respondeat superior, then settles with EE.  Employer argues that the release of EE = release of employer.  
(2)	Held:  vicarious liability is not an exception to McMillen -- the suit against the employer is preserved.
(3)	McMillen is an absolute rule -- release of indemnitee does not release indemnitor - you have to be named explicitly to be released.
h)	Stowers Furniture Co. - Vests a right in the insured to sue his liability insurer for a negligent refusal to settle a claim within the limits of the policy.  Insurer’s obligation to act as an ordinarily prudent business person in business management has been extended to claims investigation, trial defense and settlement negotiations.  
2.	Kennedy v. Hyde -- Role of Rule 11 in settlements:
a)	TRCP 11: no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed, or made in open court and entered of record.
b)	Rule 11 TRUMPS THE LAW OF ORAL CONTRACT.
(1)	Question:  Do settlement agreemnts have to comply with Rule 11 (or can you meet the minimum requirements for an oral K?
(2)	Held:  in order to enforce settlements through entry of a judgment, you must comply with Rule 11:
(3)	in writing; or
(4)	stated in open court and entered into the record
(a)	Houston v. Clear Creek
(i)	court reporter heard it 
(ii)	reduced to order for judgment to be signed by the jduge
(b)	even if there is an agreement or order for complying with Rule 11, the court may not render a judgment unless the parties are in agreement at the time the judgment is rendered (Burnaman) - so, untile the judgment is entered any party can have a change of heart and prevent its entry.
(i)	But if a party backs out after a written agreement per Rule 11 has been made, the you may have a K remedy (have to pursue it in court).
(5)	Exception:  if ther eis no dispute about the oral agreement, then the settlement will be enforced (we will not let an undisputed agreement be backed out of)
(a)	But this kind of agreement has to be made present at the time of entry of judgment (either party can back out before the judge signs the order.
(6)	Complex settlement agreements (precautionary steps to take--don’t want to lose what you’ve done to prepare for trial up to that point because agremenet in principle falls through)
(a)	Ask for recess to implement settlement
(b)	Dictate to court reporter all the details
(c)	Get everyone to agree on record that that is the deal
(7)	Pre-suit exceptions;
(a)	Confessions of judgment made as part of a K or other transaction signed before the suit commences are invalid.  But some oral agreements narrowing the issues or compromising disputed claims made before trial commences may be enforceable.  
3.	Leal -- a party may revoke its consent to a settlement at any time before jdugment is rendered on the agreement:
a)	The judge’s intention to render judgment int eh future cannot be a present rendition of judgment.  The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made.  The opportunities for error and confusion may be minimized if judgments will be rendered only in writing and signed by the trial judge after careful examination.  Oral rendition is proper under the present rules, but orderly administration requires theat form of rendition to be in and by spoken words, not in mere cognition, and to have effect only insofar as those words state the pronouncement to be present rendition of the judgment.
b)	If the judge has rendered judgment, not party can withdraw consent.  IF the judgment was rendered orally, the signing of an order that strictly complies with the agreement is a ministerial act that simply memorializes the settlement agreement and judgment which was dictated into the record.  Judgment has been rendered and the party’s only recourse is to use the appropriate procedures to attack judgment.  
4.	Elabor v. Smith --
a)	Tx S. Ct. announcement on Mary Carter agreements
(1)	Mary Carter Agreemetns are void as against public policy because they encourage perjured/bad testimony.
b)	Prior to this case, Mary Carter agreement existed when a settling  retained a stake in the ‘s recovery (whether he assisted the ‘s case or not).
c)	Current law:  it is not a MC agreement if the  with a stake is no longer party to the litigation.
d)	Def:  “a contract by which one co- secretly agrees with the  that, if such  will proceed to defend himself in court, his own maximum liability will be diminished proportionately by increasing the liability of the other co-‘s.
(1)	this creates a tremendous incentive for the settling  to ensure that the  succeeds in obtaining a sizable recovery.
(2)	motivates the  to assist greatly in the ‘s presentation of the case
(3)	contain a clause requiring the settling  to participate in the trial on ‘s behalf.  
5.	Smithwick guidelines re: MC agreements
a)	are discoverable
b)	should be fully disclosed to the trial court before trial or immediately thereafter
c)	should be considered by the trial court in allowing jury strikes and ruling on witness examination
d)	should be fully disclosed to the jury at the start of the trial
6.	City of Houston v. Sam Wallace --
a)	Facts:   sells out to  (as opposed to  selling out to --no MC by definition)
b)	Held:  court reverses anyway
c)	anytime you engage in fraud, subterfuge that doesn’t present facts the way they are, this is forbidden by fairness/equity, etc.  
d)	Texas adheres to the general rule that infomration about settlement agreements should be excluded from the jury, because the agreement may be taken as an admission of liability.  
e)	Exception:  when a  and one  settle a cause on an agreement that the settling  will receive back % of what the  recovers from the other s.
7.	Chapter 32
a)	only for intentional torts
b)	Each several  was liable for his own percentage
c)	Each joint and several  was liable for everyone’s percentage
d)	but we didn’t deal with percentages -- every  just owed an equal share
e)	Two schemes by which co-0‘s can recover from the others
(1)	Contribution --  sues to recover other ‘s portion of the liability
(2)	Common Law Indemnity
(a)	Vicarious liability cases
(b)	Quasi-vicarious liability cases
8.	Chapter 33
a)	What type of case is this?
b)	Is there J&S liability?
(1)	Definition:
(a)	J&S --  can recover all his damages from a single 
(b)	Several liability -  is only liable for his portion of the damages
(c)	Simple rule--no J&S liability
(2)	Three exceptions:
(a)	Over 20% exception--
(i)	strict liability, breach of warranty, DTPA and mixed cases--a  over 20% liable is J&S liable
(ii)	Negligence cases--
(i)	 is more than 20 responsible
(ii)	 is more responsible than 
(b)	Over 10% exception
(i)	 is over 10% responsible
(ii)	 is zero % responsible
(c)	Hazardous substance exception (toxic, enironmental tort)
9.	Stewart Title Co. v. Sterling -- comparitive fault, Ch. 32 governs: intentional torts
a)	one satisfaction rule--no longer necessary if you are within Ch. 33 (because % recovery)
(1)	Ratliff:  thinks the rule is still needed.
(a)	this rule is still in use for Ch. 32 (sort of a common law formulation of a $ for $ credit)
(2)	If the damages will be trebled (DTPA), the settlement credit applies AFTER the damages are trebled.
(a)	Example:  settlement by 1 for 500,000.  Jury finds damages of $200,000.  2 and 3 still owe 100,000 because the settlemen tcredit comes out after the damages are trebled to 600,000.  
b)	Ch. 33
(1)	Pure Negligence Cases:  it bars ‘s recovery if ‘s share of responsibility if greater than 50%
(2)	SL Products Liability Cases:  it bars ‘s recovery of ‘s share of responsibility is equal to or greater than 60%.  Othewise, the general scheme is one of comparative negligence.
(3)	Credits for settlement - graduated scale UNLESS ‘s elect to take a $ for $ credit (all s must agree).
V.	The 11th Hour
A.	Pretrial Conference -- Rule 166
1.	Koslows v. Mackie -- (Tx. is a latecomer to pretrial conferences)
a)	Issue:  Can the trial court order parties to confer and file a joint progress report, and then provide that failure to do so allows him to strike the pleadings?
b)	Yes.  Death Penalty Sanction is avaailable
c)	But - parties are entitled to NOTICE before this kind of sanction occurs.
(1)	NOTE:  Amendment Surprise
(a)	Problem:  Texas rules allow amendments to pleadings as a matter of right within 7 days of the trial date if ther eis no surprise.  If surprise, the courts remedy is usually an offer of a delayed trial (often unsatisfactory remedy, particularly for ‘s)
(b)	Solution:  R166 allows the judge at pretrial conference to make an earlier deadline for pretrial amendments.
(2)	Employer’s Mutual v. Butler
(a)	Held:  opponents cannot be required to turn over witnes slists through ordinary discovery (invades atorney work product) BUT the judge can require witness lists at pretrial conference.
(b)	This is within the trial judge’s discretion under R166
(c)	Policy Reasons:
(i)	Avoids the “padding” of the jury list:
(ii)	Too many people are usually listed as having knowledge of relevant facts, this leads to worthless depos/inefficiency.
(d)	Open Issue:  Do you have to call eveery witness that you listed/
(i)	Federal Ct. - “will call”/ “may call” lists
(e)	Butler doesn’t apply to testifying experts
B.	The Jury Demand
1.	Right to Jury Trial
a)	Texas v. Credit Bureau of Laredo--
(1)	Held:  there is a right to a jury trial but it can be waived
(2)	request must be made a reasonable time before trial, at least 30 days
(3)	Presumed harmful error if trial judge refuses an appropriate jury request (remand) when you are entitled to one.
(4)	Exceptions to the right to a jury trial
(a)	Case by case -- when there is some special reason that a jury has been held unsuitable
(b)	Civil contempt proceedings, election contests, habeus corpus proceedings for the custody of minor children, suit for removal of a sheriff, appeals in administrative proceedings
(c)	Advisory Juries -- when a jury is advisory only (as in certain family law cases), the trial court’s refusal to empanel a jury is not reversible error.
2.	Halsell v. Dehoyos -- (reasonable time before trial)
a)	a request for a jury within thirty days of trial = presumption of reasonableness (other side must rebut)
b)	Ratliff:  as a practical solution always put the request for a jury in your pleadings
3.	Jury Fee and Jury Request
a)	the timely payment of the jury fee alone is not enough; ther must also be a timely request.  However, if a timely request is made, then the trial court has no discretion to refuse the fee if paid on or before the appearance day.
4.	Waiver--
a)	waived if there is no timely demand or timely payment of fee (but note, above that fee can be paid as late as the appearance day, maybe even after the trial starts if no delay/disruption.
b)	a party’s waiver of a jury in the first trial does not prevent it from timely demanding a jury if the case is remanded for a second trial.
5.	Jury-fee benefits:  Party’s jury demand and fee protects the rights of all parties to a jury trial.
C.	Settings - Rules 245 - 249 and 3(a)
1.	Plains Growers v. Jordan --
a)	Held:  you are not entitled to notice of your trial setting (if you had notice of the docket call, that is precise enough).
2.	Cohen - request for a setting was considered notice of setting
a)	Ratliff:  this is an outrageous case--BUT it means that you had better communicate with the clerk of the court.
3.	Additional assurance of notice of the setting:
a)	R245 - requires a minimum 45 days of first notice of trial setting and a reasonable notice thereafter
b)	R246 - requires the clerk to give notice of trial settings upon written request of an attorney who encloses a return envelope properly addressed and stamped
(1)	the failure of such notice is grounds for a continuance or new trial
c)	R245 - all that a party is required to do in order to obtain a setting is to represent that it reasonably and in good faith expects to be ready for trial by the requested date.
d)	Local Rule
(1)	R3(a) - in order to avoid unfairness resulting from unpublished local rules, S.Ct. must apporve all local rules, and TRCP governs in the case of conflicts with local rules.
e)	Special Settings (two-tiered system)
(1)	Court must give priority setttings for certain cases (see Gov. Code sections 23.101-102, pg. 190)
(a)	court may give priority settings for some complex cases, etc.  This is discretionary with the court.
f)	“Ready for Trial”
(1)	this is a certification to the court that you are ready and waives the right to a continuance unless something intervenes after that time)
(a)	IN a case of intervening event, it is within the trial court’s discretion to refuse a continuance.
(b)	therefore, people often make conditional ready announcements
NOTE:  Grant or denial of an attorney’s motino to reinstate after the trial court’s DWOP (dismissal for want of prosecution) is discretionary.
D.	Subpoenas -- 
1.	Rule 176-180; Civil Practices and Remedies Code 22.001-22.002
Voluntary Witness:  go ahead and issue subpoena as a standard procedure to protect yourself in court to a right to a continuance if they fail to appear (just to explain it to them)
a)	absent witness -- entitled to a continuance if you used due diligence to obtain their presence at trial
b)	Greedy witness -- (ethical and trial strategy problem)
(1)	you don’t want to “buy” witnesses (impeachment)
(2)	you can make reasonable reimbursements (lost time at work, etc.)
c)	Involuntary Witness:
(1)	write of attachment -- sheriff can go get someone who rtefuses to show up under subpoena
(2)	Fees - a writ of attachment under the rules is ineffective unless counsel can show by affidavit that “all lawful fees have been paid or tenered” to the witness as required by R279
(3)	effect of subpoena--witness must show up day to day until excused (by judge or attorney issuing subpoena)
(4)	CPRC 22.002 -- Subpoena Range
(a)	anyone within 150 miles of courthouse
(b)	outside 150 miles, you can’t subpoena for live testimony
(5)	R177 -- Subpoena Duces Tecum
(a)	you can make witnesses bring documents, etc. with them
(6)	R178 -- service of subpoena
(a)	unlike R108 service of process, an interested person can serve a subpoena (as long as they are not a party)
E.	Continuance
1.	Continuances Generally
a)	Rule 251--application for continuance:
(1)	shall not be heard before the  files his defense 
(2)	will not be granted except:
(3)	for sufficient cause supported by affidavit
(4)	by consent of the parties; or
(5)	by operation of law
NOTE:  failure to provide supporting affidavits does not mean that the motion will be denied--only that the judge has absolute discretion to deny the motion if he so chooses.

2.	Forman v. Fina Oil 
3.	Held:  no continuance to depose your new witness after your “ready for trial” announcement
a)	shows the estoppel effect of a ready announcement
(1)	Generally, the motion for continuance must be filed before an unconditional announcement of “ready” since such an announcement waives the right ot seek subsequently a delay based upon any facts which are, or with proper diligence should have been, known at the time.
(2)	Exception:  when an unforeseeable event arises through no fault of the movant.
b)	trial court has great discretion to deny continuances (broadest discretion anywhere)
4.	Rule 252 - Except for the first request for continuance, the testimony of a missing witness must be unique (reason for continuance)
a)	Otherwise there is no magic in the first request for a continuance (granted more often, but no special privilege in the rules)
5.	Experts--(there is a different rule for experts created by case law)
a)	Even if it is your first request, the expert’s testimony must be unique (because you can buy experts anywhere)
6.	Charging continuances--
a)	courts tend to ration the continuances allowed to each side.  So, if the other side asks you to agree to a continuance, make sure that it is charged to his side.  Best way:  require him to file the motion, which you agree not to oppose)
b)	NOTE:  Agreed Continuances -- R330(d) -- Texas courts will almost always grant agreed continuances unless to do so wil unreasonably delay or interfere with other business of the court.  
7.	Diligence -- the failure to tak enecessary depositions promptly or to issue subpoenas early may hazard the right to continuance.
a)	Exception:  R252 -- if the party lives within subpoena range you cannot be penalized for failing to take that party’s deposition as long as you timely subnpoenaed
(1)	Example:  witness who was subpoenaed for trial, and therefore not deposed, does not show for trial.  You should be entitled to continuance.
b)	Brown v. Gage - strict compliance with R252
(1)	Elements of R252 must be shown
(a)	that the tetimony is material
(b)	showing the materiality thereof
(c)	that such movant has used due diligence to procure such testimony
(d)	stating such diligence
(e)	and the cause of failure, if known
(f)	that such testimony cannot be procured from and source
(g)	and if it be or the absence of a witness, movant shall state the name of the witness
(h)	the residence of the witness
(i)	what he expects to prove by him
(2)	Legal conclusions are no good--the motion must be detailed and factual
(a)	Ratliff:  many good lawyers don’t follow the steps because it is discretionary anyway
(b)	BUT if not strict compliance with R252, then trial judge has absolute discretion
(3)	Affidavist cannot contain hearsay.  BUT if you need a continuance and must show what you can expect to prove by the witness (as required by R252) then you can summarize the expected testimony in your own affidavit--this is not hearsay because it is not offered for the truth of the matter asserted (it is just your good faith belief of what that witnes swill testify to)
(4)	Religious Holy Holidays:  A statute mandates continuances when court proceedings would interfere with the observance of a religious holy day by a party, a juror or an attorney.
c)	Absence of Counsel
(1)	Rule 253:
(2)	General Rule:  Absence of counsel does not mandate a continuance
d)	Villegas v. Carter 
(1)	A court cannot leave a party without a lawyer and then deny the continuance (DP concerns)
(a)	client left in the lurch
(2)	of course, the lawyer leaving the client on the eve of trial was clearly unethical
e)	Dancy--it was abuse of discretion for a trial court, acting in violation of local rules, to deny a continuance and ignore a federal judge’s telephone call advising him that the attorney was required to be in Federal Court in a a case already in progress.
(1)	Perez--held that there was no abuse in denying a continuance when another attorney ably represented the movant at trial.
8.	Legislative Continuances (R254)
a)	Waites v. Sondock--
(1)	if the legislator is di8rectly involved in the case then continuance is mandatory
(2)	grants continuance for 30 days on either side of a legislative session
(3)	Trumped by Texas Constitution (open courts provision)
(a)	Even though R254 is mandatory, if a substantial existing right will be abridged by delay then the continuance will not be granted
F.	Recusal
1.	Rules 18a, 18b; TRAP 15 and 15a; Govt. code 74.053:
a)	No judge shall sit in any case wherein he may be interested, or where weither of the parties may be connected with him, either by affinity or consanguinity, within such a degree as prescribed by law, or when he shall have been counsel in the case.
See CHART, p.42
2.	Buckholts School - 
a)	Motion to recuse must be made at least 10 days before trial
(1)	if denied--appeal with abuse of discretion review
(2)	if granted--no review
b)	Motion must be heard by another jduge (the judge under attack must request the presiding judge to assign another jduge to hear it)
3.	Rules 18a, b:  contain both the standards and mechanics for recusal (READ CAREFULLY)
a)	Appearances rule (new part of rule)--catch all--if judges impartiality can be reasonably questioned
4.	Recusal v. Disqualification
5.	Recusal=statutory
a)	must be raised at appropriate time or waived (assuming there was no notice)
b)	Any complaint is waived if not timely
c)	requirement for verification
d)	NOTE:  bias relevant to recusal must be from an extrajudicial source (it cannot be proven from the judges conduct of the case in which the question is raised)
6.	Disqualification = constitutional
a)	So strong that it taints anything in the proceedings
b)	EXAMPLES:
(1)	financial interests (“direct pecuniary interests”)
(2)	related to a party (within 3 degrees)
(3)	Judge or family thereof has represented a party
c)	Cannot be waived--therefore both sides have an incentive to expose problems with the jduge and do something about it.
(1)	BUT may be waived by failure to timely protest (after you find out that the judge should have been disqualified)
(2)	A judgment rendered by a constitutionally disqualified judge is “absolutely void” and may be attacked collaterally, after judgment, on appeal. 
(3)	NOTE:  the judge is disqualified if he has been a counsel in the case or if his law firm was counsel.
(4)	BUT it has been held that a judge may hear a constitutional attack on an ordinance that he drafted while serving on the city council. 
d)	Sun Oil v. Whitaker-Even though the Tx. S. Ct. Justice did not have a direct pecuniary interest, he voluntarily recused himself because he owned some land under a Sun Oil lease which was due to be renegotiated
(1)	Held:  jduge is qualified to participate in the decision AND it is his duty to serve
(2)	Ratliff:  This is ridiculous.  In a doubtful case, the judge should recuse himself.  
e)	The potential for bias and partiality is readily apparent when a judge is related to a party or the party’s attorney
f)	Public Policy demands that the judge who sits in a case act with absolute impartiality
7.	Degrees of Cosanguinity (blood) of Affinity (marriage)
a)	Judge cannot be within three degrees of consanguinuity or affinity to a aprty in a case or within one degree to a lawyer
b)	How to count
(1)	Don’t count across, count vertically to the common ancestor and then back down.  (adopted child=natural child)
(2)	Ratliff--you usually feel closer to your cousing than your uncle, But first cousin=4 degrees of cons., while uncle=3.
8.	Sun Exploration - Waiver
a)	Held:  the judge has an obligation to make his relationships known
b)	No waiver if the party does not know of the jduges relationship, (has no notice), and fails to file a motion to recuse
c)	Sandbagging Problem--encourages “wait and see” litigation.  If you lose, then go investigate the judges ties to the case.
d)	More leniancy in rural areas
e)	No motion required can be raised by court????
9.	Texaco v. Penzoil--(campaign contributions)  Texas has held to the view that campaign contributions from lawyers or litigants do not justify a recusal.  Could a judge have a “financial interest” in a victory by his contributors?  Wouldn’t their ability to give more $ in his next campaign be enhanced?
a)	Held:  campaign contribution to judge are NOT grounds for recusal
b)	Ratliff:  problem of bidding war.  Makes the system look pretty bad
10.	Money v. Jones--(Assigned Judges)
a)	If a visiting judge is assigned, then each party has strike to keep a judge from sitting
(1)	Govt.. Code 74.053d - you get only one strike
(2)	Ratliff- problem: if you don’t know which judge is waiting in the wings, you want to think hard before making your strike
b)	Excetpion :unlimited strikes against a former judge who was not a retired judge(just wasn’t re-elected)
c)	Must make objection/strike before the judge takes any action in the case-otherwise obj/strike is waived
(1)	Must be in writing
NOTE: this applies to any assigned judge whether the judge is visiting or is an active judge assigned from within the district.
G.	Amendments on the Eve of the Trial
1.		Rule 63 and 66-A trial ct. has no discretion to refuse an amendment unless
a)	the opposing party presents evidence of surprise or prejudice
b)	the amendment asserts a new cause of action or defense, and is thus prejudicial on its face, and the opposing party objects to the amendment
2.	Chapin-
a)	Facts-(D) forgot to put verification on a denial, so (P)’s pleadings were accepted as fact
b)	Formal vrs. Substantive Amendments
(1)	 Formal Amendments (technical details) should be allowed--this is the case here
(2)	 Substantive Amendments, however, may not be as easy to get
(a)	Allowance of amendment dependant upon:
(i)	whether it creates surprise or prejudice to opponent
(a)	To show surprise MUST move for a continuance and have had it overruled
(ii)	ii) Ex: Stevenson-the addition of 5 new causes of action & drastic increase in prayer for damages was not allowed (abuse of discretion to so allow)
(3)	Preservation of error requires that motion for continuance be overruled.

H.	Motions in Limine
1.	Hartford Accident-
a)	This motion does not preserve error
b)	 Must object during trial as if the motion had never been made
(1)	Reason-give the judge the chance to review the material previously objected to in the context of the trial
c)	Complaints of the admission of an opponent’s evidence must be preserved by objection, AND if the testimony violates the order in limine, the complainant must object and move for:
			1) an instruction to the jury to disregard evidence
			2) Or, a mistrial
d)	 Complaints about the exclusion of your own witness must be made by a proper tender or offer of proof (BofExceptions)
e)	 Sanctions for violating Motion in Limine:
			1) contempt
			2) also probably mistrial
			3) probably not striking of pleadings
I.	Trials by Special Agreement
1.		Rule 263 (Agreed Facts); Rule 264 (Video Trial)
a)	 Rule 263 (Agreed Facts)
(1)	Permits a trial to be had on stipulated facts
(2)	Judge just applied the law and appellate ct. simply reviews the correctness of the legal application
b)	Rule 264 (Video Trial)
(1)	 Permits entire trial to be presented by videotape
(2)	 Ratliff-no cases have interpreted R264-however, this may suggest that:
(a)	the trial ct. might allow portions of the trial to be presented by video tape; OR 
(b)	you could tape the witness during trial and then recap in closing cw/clips of the testimony
(c)	Ratliff - however, R264 probably doesn’t allow
2.	Crow-Southland Joint Venture-
a)	“Stipulations in an agreed case are binding on the parties, the trial ct., and the reviewing ct.
b)	All facts necessary to the presentation of the case are conclusively presumed to have brought before the ct.
c)	We do not draw any inference or find any facts not embraced in the agreement
d)	We do not review the legal or factual sufficiency of the evidence in a case tried on stipulated facts.
e)	Rather, we review only the correctness of the law to the admitted facts.”
J.	Motions to Bifurcate
1.	Rule 320; T.R.A.P. Rules 81(b) and 182(b):
a)	a bifurcated trial is required if requested in a punitive case 
2.	“it is only where the issues are so intertwined they can’t be separated that the judge can’t order bifurcated trials.”
3.	Iley v. Hughes-
a)	 R174(b)--Judge can separate questions for different trials
(1)	BUT can’t separate damages from liability in a personal injury case
4.	 Rules 320 (Motion for new trial) and 81(b) (partial remand)--combine to disallow the remand of only part of an unliquidated damages case (doesn’t apply if the damages are liquidated (not in dispute))
a)	a court can’t uphold judgment of liability and send back the damages portion of the case
b)	don’t confuse this w/a situation where issues are taken out as a matter of law
c)	justification--visceral notion of the right to have the jury sympathize ((P)’s notion that bifurcation shouldn’t occur b/c it may deprive liability sympathy from the jury)

5.	Transportation Ins. v. Moriel-
a)	s net worth/financial resources is admissible in a punitive damages case
b)	BUT--this is unfair, so we will bifurcate the punitive damages question (& only there can you put on evidence of net worth)
c)	Bifurcation is not automatic--must file a timely motion to bifurcate
d)	Ratliff-this was meant to be pro-(D), but now (P)’s are the ones moving to bifurcate
(1)	Original jury will load up on “Actual” and pain and suffering (b/c they this is all the (P) will get), and
(2)	Punitives jury will load up as well
K.	The Trial Begins
a)	Rules 7-10 (Attorneys); Rule 265 (Order of Proceedings);Rules 265-266 (Right to Open and Close the Evidence)Rule 7-Pro se--ordering a party to be represented by counsel violates R7 (absolute right of self representation in TX)
(1)	Once you become attorney of record it may be difficult to w/draw-R10 lays out the steps that are required
b)	Sequence of the trial/Order of Proceedings (Rule 265)
(1)	See rule (below are customs that are unmentioned in the rule)
(2)	Custom of allowing witnesses to be called out of order	
(a)	b/c the witness will be unavailable later or expert witness fees, etc.
(b)	Discretionally, but should allow (abuse of discretion)
(i)	probably abuse of discretion not to allow if the situation is acute 
			c) (D)’s don’t have to give opening statement at beginning of the case 
(ii)	BUT can’t have (D) 1 open at beginning & (D) 2 open again at the beginning of the (D)’s case in chief 
L.	 Invoking “The Rule”
		Rule 267 and TRCE 614 (parable of Susanna and the Elders)
1.	Purpose of “the rule”--keep future witnesses from sitting in the courtroom to see the witnesses who go before them--so they can’t corroborate their testimony
a)	Witnesses under “The rule” cannot converse with each other or with any other person about the case (other than the attorneys int he case) except by permission of the court.  ALSO they are not to read any report of or commentary about the testimony in the case while under “The Rule”.
b)	Sanction for violation by witness or anyone else=contempt
(1)	R267 and TRCE 614 overlap
(a)	R267 provides more procedural details
(b)	TRCE 614 permits the court to invoke “The Rule” on its own motion otherwise, they both contain the same essentials
c)	Trial court has wide discretion
(1)	if a witness who has been “placed under the rule” then hears trial testimony, the judge can recuse to allow him to testify
(a)	Ex: When the rule had been invoked and an investigatory remained in the courtroom and heard testimony, the trial court didn’t abuse its discretion in refusing to allow him to testify even though his only role would be to authenticate a tape recording impeaching the (P)’s testimony.
d)	Experts-often excepted from the rule even though they qualify under TRCE 614(3)-essential to the presentation of the cause
(1)	BUT, you may not always want to waive the rule for experts b/c they are costly, and you may have to make a cost analysis-can you afford to pay your experts to sit through the whole trial?

e)	Depositions-”The Rule” may not apply to them
(1)	The S.Ct. ditched the issue (but definitely doesn’t apply if the duration of witness exclusion from depos is perpetual)
(a)	Rule 267 speaks of “the courtroom” and 614 seems to relate to testimony at trial
(b)	Ratliff-”The Rule” probably should apply to depos.  Otherwise, what good would “The Rule” be at trial?  (the witnesses would already have heard each other’s testimony under oath while in depo.)
f)	Who polices the rule?
(1)	Judges usually rely on attorneys to see that no witness is contaminated by hearing testimony.  That is why a visitor entering a courtroom during trial often finds lawyers staring at him!

“When certain objections are made”
Overview
VI.		JURY SELECTION
A.	Assembling a Jury Panel
1.	Rule 226, 226a, Gov’t Code Chapter 62
a)	How does a jury get to the courthouse?
(1)	potential jurors--eligible jurors are selected from a barrel of names (some jurisdictions use computers)--names are drawn at appropriate times using a jury wheel
2.	Hefflin-selection of potential jurors by jury commissioners instead of the mandated jury wheel was sufficient, without more, to establish harm
3.	Panel for the week-During jury week, the judge lists a panel of potential jurors for that week 
4.	Challenge to the Array: 
a)	NOTE: that irregularities in making up the jury list may be attached by a “challenge to the array” under R221.
b)	However, if the jurors have been selected by jury commissioners or drawing names from a jury wheel, the later being an almost universal practice, a R221 challenge is inappropriate.
5.	Jury Selection (not a science or art-it’s voodoo!)
a)	See Rule of “P”’s: no professors, no policemen, etc.
(1)	Counsel may rely on a judge’s weeding out of jurors based on fundamental qualifications and focus on Voir Dire on disqualifications for the particular case.
(2)	Rule 230 prohibits questions to the panel during Voir Dire regarding convicted felons or those charged with theft or felony
6.	Voir Dire (3 things to do)
a)	Try to show bias or prejudice
b)	Try to get info. so you can make a good peremptory strike examination
c)	Ingratiate yourself to the jury w/long, charming voir dire
d)	to the extent that you’re going overboard, the time and amt. of questions asked during voir dire is exclusively w/in the trial court’s discretion
7.	Mendoza v. Ranger Ins.-Moved for mistrial b/c a disproportionate # of jurors were from a single occupation.  This occurred b/c all school year long, teachers were excused from jury duty, so in the summer/one jury week, the jury panel was overloaded w/teachers. (P) complained about lack of randomness--alleged deprived him of random selection prerequisite for a fair trial mandated by the Texas Constitution
a)	Held-b/c const. right was alleged to have been infringed, (P) didn’t need to show harm
b)	The right to random jury selection can be waived if not objected to
8.	Size of the Jury Panel
a)	must select 12 jurors plus, 
b)	Each party gets 6 strikes plus,
c)	Estimate of “for cause” challenges/excuses (ex. 16)
d)	So, we need 40 panelists for a 1(P), 1 (D) case
9.	The Jury Shuffle can only be done once-R223
Originally, the potential jurors should be listed in order in which they were randomly selected and then assigned for service from the top of the list
a)	sometimes you may have more panelists than you actually needed (50 instead of 40 you estimated)-you can ask the judge to reseat the panelists so that the back row (that previously would not even have been considered) will be shuffled in
b)	Reason-you go down the rows of panelists one by one until you get 12 jurors, so you may not even get to the back row.  (What may happen is the front row is all farmers & the back row is all bankers, so you want the back row shuffled in)
Normally, this is done by asking all the jurors to leave & come back in a different order, but this is very time consuming & it may please the judge if you not ask for the jury shuffle when the list/seating chart comes out (i.e., before they are originally seated)
c)	R226(a)-make sure you talk to your client and everyone who works for them, & tell them NOT to go near the jurors (don’t communicate with them at all)
d)	Ratliff-I try to avoid restrooms and elevators on the same floor as the court
B.	Voir Dire Examination: Scope and Procedure
1.	General Rule: Counsel may inquire about anything relevant to the issues to be tried, the facts to be presented, or the parties themselves.  It is clear that voir dire questioning is not limited to information supporting challenges for cause, but extends to information relevant to the exercise of peremptory challenges.  Obviously, no questions may be asked which would introduce matters not admissible during trial.
a)	Babcock v. Northwest Hospital-Litigants have a right to question prospective jurors about their exposure to media coverage of the “lawsuit crisis.” A broad latitude should be allowed to a litigant during voir dire examination.  This will enable the litigant to discover any bias or prejudice by the potential jurors so that peremptory challenges may be intelligently exercised.
(1)	NOTE: This case took place at the height of the (P)’s influence on the Tx.S.Ct. Misleading case b/c it gives you the notion that there are some questions you are entitled to ask, disallowance thereof will be grounds for reversal (this is not really the case)
(2)	Facts-(P) wanted to ask 2 types of questions (but this was disallowed)
(a)	are you aware of lawsuit abuse crisis?
(b)	can you normally ask about coverage of claim (insurance) (Has anyone near you handled claims?)
(3)	Held-judge does not have discretion to disallow these types of questions
(a)	Ratliff-this is still the law, but it will be limited
(4)	Babcock is an exception to the rule on judge’s discretion in voir dire:
(5)	Usually the judge is the sole decider of: time for questioning, type of questioning, recesses etc.
b)	Hypothetical Questions to potential jurors (will these Q’s be allowed?):
(1)	“Will you return a verdict for us if we prove...?”
(2)	NO. “Contracting with the jury” (an attempt to commit the juror on a hypothetical set of facts)
(a)	Contracting with the jury: Generally, lawyer may ask whether a certain fact anticipated as evidence would prejudice a juror, one may not seek a definite commitment in advance as to the effect which the juror would give to particular evidence, or the verdict which he or she would give render in an assumed state of the evidence
(3)	“Can anyone not five $1 million in damages b/c they thing it is too high?”
(a)	YES, this will be allowed
(4)	“If we can prove..., can you give us $3 million?”
(a)	Grey area, but probably won’t be permitted
(5)	“Will anyone be biased against my client b/c he was an alcoholic?”
(a)	Yes, would be allowed.
(6)	“What if my client was convicted of perjury?
(a)	Probably won’t be allowed.
2.	Showing Harm-
a)	presumed harm-was not used in Babcock
b)	Const. right to impartial jury-they used this, no showing of harm needed
c)	Juror’s concealment of Failure to respond to a Voir Dire Question
3.	It is extremely difficult to reverse a judgment based on a juror’s failure to answer questions seeking info. about the juror’s experience.
a)	Childers-Tx.S.Ct. discussed the traditional rule which incorporates a notion of presumed harm: “where there is an uncertainty as to the effect of the withheld info. on the mind of the juror as to what way the undisclosed info. might affect his mind, a new trial should be granted.”
(1)	BUT didn’t apply presumed harm-refused to reverse b/c the appellant had not shown that the error “was calculated to cause and probably did cause the rendition of an improper judgment in the case.”
(2)	Ratliff-w/out presumed harm, then there’s really no way to get a reversal (especially considering the fact that the rules cloak the juror’s deliberations so that the acts/conduct of the suspect juror would be inadmissable).
4.	Group Questions: Voir Dire questions addressed to the entire panel are particularly weak as the basis for reversals.
a)	Courts will accept jurors’ excuses for not responding b/c, for ex., they could not hear or understand the question, etc.
(1)	Case law required that counsel ask direct questions, see that each juror hears and understands them, identify for the record jurors who indicate a need to respond (raised hands), and follow up with specific questions
(2)	Don’t ever let the court reporter be excused from recording the voir dire examination

C.	Challenges for Cause Rules 227-231; Chapter 62, Government Code
1.	Statutory Disqualifications and Excuses
a)	General/statutory disqualifications and excuses done before voir dire
(1)	anything which, by law, disqualifies him to serve as a juror in any case (e.g., convicted felon, noncitizen, etc.)
(2)	Listed--under 18; noncitizen; not qualified to vote in the county; can’t read and write; is a convicted felon; under indictment or legal accusation (for felony or theft); not of sound mind and good moral character;
b)	ALSO:
(1)	served on jury w/in prior 6 months
(2)	Gov’t Code 62.105 also disqualified a juror if he is a witness in the case, directly or indirectly interested in the subject matter, is related by blood or affinity w/in the third degree, has a bias or prejudice in favor of or against a party in the case, or has served as a juror in an earlier trial of the case or another case involving the same fact questions
c)	Blind and deaf jurors-not automatically disqualified, but may be disqualified in a particular case, if in the court’s opinion, the impairment renders the person unfit to serve
(1)	No discretion-A statutory disqualification requires the court to excuse the juror.  The error is one of law, and the trial court has no discretion.
(a)	BUT challenges for cause based on the circumstances of the case-abuse of discretion standard
(2)	Circumstances of the case- (almost always b/c of bias or prejudice)
(a)	Ex: this is a drunk driving case, and your son was killed by a drunk driver
(i)	The statue is written in terms of bias or prejudice against a “party,” but can also be a bias against a particular type of case
(3)	When a trial court dismisses/refuses to dismiss a juror for cause, it is inferred that the judge is finding (finding of fact) that juror is/is not biased/prejudiced
(4)	So on appeal of refused/granted for cause challenge review is of the judge’s fact finding
d)	Abuse of discretion standard-(so there are cases upheld where the judge didn’t dismiss the juror even though they were very clearly biased)
e)	Knowing an attorney socially:
(1)	Litmus test-have you ever visited in his home, or he in yours?
(2)	If “yes”, then challenge for cause (if “no” then must use a peremptory strike)
Ratliff-I think lawyers should place emphasis on voir dire (as much as closing argument) considering that it is truly your first chance to commune with the jury (attempt to endear yourself)

2.	Voir Dire Sequence
a)	General statement about the case (acquaint them w/the facts)
b)	General Questions to the panel- “Does everybody understand, or do you want me to draw a freaking diagram?!?”
c)	Ask a series of questions that lead to a showing of bias/prejudice (See Swap Shop, Flowers and Gum, infra)-then you can get them dismissed for cause
d)	Lawyer will challenge for cause out of earshot of the jury (once the jury member says the disqualifying information)
e)	Voir Dire generally consists of a lot of furor about whether you can challenge for cause - you are trying desperately to save your 6 peremptory strikes for people who can’t so obviously be disqualified for cause

f)	Compton v. Henrie-General Rule: a person is disqualified from serving as a juror if he has a bias or prejudice in favor of or against either of the parties.  Bias or prejudice disqualified a juror as a matter of law and removes all discretion from the trial judge.
(1)	The Court of C/A concluded that in cases of juror disqualification no injury need be established before a new trial may be granted

g)	Fact findings on disqualifications
(1)	Keep in mind that in some of these cases the judge is trying to “rehabilitate” and save jurors b/c there are very few left at the end of Voir Dire
(2)	bias and prejudice is a question of fact for the trial court (juror disqualified for cause)
(3)	court has to find bias or prejudice conclusively (as a fact Q) reviewed under the zone system for no evidence or conclusive evidence
(a)	BUT it is a different standard of review from a usual fact questions (“conclusive” means something less here)
(i)	remember the rule that one person/witness can create a fact questions w/contradictory testimony; that rule doesn’t apply in this situation
(a)	Here, once a juror admits to bias or prejudice, them that is conclusive proof
(b)	it does not matter whether the judge or lawyer rehabilitates the juror (by getting him to say that he can lay his prejudice aside and render a verdict based solely on the law and the evidence)

h)	Swap Shop v. Fortune-There can be no rehabilitation once a juror’s admission establishes bias or prejudice conclusively.  The difficulty lies in determining what evidence constitutes conclusive proof and what merely raises a fact question.

i)	Flowers v. Flowers-Gossip or rumors about the case-one woman hated drinker.  Held: good questioning.  Juror dismissed for cause.  Proper question: panelists bias against the use of intoxicants.

j)	Gum v. Schaefer- Whenever the evidence does not conclusively establish the panelist’s disqualification as a matter of law, the appellate court must consider the evidence in a light most favorable to upholding the trial court’s ruling.

3.	Preserving Error; Reversible Error

a)	Hallet- To complain about error when the trial court refuses to permit a challenge for cause, the party must follow the procedure set out in this case.  They must:
(1)	During voir dire, challenge the panelist for cause.  The record must reflect the objection and that it was overruled.  If there is any discussion with the panelist at the bench, to preserve error the party must make sure the court reporter records it.
(2)	Before the party submits its list of peremptory strikes, the party must do the following:
(a)	inform the court that, as a result of its erroneous ruling on the challenge for cause, the party will exhaust its peremptory strikes
(b)	identify the objectionable panelist who will remain on the panel, and 
(c)	state that, but for the court’s erroneous ruling on the strike for cause, the party could have used a peremptory strike on the objectionable panelist. (you don’t have to explain why you would have struck this guy, just name him)

(3)	The party is required to tell the court which specific, objectionable panelist will remain after the party uses is peremptory strikes.  If the party does not make the objection before it turns in its peremptory strikes, it waives error.
(4)	The party should request the court reconsider its ruling on the strike for cause and ask for an additional peremptory strike to compensate for the erroneous ruling on the challenge for cause.

D.	Peremptory Challenges General Rules 232, 234 (Striking panelists); Rule 235 (Additional jurors)
Reapportioning Peremptory Challenges-Rule 223, TRAP 81(b), and 184(b)
a)	Gulf v. Keith- Until Batson, peremptory challenges were thought to be a privilege & that no one had the right to know why you used it (unfettered right to strike potential jurors)
b)	But problems arose-when one side of the dispute has more parties (i.e., 6 (D)’s) so they let more strikes
2.	Reapportioning Peremptory Challenges
Rule 233,, Rules 81b and 184b, T.R.A.P.
a)	Antagonism-if no antagonism among co-(D)’s, then they get only 6 strikes as a group
(1)	allows the judge to reallocate challenges if he decides that there is antagonism
(2)	Aside-initial step is to align the sides on the correct side of the “v” (i.e., into (P) and (D)).
(3)	“Antagonism”-doesn’t necessarily mean they are on opposite sides (seeking affirmative relief from the other)-the focus is on whether parties have similar interests
b)	Allocation-once judge decides antagonism (which is a QUESTION OF LAW-either gets it right or wrong=error of law/if wrong, not necessarily reversible)-then he controls the # of strikes discretionarily (for ex., he could give each (D) 2 strikes or the (P) 20 strikes, etc.)
(1)	Dunn-2:1 ration of (D)’s to (P)’s strikes is probably ok; 4:1 is, as a matter of law, abuse of discretion (3:1 we don’t know-circumstances will determine)
(2)	Summary-
(a)	Antagonism-Question of Law (no discretion)
(b)	Allocation of strikes (once antagonism is established)-discretionary
(c)	BUT in either case (erroneous finding of antagonism or unfair allocation)

c)	Tamburello v. Welch-(P) alleged negligence of one party was the sole cause of the accidence, and the (D)’s advised the trial court that they were each claiming that the accident was caused solely by the negligence of the other-so their interests were clearly antagonistic.
3.	How do you show harm?
a)	Materially unfair trial (=presumed harm)
b)	Factors:
(1)	Where there is misallocation of a significant number of strikes (here, 3 per antagonistic (D)-they wanted )
(2)	Evidence in the case is sharply conflicting
Even though an error is one of law (antagonism), you have to make a showing of the above factors

4.	Patterson Dental-Hotly contested trial (surrogate for sharply conflicting evidence)
a)	In order to find “sharply conflicting evidence” (a close trial), you have to look at the record.  However, in this case the atty. forgot to send the record and the app. ct. created a “hotly contested trial” rule to help him out
(1)	Hotly contested trial:
(a)	No motions for DV
(b)	No motions for SJ
(c)	Large # of jury questions
(d)	Split verdict
R: this is a stupid test b/c parties almost file MSJ, MDV-so split verdict and lg. # of jury issues are really the only factors that are indicative of a “hot contest.”  (Not even Texaco v. Pennzoil would qualify under this!)

5.	Garcia v. Central Power-(altered Dunn in 2 ways)
a)	Pleadings don’t control whether people are antagonistic-we will look at their conduct during the entire case-so we may reverse the trial court’s ruling based on conduct antecedent to his ruling
6.	Lopez-if antagonistic in pleadings but not at trial, then you will be reversed (If that’s your conduct, then you are not antagonistic & we won’t let you get away w/having 6 strikes each)
a)	Added “hotly contested trial” as an ADDITIONAL factor for showing harm:
(1)	significant misallocation of strikes; and
(2)	sharply conflicting evidence
(3)	Hotly contested case
b)	Lopez-we have relaxed the “harmless error” rule in this circumstance (this is understood from the case even though they don’t flat out say “presumed harm”)
7.	WAIVER-the right to reallocation can be waived
8.	(P) must make a R233 motion to reallocate 
a)	Any complaint concerning unfair allocation of strikes is waived if not timely made (ideally, at the time the court reapportions or refuses to reapportion)
b)	Can not ordinarily be raised for the first time in a Motion for New Trial
c)	If, however, the complaint is based upon in-trial cooperation between “antagonists”- as in Lopez- The MNT might be the first opportunity to complain & should preserve error
9.	Party’s burdens-
a)	Presumptively, each side of the “v” gets 6 strikes
b)	Either party (usually (D)’s will try to show antagonism (so they can each get 6)
c)	(P) (usually) moves for reallocation (b/c 6 each would be unfair)

E.	Constitutional Limits on the Exercise of Peremptory Challenges
1.	The U.S. Supreme Ct.-Batson and its progeny (Alabama)
a)	prohibition against basing peremptory challenges on race
b)	also extends to gender under Alabama
c)	S.Ct. refused cert. on the issue of strikes based on religion (JEB)

2.	Lott- Tells us how to apply Batson, Edmundson and Alabama.  Batson hearing is an evidentiary hearing, so the usual rules of procedure and evidence should be followed in it
a)	if you aren’t under oath, then your response to Batson challenges won’t be considered on appeal
b)	To show prima facie case of a Batson violation:
(1)	the complainant must show a suspect pattern of the use of strikes
(2)	all strikes against one race; or
(3)	all of one race was struck (i.e., there were only 3 blacks on the panel)
NOTE: it is an open question whether striking the ONE Asian on the panel is a “suspect pattern”
c)	Once the prima facie case is shown, the burden shifts to the striker to show a race neutral reason for so doing.
(1)	Factors that might indicate non-neutral reason:
(2)	Reason not related to the case
(3)	Didn’t ask the struck juror any questions
(4)	Jurors with similar characteristics (other than race or gender) were not struck
(5)	Disparate questioning to try to elicit a strike reason
(6)	Explanation of strike based on some group bias

Ratliff: Scalia says this will ultimately lead to the end of peremptory challenges
d)	Standard of Review:
(1)	“Clearly erroneous” standard
(2)	Great deference to the trial court
(3)	Lott, the S.Ct. said to look at the evidence int eh light most favorable to the trial court’s ruling in an effort to confer greater difference on the trial court (but this is the same standard we use in Texas, and this greater deference hasn’t quite developed yet)
(4)	Any one race-based strike (or otherwise discriminatory) is enough to get the case reversed (contrast w/”material misallocation” standard)
(5)	Even if co-(D) is the one who did the strike and was Batson-challenged, your case will be reversed on appeal, too.  ( a race-based strike by anyone taints the proceedings)

WAIVER-any Batson complaint must be voiced before the jury is sworn or it will be waived

e)	  “U.S.S.Ct. and Tx.S.Ct. determined that the use of peremptory challenges to discriminate against potential jurors in a civil case b/c of their race is a violation of the excluded juror’s right to equal protection, a right that may be asserted by the party not exercising the peremptory challenges”

f)	 Batson requires that the complaining party must establish a prima facie case of discrimination.  That is, the complaining party must present evidence that gives rise to a rebuttable presumption of racial discrimination by the striking party in the exercise of its peremptory challenges.  If the complaining party carries that burden, then the burden shifts to the striking party to rebut the presumption by a racially neutral explanation for each peremptory challenge exercised against a minority venire person

VII.	THE TRIAL
A.	The right to Open and Close- R266
1.	Rule 266- the (P) or a party with the burden of proof on the whole case:
a)	makes the first statement
b)	calls the first witness
c)	has the right an opening and closing argument
NOTE: so long as (D) contests any part of (P)’s case (even damages or atty’s fees) D does not have “the burden of proof on the whole case”
2.	Rule 269- looks at the burden of proof right before the closing argument is made (who gets to open and conclude the closing arguments?)
a)	This might change from the beginning of the case (e.g., (P) has burden of proof on damages, but the (D) stipulates them so that the (P) has no burden of proof)
b)	harmless error for the judge to wrongfully allow (D) to assume burden of proof just so the (D) could open and close
(1)	BUT b/c the right to open and close the arguments and evidence is extremely valuable, it probably would be harmful error to let the (D) open and close if the (D) had not assumed the burden of proof
4m- TRCP 266 provides “that the (P) has the right to open and close argument.  There are two exceptions....First, a (D) has the right to open and close if the burden of proof for the entire case under the pleadings is on defendant....Second, a (D) has the right to open and close if, before trial begins, (D) admits that (P) is entitled to recover, subject to proof of defensive allegations

B.	Judge’s General Authority to Manage the Trial
1.	Rule 265-The role of the opening statement
a)	The trial of cases before a jury shall proceed in the following order unless the trial court should, for good case stated in the record, otherwise direct:
b)	The party upon whom rests the burden of proof on the whole case shall state to the jury briefly the nature of his claim or defense and what said party expects to prove and the relief sought.  Immediately thereafter, the adverse party may make a similar statement, and intervenors and other parties be accorded similar rights in the order determined by the court.
c)	The party upon whom rests the burden of proof on the whole case shall then introduce his evidence
d)	The adverse party shall briefly state the nature of his claim or defense and what said party expects to prove and the relief sought unless he had already done so
e)	He shall then introduce his evidence
 
2.	The intervenor and other parties shall make their statement, unless they have already done so, and shall introduce their evidence
a)	The parties shall then be confined to rebutting testimony on each side
b)	But one counsel on each side shall examine and cross-examine the same witness, except on leave granted

3.	Rangers Ins.- (opening statement)
a)	This is a matter largely w/in the trial court’s discretion
(1)	Opening statement should be a short, brief statement of the nature of his claim or defense; or just read the pleading
(2)	Despite the language of the rule, the commonly observed TX custom is to permit counsel to summarize the testimony of carious witnesses and to highlight areas of dispute and expected proof BUT judges don’t like attorneys to be agitated or to state inferences from evidence that the jury hasn’t heard
b)	Motions in limine- to avoid long statements and inferences from outside the evidence, we have extensive Motion in Limine
c)	To use exhibits in the statements, you must show them to the judge in pretrial conference
d)	The proper limitation of the opening statement is a matter resting in the discretion of the trial court subject to review for abuse of discretion.  Judge can control:
(1)	scope of opening statement
(2)	setting reasonable limits on the number of witnesses on a given point
(3)	allotting time for voir dire examination and argument
(4)	and controlling the ct. rm. conduct of atty’s and witnesses
4.	So long as this authority is exercised even-handedly and not so as to suggest the judge’s opinions about the credibility of witnesses or the merits of the case or so as to demonstrate a bias about the parties or lawyers, the trial court’s actions will not like be reversed.

C.	Who Can Questions a Witness? - R265
1.	 Pitt v. Bradford- A judge is discouraged from questioning a witness but harmless error to do so.
a)	“To revers a judgment on the ground of judicial misconduct, a complaining party must show either trial ct. bias or that he suffered probable prejudice”
b)	  It is impermissible to ask questions in a way that shows bias or prejudice in the case

2.	Born v. Virginia- it is fine for a judge to question a witness
a)	NOTE: they can’t express opinions, though - only questions to clarify for the jury
3.	
Fazzia v. Guido- Jurors questioning witness 
a)	Facts-after both (P) and (D) did their direct and cross of each witness, the judge allowed the jury to submit written questions.  Before they were asked, the atty’s were given a change to review the questions and determine their admissibility
b)	Held-no fundamental error, (and no harm, since the parties were given a chance to screen the questions and didn’t object to them
c)	Since this decision, the Ct. of Crim. App. has reversed some decisions cited in Fazzino and condemned the practice of allowing jurors to propose questions in criminal cases

D.	The Judge’s Comments Before the Jury
Example-judge says that your evidence is a sham, or says “I don’t like your cross-examination style”
1.	Proper objection should include both
a)	that this is a “comment on the weight of the evidence” by the judge AND
b)	Request that the remark be withdrawn and to instruct the jury to disregard it-if judge does that then no reversal (unless incurable error)
2.	To preserve error-the party objecting to the judge’s comment must make an objection at the time of the occurrence (otherwise the error is waived) unless the comment is of a character that cannot be rendered harmless by a proper instruction
3.	If incurable error, then no record is necessary (but it is really difficult to predict what will 7 what will not be deemed incurable error)

4.	State v. Wilimon-Object and Request

5.	Brook v. Brook-To reverse a judgment on the ground of judicial misconduct, we must find judicial impropriety coupled with probable prejudice to the complaining party.  Harm is required in these circumstances and App. Ct. looks at record in whole to determine harm

6.	Meat Producers v. McFarland-Proper objection to judge’s prejudicial remarks is: “comment on the weight of the evidence”, and then follow with instruction to disregard comment or statement
a)	 What do you do in response in any improper argument?
b)	Request for curative instruction, unless comment is incurable
E.	Jury Views
1.	State v. Berry- 
a)	Jury View=taking the jury to inspect the site of the incident in question
b)	If you put your opponent in the position of objecting to a “Jury View”, then it is reversible error.
c)	Why?
d)	b/c jurors might think objecting party is “hiding something”
e)	and some subsequent remedial measures that have previously been motioned out (motions in limine) might be present on the site = (See #4)
(1)	BUT-if judge intervenes and say “no way”, then not harmful
(2)	WAIVER-in order to complain on appeal of an opponent’s suggesting of a jury view, one must object and, presumably, ask for an instruction to disregard the comment
Texas is apparently alone in its prohibition of jury views.  We feel that jurors might see or hear something that is not in evidence and, therefore, the record will not include all info. brought to the juror’s attention

F.	Stipulations
1.	Ex-stipulate to amount of doctor fees (in practice, “I will stipulate to “X” and won’t put on opposing evidence that it isn’t reasonable)
a)	Stipulation as to ultimate fact--does not go to jury
b)	Stipulation as to witness testimony--goes to jury
c)	Stipulation--regarded by law as a contractual agreement (intent is paramount) BUT court CANNOT construe stipulation to be an admission if contradictory or ambiguous
d)	Stipulation--if not clear, evidence
e)	Contract Law--if not clear, parol evidence
f)	Conditional Stipulation--not evidence if the condition has not been met
g)	Stipulations in writing--Subject to Rule 11
(1)	Must be made in open court and in an order for judge 
(2)	in writing and entered into court and SIGNED
(3)	NOTE-stipulations to discovery (Rule 166c) can be one in depos w/out signatures

2.	Austin v. Austin-Ambiguity destroys a stipulation, and that makes it different from a contract

3.	Jackson v. Lewis
a)	Facts-sloppy stipulation-(P) get JNOV based on the trial court’s construction of the stipulation (the amount of medical bills was stipulated) But appellate court found parties stipulated to the reasonableness of the (P)’s medical bills (i.e. admissiblity) and not the amount of his damages “A court will not construe a stipulation to effect admission fo something intended to be controverted or to waive a right not plainly agreed to be relinquished”
b)	Stipulation to reasonable fees must satidsfy two elements:
(1)	reasonable in county
(2)	reasonably necessary
c)	U.S. Fire Insurance Co. v Carter- To be effective a stipulation must possess the essential chariteristics of a binding agreement. 
(1)	A stipulation will be limited in effect to what is imported by its terms, and a conditional stipulation will not support a judgment where there is no showing that the condition has been complied with.
4.	Rule 11 dictates that no agreement “touching any suit pending will be enforced, unless it be in writing, signed and filed with the papers of the court as part of the record, or unless it be made in open court and entered of record.
a)	Exception:  An agreement affecting a deposition upon oral examination is enforceable if the agreement is recorded in the deposition transscript. 
G.	Cross-examination
1.	 Keene Corp-Establishes wide latitude in cross in Texas.  
a)	Here, we have wide open cross exam (you can ask about anything that is relevant to the case (including credibility)--not limited to the scope of the direct
2.	Federal is limited cross-examination to scope of direct
3.	Texas-is not, allows cross to cover “any matter relevcant to the case, including credibility”

4.	Piggybacking- can prove things through opponent’s witness that weren’t addressed on direct
5.	Hitchhiking- can introduce documents through opponent’s witness

A party can not impeach a witness on collateral or immaterial matter
tough to tell what this rule means (the rules don’t really help much on where to draw the line)
Wigimore- if the matter, while not relevant itself, is relevant to the subject of his testimony, then you can iumpeach him on it
Ratliff-doesn’t really know what the hell that means
If the impeachment is bad enough (i.e. shows that this guy is an un-credible witness) it will be admitted

H.	Leading Questions-T.R.C.E. 611(c)
1.	Rule- you are allowed to ask leading questions when cross-examining your opponent’s witness
a)	BUT-no case has ever been reversed b/c the trial judge refused to allow leading questions (BUT maybe reversible in appropriate situations)
(1)	However, the judge may be reversed if he DOES allow a party to ask leading questions to his own witness
2.	the trial judge can limit leading questions when they determine witness friendly to advocate (i.e. cross examination of a party by his own counsel after the party was called by the opponent)

Gab Business v. Moore-(254)-only way leading questions are permitted is on cross

I.	Adverse and Hostile Witnesses-T.R.C.E. 611
1.	Adverse detemination should be made before calling them.  Hostile witnesses are usually not identifiable until they’ve been on the stand awhile.  What’s the effect?=You are permitted to lead them (which is powerful tool)
2.	Adverse Witness-by virtue of status
a)	either an opposing party or identified with one under TRCE 611
b)	yuo can say up front “I call X as an adverse witness”
3.	Hostile Witness-identified by his demeanor on the stand
a)	can’t identify as hostile up front
b)	after witness gives you a hard time, turn to the judge and say “I ask that this witness be declared a hostile witness”
c)	Adverse of Hostile Witness-you can ask leading Questions

You are allowed today to impeach any witness (even non-hostile and/or non-adverse) and are not bound by their testimony

4.	Longview Bank & Trust- Designation as hostile/adverse is discretionary.  Usually harmless error.
5.	Keil- the emploer in a worker’s comp. case is not adverse BUT could be deemed hostile (b/c clearly wanted to favor insurance co.)

6.	 Depositions-whose witness is this?  No matter who took the depo, the first person to read from a deposition at trial “has” that witness and cannot read leading questions from the depo transcript.

J.	Expert Witnesses
1.	Knowledge not available to the average person
2.	Texas recognizes the opportunity to voir dire the expert to illustrate that the expert is not really qualified to give oppinion=poison’s jury’s mind in advance
3.	Voir Dire examination- you can “take the witness on voir dire” to test his qualifications (competency to testify)
4.	Qualifications:
a)	lay witness (this is rarely done) 
(1)	first hand knowledge-recollection based on their own sensory impressions whether they have sufficient mental capacity to be considered reliable
b)	Expert- to test experts qualifications 
5.	If trial judge gives you an opportunity to test qualification on cross-exam, then no error
6.	Trick v. Trick-Disqualified the expert
Ratliff-this case is an aberration (this expert was really bad)--an expert is almost always qualified (attack credibility on cross)
7.	Judge will certify the witness as an expert if he has at least marginal knowledge above that of an average lay personl
8.	Abuse of discretion standard
9.	If you demonstrate on cross that an expert is unqualified (after he has already given his opinion on direct)- motion to strike that testimony
10.	Of course, counsel could raise the questions of qualifications before the expert takes the stand by using depo testimony or interrogatory answers (demonstrating inadequacy) in connection w/ a motion in limine or a motion to suppress the testimony.
K.	Evidence- Preserving Error- T.R.C.E. 103, T.R.A.P. 52
1.	Objections Generally
a)	must be timely
b)	when evidence is offered
c)	specifice ground must be stated, unless it’s obvious from the context

2.	Clark v. Trailways-
a)	Facts- party filed a motion for sanctions b/c a witness had not been listed in discovery-ct. held no sanction b/c the party didn’t object at the time of testimony (so the earlier objection was waived)
(1)	Held-to preserve error, objection must be made at the time the witness is called to testify
(2)	Like on a motion in limine no objections must be made before the witness comes to testify will preserve error on appeal
(a)	Ratliff-thinks this holding extends to any othr pretiral proceeding-any out of court ruling does not preserve error (judge should have the advantage of hearing the testimony and reconsider his earlier ruling thereafter)
Seems contradictory to TRAP 52(b) (says the opposite)
(3)	Specific grounds--In order to preserve error you must state the specific grounds for your objection
(4)	If a trial court overrules a general objection--no appeal
(5)	BUT if the trial court sustains a general objection--the exclusion fo the evidence will be upheld on appeal if it can be supported on any ground
(6)	Timliness--Objection must be timely made (before witness offered the testimony)
(a)	Exception-if the witness throuws out an answer begore you can object-object immediately and explain that you didn’t have a change to object before
(i)	Either the questions didn’t indicate that he was goint to give an objectionable answer
(ii)	Or the witness just answered so fast that you couldn’t object
3.	Preserving Error as Offeror- Bills of Exception-R52
a)	BofE is a more specific form of preservation of error- making a bill, making a record, tender of proof, offer of proof, proffer of testimony
b)	TRAP 52- contemplates 2 kinds of BofE’s:
(1)	INFORMAL-98% of all made
(a)	complaint must be embodied in the court reporter’s transcript
(b)	error was made
(c)	objection made timely and correctly
(d)	evidence is shown
(e)	judge rules incorrectly
(2)	FORMAL- only 2 reasons to use it any more
(a)	court reporter is sick or couldn’t get the testimony
(b)	Skullduggery-belief that the court reporter is fooling with the transcript
(3)	Greenstein Logan- (informal BofE)
(a)	Facts-party showed the substance of what was excluded but failed to get a rulint from the judgeafter making the Bpf E- didn’t preserve error (must give judge a second chance)
(b)	What the Bill (either kind) must show:
(i)	subdstance if what was excluded (i.e. the witness’ testimony)
(ii)	that the evidence was actually offered and excluded
(a)	Rationale-how can app.ct. decide whether judge’s exclusion changed the outcome of the case unless they can see what that evidence was that was excluded?
(c)	Is it permissible under the rules to summarize the testimony rather than presenting it in Question and Anser form (quesitoning the witness outside the presence of the jury)?
(d)	Can you cross examine on BofE?
(i)	Rules don’t say either way- Ratliff- thinks you should be allowed to cross
Lawyer must remember to make a BofE
If judge tells you to wait until lunch break, etc. to make your Bill-- it is YOUR responsibility to remember to do so!
c)	Documentary evidence-
(1)	just authenticate the document and show its relevance
 Don’t need a Q & A except to lay predicate, which was usually already done on record
then the appellate ct. (BofE stack)
NOTE-make sure this stack doesn’t go into the court room b/c if it does=mistrial

d)	4M-(Formal Bill of Exception)
(1)	Formal Bill-a way to pick up and document what happened in the trial court if there is nothing that can be used for an informal bill
(a)	A formal bill may be filed 60 days after the judgment is signed OR;
(b)	If a motion for new trial was filed, 90 days after the judgment
(2)	Facts-the party didn’t make their informal until after the jury was chatrged (too late b/c judge could no longer have included it upon reconsideration of the evidence)
(3)	NOTE-even if the judge and both parties agreed to wait to make the BofE unitl after the jury is charged, the informal BofE is to allow the judge to hear the testimonyhe is excluding and to corrct the mistake before it is too late
(4)	Held-the ct. counted the late informal bill as a Formal Bill (which can be filed after the judgment)
(5)	Ratliff-the court bailed the party out here, but don’t count on this!
(6)	Moral-easiest way to make a BofE is informal, but do it begfore the jury is charged

NOTE-if the parties cannot reach a consensus on the content of the formal bill, then the judge makes the bill
Bytander’s BofE-if you believe the judge said something happened that didn’t-get affidavits and file a bystander’s bill

e)	Preserving Error as Objector - how to make the Bill
(1)	Condra Funeral Home-if someone blurts out evidence before you can object, you don’t have to move for a mistrial to preserve error
(a)	Limine-the acts required to preserve error are not different when the objectionalbe comment violates a motiuon in limine (only difference is that the violater may be sugject to contempt)
(b)	“Unresponsive answers”-
(i)	An “unresponsive” objection is not a complete objection (just a signal to the court and jury that the witness had answered a question not asked)
(ii)	a “nonresponsive” objection simply tells the court that you didn’t object earlier b/c the question didn’t clue you into the type of evidence about to be given
(iii)	So, coulpe your “nonresponsive” objection with a substantive objection
(iv)	ex: “unresponsive & besides, hearsay”
(v)	Always include a motion to strike 
(vi)	Also always include a motion to insltruct the jury to disregard (to make sure preserve error)
(vii)	Readson- some error can be cured by instruction to disregard 
(a)	BUT failure to object will not waive error if the testimony is so bad that it is incurable
(2)	Objection on the grounds of “nonresponsiveness” should result in the exclusion of the evidence only if the objection is timely and specifically directs the trial court’s attention to why, beyond its non responsiveness, the evidence is inadmissible
(a)	NOTE-unresponsive answers to cross-examiner--if the witness is ad-libbing you can get the court to instruct the witness to answer yes or not (b/c even if his irresponsive anwers are relevant, they interfere with an orderly cross)
(i)	Ex-object to the mention of intentions during a K dispute b/c of parol evidence rule.  Overruled.  Rather than objecting to every similar question asked, just akd for a running objection
(b)	Requirements-
(i)	Must make a valid objection the first time (carefully frame the objection so that it covers everythign objrectionable) Every time the subject is left and revisited, you ahve to ojbect agian
(ii)	also object if it is introduced with a new witness; OR
(iii)	when it is mentioned in closing argument
(iv)	NOTE- b/c case law is inconsistent, you should not cross-examine on the inadmissible subject

4.	Limiting Instructions- T.R.C.E. 105
a)	Limiting instruction=way to confine the effect of the evidence that is admitted
b)	when evidence is offered, both sides have an obligation to limit it
(1)	TRCE 105a- places the burden on the party resisting the introduction of evidence to request a liminting instruciton--if he doesn’t, then the evidence is admitted for all purposes 
(2)	TRCE 105b- places the burden on the offerror--if evidence which is admissible only for a limited purpose (or against some parties but not others) is offered generally, the judge’s act in excluding it will not be error
c)	only when the proponent has offered the evidence for the appropriate limited purpose will its exclusion be grrounds for reversal
d)	If admissible only for a limited purpose:
(1)	a general objection to the evidence will not preserve error
(2)	if your objection is overruled, you must request that it will be ikffered for only the limited purpose of (whatever it is offered for)
L.	Use of Discovery at Trial
1.	Depositions-Rule 207, T.R.C.E. 801(e), T.R.C.E. 804
a)	depositions cannot be admissible against you if you weren’t present or noticed (i.e. before you were a party in the case)
b)	“I wish to limit the introduction of this dep to only parties A, B, and C-”
(1)	the jury will be instructed to ignore it as to your party (but they are toing to pay attention to it anyway)
(2)	the real reason for thelimiting instruction is to kepp that evidence from being in the record that goes to the appellate ct. (they will pay attnetion to the limiting instruction)
c)	Texas does not require a showing that the witness is unavailable before the depo testimony can be used.  (R207-1, 801(e)3).  In fact, it can even be used if witness is present
d)	Former Testimony- (non/hearsay) permits the proponent to use testimony from earlier hearings (in the same or different case) or from depositions in other cases if the opponent “or a person with similar interests” has an oppportunity and similar motive to cross-examine in the earlier proceeding.

2.	Requests for Admissions and Interrogatories
a)	Use at trial-Rule 168-2, 169-2
b)	Deemed admissions-unanswered requests for admissions are deemed to be admitted by operation of law (lawyers want to know they can rely on the admission)
(1)	Effect of admissions and interroglatory answers-admissions, whether deemed or expressly admitted, and interrogatory answers can both be used against the party answering (or failing ot answer).  They are further limited in that they can be used only in the case in which the requests are served.
c)	Use at trial-read into record in presence of jury
(1)	interrogatories and answers must b4 introduced or they have no effect
(2)	admission, have the status of judicial admissions, and are effective w/out being intrtoduced if they are on fole in the court’s papers

M.	Motion for Directed Verdict and Motion for Leave to Reopen-Rules 268 and 270
1.	Motion for directed verdict-
a)	This is the first opportunity to present “conclusive evidence” points for appeal (but it is not the last)
b)	MDV covers same ground as MSJ, JNOV, or Motion to disregard jury’s answer
c)	conclusive or no evidence points can be raised by Edlund v. Bounds-
(1)	an objection to the jury charge
(2)	a motion to disregard jury answers
(3)	a motion for JNOV
(4)	a motion for a new trial
d)	They can be reaised in a MSJ, but the judge’s denial of the MSJ does not preserve error
2.	state court v. federal court
a)	federal court-to raise a legal sufieciency pt. on appeal, you must have made a MDV
(1)	rationale-opportunity to cure
b)	state court-not so-you can raise the legal sufficiency pt. for the first time in a motion for JNOV
c)	Ratliff-Texas’ position has been highly criticized b/c it encourages sandbagging (butr in practice everyone makes a MDV anyway b/c they don’t want to risk waiting)
3.	MDV’s are rarely granted (even if you are entitled to one)
a)	reason-it short circuits the trtial
if the judge waits until after the jury’s verdict (i.e. will grant a JNOV if the jury comes out wrong)
a jury finding is more likely than a DV to stand up on appeal B/C a jury verdict was reached--if the judge’s JNOV is overturned, the app. ct. can just reinstate the jury verdict w/out remanding for a new trial

4.	Motion to Reopen (If a DV is entered against you) R270
a)	Abuse of Discretion for judge to refuse to let you reopen (to put on evidence that was left out) unless there is prejudice to the other party
(1)	If the reason to reopen in uncontrovcersial (uncontroverted) then you can movre to reopen ANYTIME before the judge signed the judgment
(2)	Reason-if uncontroverted, then the jury isn’t needed

VIII.	THE CHARGE
A.	Origins of Broad-Form Submission in Texas
1.	Old Narrow form (“separate and distinct” or granulated submission)
a)	(D)’s loved narrow form b/c there were dozens of jury issues (contributory neglignece was a bar to a recovery back then, so this increaqsed the chance that the (P) would be found negligent on one issue)
(1)	BUT it made it easier for the appellate ct. to review sufficiency of the evidence
2.	Old General Charge (Federal Cts. and many states used this)
a)	(D)’s hated the general charge
(1)	Texas had a much more distinct charge which came to be granulated into a series of highly detailed quesitons.  This led to a lot of problems b/c the jury is not supposed to knoe the effects of its answers

B.	Case law and “Broad-form” Submissions- middle groumd
1.	Federal Cts.-do something similar (special verdict)
a)	General Characteristic-A case is usually submitted (when possible) in two questions:
(1)	Liability 
(2)	Damages

2.	Texas Department of Human Services v. E,B,-Rule 277
a)	 R277-mandates broad-from submission whenever feasible
b)	Held- the charge can’t just ask the jury for a legal conclusion.  Shows us that the jury charge submits questions to the jury in broad from when that is possible.
(1)	If you are asking the jury for a legal conclusion, then there must be proper instructions that define the legal standards and necessary facts, etc.
(2)	If no instruction/definition, then the question is one of law and, therefore, is improper.
(3)	Question of Law can be converted into an appropriate jury question by giving enough instructions (i.e., properly setting out the factual elements leading to the legal conclusion)
3.	Island Recreational-(TX SCT)
a)	This is a truly terrible opinion-the TX SCT was eager to show support and encouragement for Broad Form Submissions.  Here the judge speculated to a question NOT asked!

4.	Ketch v. Kroger- (erosion of broad form)
a)	Illustration of a problem for lawyers--whether to submit as one or two questions
b)	Facts:
(1)	Slip and Fall case (tough type of case for (P) to win b/c usually there is contributory fault)
(2)	Jury charge was not broad form (followed an outdated pattern jury charge)--separate and distinct, narrow charge
(3)	Contrast w/broad form pattern jury charge:
(4)	“Did the negligence, if any, of those named below proximately cause the [occurrence][injury][occurrence or injury] in question?  Answer yes or no for each of the following: (P)          (D)         “
(5)	Held-any error for failure to submit in broad form was waived
(a)	BUT-the opinion give the clear implication that the narrow form submission was acceptable (blessed both by the narrow form that was used and the broad form above)
(6)	What happened?  the makeup of the ct. had changed since E.B. (now back to Rep./(D)-oriented Ct.) and they like granulated charges
5.	R277 is not absolute-”it mandates broad form submission “whenever feasible”
a)	ex: submitting alternative liability standards when the governing law is unsettled might be a situation where broad form submission is not feasible

C.	Instructions Rule 277, 278

1.	Acord v. General Motors- the circumstances of the case and the nature of the improper instruction determines whether the instruction constituted reversible error.
a)	Background-before this case if an instruction/charge was a correct statement of law, then it was never reversible error.  (So, in practice, defendants would crowd instructions with restatements of law from cases that were favorable to the (D)).
b)	Held-instruction was a correct statement of law, but held that it was reversible error b/c “jury need not and should not be burdened with superfluous instructions”
c)	In other words, if you add anything to the pattern jury charge, it is like to be reversible error
d)	They explicitly disapprove of any restatements of the law that are added to a pattern jury charge:
e)	 jury should not be burdened w/surplus instructions
f)	 S.Ct. explicitly approves pattern jury charges, and disapproves of any other instructions in such cases however correctly they may state the law under [402A of the Restatements 2d of Torts]
2.	Pattern Jury Charges
a)	Pattern Jury Charges are subject to attack until approved by a ct.
b)	They are a good starting point, but make sure that the charge fits the crime etc.
c)	Make sure there isn’t a Texas case questioning/disparaging the pattern jury charge you want to use
3.	Overruling of a motion in limine is not reversible error

4.	Inferential Rebuttals
a)	Definition: rebuts, by inference, something in the (P)’s case (ex. unavoidable accident-no one did it, ice caused it rather)
b)	All it does is give the (D)’s point of view in defense of (P)’s prima facie case
c)	Inferential Rebuttals are not “true defenses”
d)	Inferential Rebuttal Instructions:
(1)	unavoidable accident-forces of nature and small children distinguish by degree
(2)	sole proximate cause
(3)	new and independent cause
(4)	emergency-criticism->definition of negligence takes into account all circumstances
(5)	act of God-violence of nature
5.	Lemos v. Montez-(Inferential Rebuttals)
a)	Facts: Pattern Jury charge on the negligence issue, but the court added the options “(c) both (d) neither” along w/an instruction about unavoidable accidents
b)	Held: reversed b/c this was a jury question on “unavoidable accident” not just an instruction (that it sometimes possible that neither party was negligent)
c)	Real reason for holding: TX.S.Ct. was losing its patience b/c nobody was adopting broad form submissions 
d)	(even though the S.Ct. had said to!) 
e)	“this court’s approval and adoption of broad issue submission was not a signal to devise new or different instructions and definitions.”
f)	Ratliff-bad decision-there was no harm-no confusion here (it wouldn’t influence the jury; doesn’t even invite the conflict)

6.	Hill v. Winn Dixie-
a)	Held- you don’t get an unavoidable accident instruction unless there is evidence that something else caused the accident (i.e., forces of nature or small children)-but no harm in this case
b)	Here there is a move (by several concurring judges) to make an unavoidable accident instruction more generally available
c)	Hecht thinks an unavoidable accident instruction should be available whenever there is NO evidence that anyone was negligent
d)	Ratliff-Why do you need an unavoidable accident instruction in that event-if no evidence of a negligence, then the jury verdict will be taken away by JNOV anyway?
e)	Reason-It is acceptable that we live in a society where blame must be affixed to someone whenever something happens.
7.	The role of jury instructions:
a)	Proper instructions must correctly state the law BUT, proper only if they are necessary to enable the jury to answer the jury questions (gratuitous lectures on the law are forbidden)
b)	One the S.Ct. has approved and “standardized” instructions, it is intolerant of additions and innovations

Aside in Jury Charges
Taxability of awards-In TX we don’t tell the jury what damages awards are taxable (Ratliff-this is a good approach for 2 reasons:
If the damages are to replace income, then they should be taxed, and jury need not know about it
Pain & Suffering isn’t taxed
Limiting Instructions-Texas does not repeat limiting instructions in the charge (court is NOT required to repeat them, but probably not prohibited from doing so.)

(1)	Lone Star Gas v. Lemon- Products liability case (slight breaking away from the absolute adherence to a charge)
(a)	Held: that it was a defect to add sentence to the standard jury charge for marketing defects (b/c it was the kind of surplus instruction discouraged bu Acord), but it did not cause harm.

D.	Definitions
1.	Southwestern Bell v. John Carlo:
a)	Issue-trial court’s charge to the jury on intentional interference w/K.  The court is required to provide definitions for legal or technical terms or common terms which have a special meaning in connection w/litigation.  When the cause of action is grounded in statute, the statutory definition should be followed as closely as possible.
b)	Absence of critical instruction/definition can cause a reversal (here, “justification” was not properly defined)
c)	Judge is required to define:
d)	Legal/technical terms
e)	Common terms with a special meaning in connection with litigation
NOTE: when the Cause of Action is grounded in a statute, a statutory definition should be followed as closely as possible
f)	Location of definitions:
(1)	If it applies to more than one questions then put the definition at the beginning of the charge
(2)	If you keep repeating the definition, that my be seen as a comment on the weight of the evidence

g)	 Def.s and instructions relating to terms used more than once in the charge should appear at the beginning of the charge immediately after Rule 226(a) general instructions.  When a term appears in a single jury question, the definition should appear w/ the question.
E.	Effect of Answers-Rule 277
1.	Grieger v. Vega: the trial ct. erred in submitted the damage issue (#2) conditionally upon a “yes” finding to #1.
a)	 ROL: It is error to submit a special issue conditionally when the effect of such submission is to inform the jury as to the judgment which will be rendered as a result of the verdict.
b)	  It is not always reversible error to instruct a jury to the effect that affirmative or negative answers to certain questions would relieve them of the duty of answering certain other questions, but held that it was reversible error when the jury was informed of the result of all of its answers in a case wherein there were issues of both primary negligence and contributory negligence.
(1)	Old case decided before broad form submissions were prevalent.
(2)	Ex: Broad form submission
(a)	“Was the killing harmful? If no, then quit.”
(b)	“Damages          “
(c)	Generally: Conditional questions are improper b/c they tell the jury the effect of their answers.
(d)	Held-no harm b/c any idiot would have known that, with only two questions (liability and damages), the “No” to question 1 would mean no damages.
(e)	The jury charge is reversible error only if it would ACTUALLY inform the jury of the legal effect of their answers.
(3)	Conditioning instructions: R277 says that the court may predicate the damages question upon affirmative findings of liability
F.	Comments on the Weight
1.	Aetna Casualty: the judge may not comment directly on the weight of the evidence but shall not be objectionable on the ground that it “incidentally” does so.
2.	a comment on the weight of the evidence is any comment which:
a)	tends to nudge the jury toward a certain finding
b)	assumes as true a controverted fact
3.	 A question incorporating a conclusion on a controverted matter may be made acceptable by putting it after a conditioning instruction which does not allow the jury to reach the question until it has found that the assumption is true.
a)	ex: Q1: “whose negligence was the proximate cause of the injury (D)         , (P)         ?        Q2: “what percentage? (D)          , (P)          ?
4.	This is a comment on the weight b/c it assumes “yes” to both parties in Question 1
a)	It would be okay if question 2 used an “if any” phrase
b)	NOTE: R277 provides that the court “shall not, in its charge, comment directly on the weight of the evidence”.  Therefore, the appropriate objection is that “the charge comments directly on the weight of the evidence”

5.	Incidental comments are acceptable
a)	Rule 272:You get a reasonable time to examine the charge and present objections outside the presence of the jury-in writing or n from of court reporter (oral)
(1)	Objections must be specific
b)	WAIVER: objections must be made before the charge is read to the jury.  Later objections are waived (even in the case where all counsel and the judge agree that objections can be made after the jury retires)
6.	To preserve error you should put your objection in writing
a)	BUT-objections have to be separated from the requests most judges require a requested charge (?s and instructions) at the beginning of the trial
(1)	-then near the end of the trial-informal charge conference (to formally hash out the charge)
(2)	-Problem-objections at the informal charge conference don’t preserve error (you must object in court before the charge is read to the jury)
(3)	Ratliff-use a checklist to make sure you don’t leave out any of your objections/requests

7.	Rule 274:
a)	defect or omission has to be addressed by objection waived unless specifically included in the objection
b)	Ratliff-R274 says something contrary to several case holdings- “any defect or omission must be addressed by objection”
c)	doesn’t say objection and request
8.	Rule 276:
a)	formal way the court deals with requests
b)	written requests--if the judge refuses or modifies he should endorse the ruling on the written request
c)	if the issue is submitted in correct form and signed and endorsed by the judge (indication of ruling), then this serves as your BofE if not endorsed, then you may need a formal BofE (Greenstein)
d)	Here-party tried to use the transcript as his formal bill

G.	Preservation of Error-Rules 273-278
1.	274: failure to object to a charge before submission waives the objection
2.	Form of Complaints
a)	Lyles v. Tx. Employer’s: Under rules 273, 274, 276 and the 1st paragraph of 279, a REQUEST for submission is the method of preserving the right to complain of OMISSION of, or failure to submit an issue which is relied on by the complaining party.  OBJECTION, however, is the proper method of preserving complaint as to (1) an issue actually submitted, but claimed to be defective; or (2) failure to submit, where the ground of recovery or defense is relied on by the opposing party.  (This case is generally followed, but not universally followed).
(1)	-the party with the burden of proof on a particular issue must please, prove, and make sure that issue is in the jury charge
(2)	-General denial in the pleadings does not entitle you to a jury submission
(3)	-Any defense that you want a submission on must be in the pleadings
(4)	_BUT if the burden is not on either party, the courts are divided
(5)	EX-inferential rebuttals, failure to mitigate damages, and res ipsa loquitur
(6)	Ratliff-if you want an instruction on one of these things, then you probably should plead it
(7)	-Ratliff-this may indicate that inferential rebuttals defenses must also be in the pleadings (some cases say it is essential, some say it isn’t)
(8)	Inferential Rebuttals (only 2)
(a)	Sole Cause
(b)	Unavoidable Accident
NOTE: even if tried by consentif there is an objection to the charge by the other party, you should conform the pleadings to the issues tried by consent

3.	MISSING= REQUEST & OBJECT

4.	DEFECTIVE=OBJECT (a request is no good)

a)	-Grounds for objection must be stated specifically, in order to give the judge a chance to cure

(1)	Morris v. Holt: for preservation of error on omitted issues, you are required to object to the charge for failure to submit an issue relied upon by the opposing party.
(a)	Remember-the person with the BofP on the Q must tender it in writing (request), but the party opposing that issue can object
(b)	Held-if you are opposing the issue, you can either request or object to preserve error
(c)	The Holt opinion limits itself to an objection concerning the absence of an opponent’s issue (or findings under R279.  The request in lieu of objection works only in that limited context
(2)	Ratliff-always request the missing issues
(3)	Ratliff-you should request and object every time to be safe

5.	Wright Way Construction v. Harlingen Mall- In order to preserve error appellant must comply with TRCP R271-279.  If the error is one of omission of an instruction relied on by the requesting party three steps are required by the rules to preserve error:
a)	a proper instruction must be tendered in writing and requested prior to submission
b)	a specific objection must be made to the omission of the instruction
c)	and the court must make a ruling

6.	Jim Howe Homes, Inc. v. Rogers:-
a)	Facts-Q-1: deceptive act?; Q2: what sum to compensate? Damages question was defective - a simple broad damages Q is seldom proper without instruction to limit and guide the jury
b)	Held-for defective question on the damages-you must both object AND request opponents missing question-object or request i.e. Question on which opponent had Burden of Proof
c)	Problem-often you can’t really identify the question with one party or the other (broad form) 
d)	(EX-when negligence question includes contributory and 3rd party negligence)
e)	always object and request!

7.	Accord v. General Motors:-
a)	Facts-two objections in quick succession; after both the judge said “overruled” Was the trial court’s “overruling” applicable to both parties objecting to the charge?  Yes.  Error was not preserved.  Don’t have long string of objections, make them separately.
b)	If you make a clear objection on the record and nothing changes, it is implied overruled, and you have preserved error
c)	Never depend on that--always get a ruling
8.	Woods v. Crane:-Requested issues and instructions are to be in writing, and must be made separately
a)	“Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment”
b)	Held-you may not mix the objections with the requests
c)	Reason-facilitate the loose leaf approach to putting together the charge
d)	Ratliff- it is also a bad idea to request issues en masse- court can confuse the entire bundle if: 
e)	They are so intermingled as to be confusing one or more is improper
i.e. the chain is only as strong as the weakest link

9.	Greenstein, Logan:
a)	  objections must be specific.  They must point out distinctly the objectionable matter and point out the grounds.  The purpose of Rule 274 is to afford trial cts. an opportunity to correct errors in the charge by requiring objections both to clearly designate the error and to explain the grounds for complaint.
b)	  Rule 272: requires that the objections be made before the charge is read to the jury.  (even where all counsel and the judge agree that objections can be made after the jury has retired)
c)	  Rule 276: short cut way of preserving error

10.	Summary:
a)	Missing Instruction or Definitions= Object & Request
b)	Defect in Existing Charge= Object (req. is no good)
11.	Missing Question = Request
a)	Obj. if THEIR Q.

12.	Obfuscation

a)	Monsanto Co. v. Milam: (seeding the record w/error)
(1)	  A party can’t request a question, get included, then object to it.
(2)	  One may request a jury question and later complain that there was legally of factually insufficient evidence to support the jury finding on it.
(3)	  Rule 278: Objection: “not raised by the pleadings, not supported by the pleadings” Required that the charge by “Raised by the written pleadings and the evidence.”
(4)	This case is a warning against the use of stock or standardized objections
(5)	R274-if objection or request is so obscured by voluminous unfounded/unnecessary objections/requests, then error may be waived
(6)	Aside- the only way to preserve a factual sufficiency complaint is by MNT (won’t be preserved by objections to charge)
(7)	NOTE-you cannot object to your own submissions (i.e. you requested the questions, so you waived any error)
(8)	BUT if you have doubts about the factual sufficiency of an issue, you can request that a question go to the jury without waiving the right to a later claim that there was insufficient evidence to support a jury question.

13.	“Substantially Correct”
a)	Rule 279: requirement for requested instructions or questions.  Must make requested issues in “substantially correct form”
b)	Two Requirements:
(1)	worded so as to be in substance and in the main correct
(2)	not affirmatively incorrect
Ratliff-many cases have taken this to its logical extreme saying it means that the request must be perfect
EX: negligence and damage issues were requested without including instruction on BofP or conditioning language (b/c everyone knows that those parts were automatically included)--courts held that b/c these were missing, the request wasn’t substantially correct (perfect to that court)

c)	Placiendo v. Alled Industrial-
(1)	Held-no reversal for refusing a requested charge that is “significantly incorrect”--if the submission of the requested charge would cause “reversible error” 
(2)	Ratliff- problem after Placencio (til Payne) courts interpreted this to mean that you need a perfect instruction. 

d)	Payne- (signals a different approach by the SCT)
(1)	Facts-(P) falls into culvert and sues state for injuries.  If it is premises defect the state owes duty to licensee.  But if its a special defect, then state owes higher duty (invitee)
(2)	Issue-The jury questions on whether the (P) knew of the culvert or not
(3)	If premises defect, then state has no duty unless proves that he did not know 
(4)	If special defect, then it doesn’t matter (except maybe for comparative fault)
(5)	State requested that the court include a question to the jury on (P)’s knowledge
(6)	Defective question-not broad form and misplaced the BofP on the state (but his isn’t a fatal problem b/c can increase your own burden if you want)
Ratliff-what would a correct broad form charge have look like?
Ratliff’s attempt- “you are instructed that if the (P) knew about the hazard in Q then the state had no obligation to protect him from it.  The (P) has the burden of proving his lack of knowledge in this respect.  Therefore, if the (P) has not shown by a preponderance of the evidence that he did not know that the hazard was in his path immediately before its occurrence, then you must find that the state was not negligent.”
NOTE- even this isn’t perfect
e)	Threshold questions- may be an example of here broad form submissions are unworkable when you have a case with some predicate finding that will determine the status of a party OR on a matter which is depositive of the entire case--then it logically requires a non-broad form submission
  Hecht’s common sense notion of advising the judge=
f)	“There should be but one test for determining if a party has preserved error in a 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.”
Mazzy’s dissent- (along with his dissent in Keetch) shows persuasively that the court is treating (P)’s and (D)’s inconsistently--SCT was easier on the (D) in Payne than on the (P) in Keetch
(P) had done a better job than the state in Payne than in trying to preserve error but the court didn’t give them the same break
Aside--why didn’t they remand in Payne (they rendered judgment instead)
(P) omitted a jury issue
(D) requested the issue (could preserve it by objecting or requesting)
Majority-(D)’s request (although defective) was good enough--therefore the (D) didn’t waive the right to a jury finding (i.e. no express or deemed findings by the judge) 
Therefore-b/c (P) didn’t request the missing issue after (D) has pointed out the omission, (P) permanently waived that issue--(D) wins

Proposed changes to the rule (task force)
First try
Task force came out with a proposed solution very similar to Hecht’s language, But was not adopted
Second try
“reasonable guidance”
backs away from Placencio (perfect request)
requirement ever so slightly
i.e. if close enough for a reasonable competent judge to get a correct charge out of it, then it preserves error
Will require an objection to everything (defect or omission)--plus a request for an omission

Keetch v. Kroger-(case in which broad form doesn’t work very well)

Alaniz v. Jones- (case in which broad form doesn’t work very well) Needed to make request “separate and apart from his objections”

Supreme Court Advisory Committee Proposed Rules
Proposed Changes to the Charge Rule

H.	Omissions From the Charge-Judge-Made Findings Under Rule 279 (when element is omitted)
Rules 279 and 299
1.	Partial Submission-Texas puts a burden on both parties to police the charge
a)	Independent ground for recovery-if the (P) leaves the entire CofA out of the charge, then that claim is waived
b)	If the (P) leaves out only party of the CofA (element)
c)	If (D) objects to the omission, then he protects his right to a jury finding
(1)	i.e. court must either fix the charge or overrule the objection (in which case the (P) waives that element if he doesn’t fix it himself)
(2)	If the (D) also fails to complain about the omission, then the judge becomes a substitute fact finder (i.e. both parties waive their right to a jury finding).  One of two ways for judge:
(a)	Express finding; or 
(b)	Deemed findings (just render judgment and any missing element will be deemed to have been found in harmony with the judgment)
NOTE-still must be supported by “some evidence” just like any other fact 
finding of fact
NOTE- even if the jury found for (P) on every question that was submitted, a judge can render judgment for the (D) (and if will be deemed that the judge determined the omitted issue against the (P).

Partial Submission:
2.	Martin v. McKee-
a)	Facts- three questions submitted to the jury
b)	deceptive act PC of damages
c)	actual damages?
d)	was it knowingly done? (answer yes)
e)	Missing Element - Discretionary Damages?
f)	no question submitted to the jury on discretionary damages but judge awards some
g)	Held-reversed the discretionary damages b/c no jury question and damages were reserved for the trier of fact
h)	Dissent-”knowingly” is necessarily referable to discretionary damages (the question serves no other purpose)
(1)	therefore the issue was partially submitted--so the judge properly acted as a substitute for the trier of fact under R279
Ratliff-the dissent is clearly right in this case Ratliff-One explanation for this case--appellate courts are reluctant to let judges determine damages (but there is no good reason for this reluctance)

3.	Effect of Waiver and Objection
a)	Ramos v. Frito Lay-
(1)	Facts-manager is filling in for a missing EE and gets in a fight with a customer--CO. is sued for battery.  (P) did not submit an issue on “managerial capacity” which is necessary for an award of punitive damages
(2)	Held-b/c the judge rendered punitive damages, it is deemed the judge found the manager to be acting within his managerial capacity
b)	Question that is submitted to the jury but not answered
(1)	Rule 279 does not apply (applies only to questions not asked)
(a)	a person who is relying on the answer waives it if he doesn’t complain when the jury returns its verdict and request that the jury be sent back to answer it
(b)	if (P) objects and requests that the jury be sewnt back, but the judge refuses, then the (P) gets a new trial
(i)	Exception-improper conditioning of a Q (that causes the jury to skip over a question that should have been answered)
(ii)	Treated as if it was never included in the charge (i.e. Rule 279 applies) unless the opponent had objected to the conditioning of the question as improper

Summary
Error in the Texas Charge-The Current Approach-
If the judge submits a defective charge, (by way of defective question or instruction), proper complaint is by “objection”
If the judge fails to submit an instruction, the proper complaint has been said to be by written request, setting out a “substantially correct” definition or instruction.  Recent cases hold that both a request and an objection are required
If the judge fails to submit a jury question, the complaint must be by request in substantially correct wording, unless the question is one relied upon by the opponent, in which case either a request or an objection will suffice.  Rule 279 comes into play (deemed finding rule): Where the jury questions making up part of a claim or defense are submitted, but one or more questions critical to it are left out,, the case will take on of two turns:
There is a complaint-the judge must cure the omission by submitting the missing question or element or the complaining party can prevail on appeal b/c of the absence of a critical finding
There is no complaint-verdict accepted, jury discharged
Express finding-the judge may make an express finding providing the answer to the missing question
Deemed finding- the judge may remain silent on the missing question and render judgment, in which case he will be “deemed to have made a finding in harmony with the judgment (under these circumstances the judge becomes the alternative or “fallback” fact finder)
However, judge cannot supply missing jury ANSWERS.  He must call jury’s attention to it and retire them back to answer.  If no one notices missing answer, the party relying on it waives it and loses the claim of defense the answer would’ve supported
No deemed finding with conflicting answers-judge must send jury back

ILLUSTRATIVE DIAGRAM:

IX.	CLOSING ARGUMENT
Rule 266 and 269
1.	Siegler v. Siegler: the burden of proof on the whole case under the pleadings did not rest upon the contestants
2.	  Rule 266 and 269 are not interchangeable.  Rule 266 applies at the beginning of the case and gives the party with the burden the right to open and close the evidence and the argument.
3.	  Rule 269 is applied after the evidence is concluded.  If the (D) has the “burden of proof on the whole case” at the time of final argument, he is entitled to open and close.
4.	  Burden on the whole case included damages.  The D must have the BOP on ALL jury questions in order to assert the right to open and close final argument.
5.	  Declaratory Judgment: one who firsts requests the intervention of a court in his behalf -who asserts a right or a duty and demands a remedy-is properly required to carry the burden of proving his right to the remedy and is entitled to such tactical advantages as in here in his obligations. Each D.J. suit calls for a trial court examination as to where the burden lies as it may not always be on the party who filed.
a)	  The trial court has wide discretion in the order of arguments when there are intervenor or multiple parties, and as to the time allotted for argument.
b)	  In Tx. cts. the argument follows the charge; in federal cts., argument usually goes before the charge though the federal judge can charge the jury before the argument or after the argument or both.

6.	Southwestern Greyhound Lines, Inc. v. Dickson: The “great latitude” permitted counsel of both parties to indulge in “flights of oratory” has its limits.  An argument that disproportionately appeals to passion and prejudice through the use of excessive or inflammatory language or concepts is to be condemned under the principles of the following decisions, whether in a given case the error was or was not held justified or without prejudice.
a)	  There is no absolute rule against expressing even a highly favorable opinion of an opposing party or witness.  But the salutory right of counsel thus to speak his mind is subject to obvious limits, which excessive language may exceed--either by connoting an idea or fact without support in the record or by its very character as inflammatory.
b)	  Invited Argument: scope of reply: the right of reply to an improper argument is something similar to self-defense.  Counsel is not allowed to go beyond the necessary response and launch an independent attack.
c)	  Improper Argument Checklist:
NOTE: often it is not a single improper argument but the cumulative effect of slightly improper arguments that can cause reversal
(1)	Appeals to Passion and Prejudice
(a)	Passion-hard to define but seems to include arguments designed to inflame the jury based on matters not before the jury (i.e. blinds the jury to the facts so that they will act on emotions)
(b)	Prejudice-racial, ethnic, or regional prejudice.  This is the proper argument most likely to lead to a reversal
(i)	Prejudice includes references to a party’s corporate or “foreign” status and to disparity of wealth between parties
(Howard v. Salmon case, see below)
(2)	Outside the Record
(a)	Counsel’s comments must be based on the record (what took place in court before the jury) and inferences to be drawn therefrom
(3)	Exceptions:
(a)	 invited argument
(b)	matters of “common knowledge”
(4)	Comments about the matters outside the record that would be inadmissible if offered, are especially bad
(a)	EX-the suggestion that the (D) is covered by liability insurance
(b)	Evidence in the record, only for a limited purpose, cannot be argued generally
(5)	Telling the jury about law which is not in the court charge is a variant of “outside the record” argument
(a)	Abuse, Name Calling, Epithets
(b)	Counsel may attack the credibility of parties and witnesses
(i)	EX-you can argue that the witness’s testimony was “untrue” or that “the plaintiff doesn’t want to get well”
(ii)	BUT name calling, such as “liar, fraud, cheat” are forbidden
(6)	(Southwest Greyhound)
(a)	Golden Rule
(i)	Can’t ask juror to treat P as they’d like to be treated.
(ii)	Reason-this is often a thinly disguised appeal to sympathy
(7)	(Howard)
NOTE: “Imagine how much you would sell your leg for, that’s all the (P) is asking for”
(a)	this is not a golden rule
(b)	the proper objection would be wrong measure of damages
(8)	Attorney’s Personal Opinion (as to the truthfulness of a witness or other matter in issue is forbidden)
(a)	This is an ethical violation and improper argument
(9)	The claiming of a privilege
(a)	Exception- you can comment on the fact that (D) claimed the privilege against self-incrimination in a civil case
(10)	Personal Criticism of Opponent’s Handling of the Case
(a)	R269(e)- makes implied or excess personal criticism of opposing counsel improper conduct
(b)	Should be promptly corrected as a contempt of court 
(11)	If the evidence suggests improper conduct of opposing counsel...
(a)	not improper argument as long as it is a matter of personal intuition (it is hard to know when you are OK doing this)
(12)	Appeal to the Juror’s Self Interest (it will raise taxes!)
(13)	You cannot argue to the jury about how a given verdict will affect them personally
(14)	Telling Jurors the Effect of their Answers
(a)	BUT an atty. may tell jurors how he would like each question answered
(15)	Counsel can also point the court’s conditioning of a damages question on a finding of liability
(16)	Inherently Unfair Arguments (catch-all) EX’s:
(a)	Calling jurors by name (this is an error curable by instruction)
(b)	A spurious admission by (P)’s counsel that he couldn’t establish liability against on of two (D)’s (with whom he had secretly settled)

(17)	Unit of Time-
(a)	  Unit of Time Argument is allowed in Tx.: “What is a fair compensation, per minute, for this kind of pain?”{
(b)	Ex- “What is a fair compensation per minute for this kind of pain?  Then multiply that by her life expectancy of 50 years, b/c the Dr.s say she will have this pain for the rest of her life.”
(c)	This is not improper argument in Texas
(d)	BUT, you look out for Golden Rule arguments in this situation: “How much would YOU take per minute?

(18)	“Send a Message”
(a)	Ex- “a small verdict won’t bother this company at all, but if you hit them hard w/punitive damages, then they will take notice.”  This is NOT improper argument-one function of punies is deterrence and it is proper to suggest how much deterrence will cost
(b)	BUT, often this argument refers to the “big guys in New York” vs. “us little guys”-this is objectionable on the grounds that it incites regional prejudice

(19)	Hang the Jury
(a)	Can you object to this argument: “If you are with us, stick to your guns.  I would rather have a hung jury and try this case over again, then get less than $100,000.”  This has been upheld in the past...
(b)	BUT it seems awfully close to asking the juror to ignore his duty to conciliate and deliberate with other jurors to reach a consensus

(20)	Common Knowledge
(a)	It is OK to make arguments that are outside the record if they are based on common knowledge
(b)	BUT common knowledge varies from one jurisdiction to the other

d)	Improper Inferences
(1)	No unfavorable inference may be drawn from the following:
(a)	The claiming of a privilege (except for the privilege of self incrimination)
(i)	What is the objection?- “outside the record”
(ii)	(assuming that the privileges were claimed outside the presence of the jury)-
(iii)	also prohibited by the Rules of Evidence
(2)	Opposing Attorney’s legitimate objections
(3)	The failure of law enforcement officials to initiate criminal prosecution
(4)	The failure to call witnesses or produce evidence
(a)	B/C either party could call the witness, it is clearly improper to draw an unreasonable inference unless the witness is so clearly related to the other party that their absence probably means that they would have testified for you.
(i)	This depends on the party’s relationship to the witness
(5)	EXAMPLES of where it is OK to comment 
(a)	-your opponent’s close friend
(b)	-witness who was opponent’s employee at the time of the event (even if no longer an employee at the time of trial)
(c)	-(P)’s failure to call his Dr.

e)	R176a- (D)’s right to have his MD examine the (P) 
(1)	No inference can be drawn from the fact that the (D) does not exercise this right (i.e., can’t say that the MD would have shown the (P)’s injuries were for real)
(2)	Analogously-an argument about (D) counsel’s failure to examine physical evidence is improper BUT may be invited argument (which is then OK)
f)	Invited Argument
(1)	Like self defense, you can reply to an improper argument with an improper argument of your own.  BUT counsel is not allowed to go beyond the necessary response and launch an independent attack
g)	Discretionary-
(1)	This is all visceral/discretionary-the one rule about closing arguments is that there are no rules that you can really rely on
(2)	i.e., even if the argument is improper, no one knows whether it will be held reversible
7.	Objections Generally-
a)	R269-The judge is not required to wait until an objection is made if he spots an improper argument
b)	R269-to object, stand and wait for the judge to acknowledge you (he may not allow you to object on frivolous grounds).
c)	It is bad advocacy to interrupt your opponent’s opening argument
8.	Preservation of Error for Improper But Curable Argument-
a)	NOTE-If the argument is thought by the appellate court to have been curable, then the error is waived if no objection was made to the trial judge
9.	He has the burden to prove:
a)	-error (improper argument)
b)	-that was not invited or provoked
10.	Ratliff- thinks the person who made the improper argument should have to prove that it was invited
a)	-that error was preserved through 
b)	objection AND
c)	motion to instruct OR
d)	motion for mistrial
e)	-not cured by instruction, etc.
f)	-harmful

11.	Incurable Error-
(1)	An argument that is so bad that,, once made, the judge cannot cure by instruction to disregard, etc.
(2)	-You don’t have to object (b/c even if you did the instruction wouldn’t cure it)
(3)	-Incurable argument must be raised NO LATER than motion for new trial
(4)	-How to tell if it is incurable error:
(5)	(case by case) must look at the entire record from voir dire thru closing argument
(6)	an argument that is only slightly improper BUT repeated over and over may become harmful
(7)	NOTE- it is possible for an error to be incurable BUT harmless
12.	-It is difficult to tell what will be incurable error-inconsistent standard
a)	EXAMPLES:
(1)	appeals to racial prejudice or use of epithets=incurable 
(2)	the unsupported charge of perjury
(a)	BUT on case said calling a guy a fraus was harmless and curable even though no evidence supported it

13.	Howard v. Salmon: The true test is the degree of prejudice flowing from the argument-whether the argument, considered in its proper setting, was reasonably calculated to cause such prejudicew to the opposing litigant that a withdrawal by counsel or an instruciton by the court, or both, could not eliminate the probability that it resulted in an improper verdict.
a)	  An artument’s misdirection is as bad as an appeal to passion or prejudice
b)	  Most improper argument is considered curable by instruction these days
c)	  Rule 269(g): the ct. may intervene to correct improper argument without waiting for an objection.

14.	Standard Fire Insurance Company v. Reese: Argumentative closing was neither improper nor reversibly harmful in the absence of an objection or motion that the ct. instruct the jury to disregard the argument.
15.	  In the case of an improper jury argument, the complainant must prove that :
a)	he has the burden to prove an error 
b)	that was not invited or provoked 
c)	that was preserved by the proper trial predicate, such as an objection, a motion to instruct, a motion for mistrial and
d)	was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge.
e)	The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error.  How long the argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. 
f)	 All of the evidence must be closely examined to determine (6) the argument’s probable effect on a material finding.  
g)	 Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument.  The record may show that the cause is weak, strong, or very close.  From all of these factors, the complainant must show that the probability that the verdict was grounded on the proper proceedings and evidence.
16.	  There are only rare instances of incurable harm from improper argument.
X.	 THE JURY GETS THE CASE
A.	Managing the Jury’s Deliberations
1.	Introductory Notes- The court’s management role:
a)	R281- All exhibits in evidence must go to the jury room whether or not anyone requests them to be sent
b)	R282- Bailiff is req’d to keep the jury incommunicado during deliberations
c)	R283- Bailiff is specifically forbidden to reveal the state of the deliberations
d)	R284- Each time the jury is excused, the judge reminds the jurors of their oaths re: communication with others
e)	R285- If the jurors need further guidance on the meaning of the charge, the presiding juror may communicate with the judge (both atty.s present) in open court in writing (see R286-both request for further instruction and the judge’s response must be in writing)
(1)	NOTE-any other communications they might have, may be verbal or in writing
f)	R286- If the court gives an additional charge, it may, in its discretion, permit further argument
g)	R287- Does not permit the judge to address the jurors directly in the jury room- it has been held reversible error for the judge to do so
2.	Juror Note-Taking
a)	-We don’t know is this OK (some cases say it is, some say its not)
b)	-Ratliff-TX.S.Ct. probably would say that it is discretionary with the trial court regardless, if there is no evidence that the notes affected the verdict-harmless error
c)	-R287- (the reading of the testimony)- jurors can have testimony that they can’t remember read back to them by court reported (or, in her absence, by recalling the witness)

3.	English v. American-TRCP 281 prescribes the material which may be taken into the jury room during deliberations.  The rule does not mention notes made by the jurors, but it does not prohibit the use of depositions during the deliberations.  Texas Cts. have found juror not-taking harmless when:
a)	the notes pertained to undisputed facts
b)	or where the notes were not held out to other jurors as evidence
c)	“But the use of a juror’s written notes as evidence or as authority on their face as being a true representation of a portion of the testimony in order to persuade the other jurors as to a disputed issue would seem to violate the spirit, if not the latter of Rules 281 and 287.

4.	Webster College- Texas Cts. are ambivalent about jurors’ notes.  No authority condemns it, and some say “it might be desirable in some cases” When the notes don’t affect the verdict=No Harm.  Where a juror is observed taking notes, the ct. should instruct the jury that such notes are not evidence, and that of the jury should disagree as to the testimony of any witness, the foreman may apply to the ct. and have the ct. reporter’s notes read to the jury.
a)	  Rule 287: if the jurors can’t agree about testimony, they may have the testimony in question read back to them by the ct. reporter as prescribed in R.287.

5.	Hung Juries: hung jury may be discharged and the case declared a mistrial if:
a)	Rule 289: indicates that a jury to whom a case has been submitted may be discharged when they cannot agree and the parties consent to their discharge; or when they have been kept together for such a time as to render it altogether improbable that they can agree; or when any calamity or accident may, in the opinion of the ct. require it.  (when, by sickness, or other cause, the number of jurors falls below the required number
b)	NOTE- R289 does not allow alternate jurors BUT it is OK for the parties to agree to use alternate jurors
6.	Shaw v. Greater Houston- A few general rules have emerged from the cases which have arisen:
a)	The length of time the jury is held in an effort to secure an agreement is left to the sound discretion of the trial judge
b)	On appeal that discretion is tested (a trial judge must have considerable latitude)
c)	There must be substantial evidence to suggest that it was altogether improbable that the jury would reach a verdict

7.	Review:
a)	no appeal of a declaration of mistrial (can’t put the jury back together)
b)	refusal of a mistrial-abuse of discretion review
c)	Dynamite Charges: (verdict urging charges)
(1)	discretionary with the trial judge (no absolute rule)
8.	Test for Trial Court Coercion
a)	Wording of the charge itself
(1)	-must break the charge down into its particulars and analyze each part for possible coercive statements
(2)	-potentially coercive statement will not invalidate the charge unless it retains its coercive nature when all of the circumstances are considered
(3)	The number of times that the jury has indicated that it is deadlocked
(4)	deadlocked
(5)	There is a point at which the mere lapse of time becomes coercive
b)	NOTE-the judge may, within reasonable limits, mention the following matters:
(1)	-the time and expense already spent on the case
(2)	-the number of times it has been tried
(3)	the fact that if the jury remains deadlocked, the case will have to be tried again on the same pleadings and probably the same evidence.

B.	Defective Verdicts
1.	Gaps in the Jury Verdict (missing answer to existing Q)
a)	Fleet v. Fleet-
(1)	First- decide whether it is a material omission
(a)	Material=would change the outcome of the case.  If it is not material, then the judge can ignore the gap and render judgment on the verdict
(b)	(Def’n: issues are only immaterial if their answers can be found elsewhere in the charge or if they cannot alter the effect of the verdict)
(2)	It is the (P)’s job to object to the receipt of the verdict and request is denied=error and new trial otherwise, the (P) waives the defect (and R279 does not apply to allow the judge to plug in the missing answer)
(a)	BUT (Exception)- a missing answer is not waived even though the proponent has not complained if an erroneous conditioning instruction has withheld it from the jury’s consideration (R279 applies in this case) ALSO a minority of courts have allowed the judge to fill in the gap when neither party objected to the missing answer and the jury was dismissed (on the policy that, like R279, this guards against oversight)
(b)	NOTE-that this is not the majority position but it seems like a valid policy argument
(3)	Conflicting Jury Answers
(a)	Are the answers conflicting?: -Test
(i)	Look at the whole charge without one of the 2 conflicting answers
(ii)	Then look at the whole charge without the other conflicting answer
(iii)	If there are different results, then the answers are conflicting
(iv)	-Must indulge ANY reasonable interpretation that would allow the findings not to be conflicting
(v)	-If a specific and a general finding are in conflict, then the specific findings control over the general one

2.	Lewis v. Yaggi-
a)	Facts-jury said that the (D) (and not the (P)) was negligent.  Then, in another question they said that the (D) was 70% responsible and (P) was 30%!
b)	Held- these answers are not in conflict (the finding that (D) was negligent was more specific and trumped the comparative negligence finding)
c)	Ratliff: This makes no sense, 70% looks pretty specific to me

3.	How to preserve error for conflicting findings?:
a)	If there is a gap-must object before the jury is discharges
b)	BUT here (conflicting findings) it is not so clear:
(1)	one case said that the objection could not be waived at all (raised for the first time on appeal)
(2)	one case has held that the objection can be made as late as a motion for new trial
(3)	AND another said that it has to be made before the jury is discharged

C.	Proving Jury Misconduct
Rules 327, and T.R.C.E. 606; T.R.A.P. 81(b) (harmless error); Rule 324(b)(1) (new trial)
1.	Daniels v. Melton Truck Lines- 
a)	UNLESS there was an outside influence
b)	Outside influence (def’n)
(1)	information that is injected into the jury’s deliberations by sources other than the jurors themselves
(2)	Ex-if one juror threatens the other jurors, that is not an outside influence
(3)	Mental processes of jurors
(a)	(misunderstanding about the charge, etc) is immaterial
(b)	i.e., a juror may not impeach his own verdict (say that he didn’t understand the charge)
XI.	POST-TRIAL MOTIONS
A.	Motion for Judgment and for Judgment N.O.V.
1.	Rule 301/Judgment on the Verdict:
a)	There are enough material findings in the judgment to support the verdict
b)	Does not mean that all finding must be in favor of the winning party
c)	court can ignore immaterial finding
d)	BUT the court must honor all material findings
e)	In a confusing case, both parties may think that they won (in which case both parties will file motions on the jury verdict)
f)	A judge can enter a judgment on the verdict on his own motion (no motion is necessary)
2.	MJNOV & Motion to disregard jury findings (These are really counterparts of the same thing)
a)	Motion to Disregard:
(1)	designate the finding and/or findings which the court is called upon to disregard
(2)	specify the reason why the finding(s) should be disregarded AND
(3)	contain a request that judgment be rendered on the remaining findings after the specified findings have been set aside or disregarded
b)	JNOV- in order for it to be a true JNOV, the judge must have disregarded a material finding
(1)	Otherwise, it is a judgment on the verdict.
c)	R71 (misnomer rule)-we don’t look at what you name the motion, we decide what it is based on its substance
d)	Ratliff-you should always include a motion to disregard AND a MJNOV
e)	JNOV requires a motion & a hearing:
f)	Judge has no power to enter a JNOV on his own volition
(1)	Rationale-judge is doing violence to a jury verdict (not just a question of law)
g)	JNOV is appropriate only if DV would have been proper
h)	Proper only if the evidence is in Zone 1 or Zone 5
i)	Tx. does not require an MDV as a prerequisite for an MJNOV (the Fed.Cts. do)

3.	JNOV and Judgment on the Verdict
a)	a motion for judgement on the verdict can waive your right to a JNOV if you take a consistent position OR make both motions in the alternative at the same time, then it is OK
(1)	EX of consistent position-make it clear in motion for judgment on the verdict that you think a finding is not supported by the evidence BUT is immaterial
b)	Timing
(1)	a motion for JNOV can be made after the judgment has already been signed-can be made at anytime until the trial court losses plenary jurisdiction

4.	Alternative Theories-
a)	if the verdict entitles you to a judgment and 2 or more alternative theories, you are not required to choose a theory and waive the others
b)	R301-judge is required to enter judgment that gives you the greatest remedy if the appellate court reverses that judgment, then the party may argue for recovery on his alternative theory at that point
c)	(P) is not required to raise the issue of alternative recovery until the appellate court overturns the judgment on the original theory

B.	Motion for New Trial
1.	Equitable Motion After Default Judgment
a)	NOTE- judge must dispose of MNT by a WRITTEN order (oral order to NT is null and void)
b)	Rule 324
(1)	When a motion for new trial is required to preserve error:
(2)	Zone 2 or Zone 4 complaint
(3)	a complaint on which evidence must be heard-jury misconduct, newly discovered evidence, failure to set aside a default judgment, lack of consent to an agreed judgment, or challenge to the amount of a guardian ad litem’s award
(4)	a complaint of inadequacy or excessiveness of the damages found by the jury
(5)	incurable jury argument if not otherwise ruled on by the trial court
(6)	no evidence v. insufficient evidence
(a)	EX-you think that the evidence is at Zone 1 but you’re damn sure that it is no better than Zone 2.
(b)	You move for JNOV and the judge grants it.
(c)	Rule 324(c)-you bring forward by cross point on appeal that you are entitled to a new trial if you JNOV is overturned
(7)	Ratliff-nothing in the rules says that 324(c) trumps 324(a), BUT it should!
(8)	uncertainty leads to a bizarre tactic
(a)	get a JNOV then file a MNT and hope that it is not granted (overruled by operation of law)
(b)	equitable MNT following a default judgment
(9)	it is relatively easy to set aside this type of judgment
(10)	Craddock Test (3 parts)
(a)	failure to answer was not intentional 
(b)	garden variety negligence is OK
(c)	if you failure to answer was intentional, but misinformed-OK
(11)	i.e. a mistake of law can be an excuse (BUT not in every case)
(a)	EX-response to writ of garnishment-froze accounts and submitted the funds to the court (but did not answer b/c they thought they had already complied)- this was a good excuse
(i)	EX-read but did not understand citation so he did nothing-not a good excuse
(12)	motion for new trial sets up a meritorious defense
(a)	You just need some prima facie proof
(b)	NOTE: you can ignore this factor if you were deprived of notice (DP)
(13)	(D) must show that granting the MNT will not occasion delay or otherwise work an injury to the (P).
(14)	Ratliff-to ensure the granting of MNT, you should voluntarily include in your motion:
(a)	a statement that you are willing to go to trial promptly
(b)	that you agree to pay (P)’s expenses incurred in getting the default judgment
(c)	When all 3 elements of the Craddock test are met, the trial court abuses its discretion by not granting a new trial
c)	BURDEN- once the factors are shown by the defaulter, the burden shifts to the (P) to produce evidence to the contrary
(1)	NOTE- you can contest jurisdiction by a special appearance AND alternatively file a motion to set aside the default judgment 
(2)	NOTE- like all other MNT’s, an equitable MNT must be filed within 30 days of the signing of the judgment
(a)	EXCEPTION- notice by publication (afflicted (D) has 2 years to file the motion
(3)	MNT b/c of newly discovered evidence
(a)	Requirements:
(i)	that the evidence has come to his knowledge since the trial
(ii)	that it was not for lack of due diligence
(iii)	that it is not cumulative
(a)	BUT you can’t just dismiss out of hand when evidence repeats testimony (looks cumulative but this witness will really shore up your case)
(b)	that it is material (would probably produce a different result if a new trial were granted)
2.	Timing; Preserving Error(Rule 5
a)	almost anything that has a deadline in the trial court can be extended by trial order
(1)	EXCEPTION- new trials
(2)	R329(b)- motion for new trial must be made while the court has plenary jurisdiction (30 days from the signing of the judgment)
(a)	judicial split- some judges say that once a MNT is filed within the 30 day limit, the court can gibe leave to file an amended MNT after the 30 day limit.  BUT some say you must always file the MNT and amendment within 30 days BUT it is clear that, without leave, you cannot file a MNT after 30 days from the date the judgment was signed
(b)	once a MNT is filed, the deadline for the judge (plenary jurisdiction) is extended until the 75th day from the signing of the judgment
(c)	you can file a meritless MNT (just to extend the judge’s plenary power to 75 days)
(d)	BUT if you withdraw your MNT, then the courts jurisdiction shrinks back to 30 days
(3)	R306(c)- MNT is not void if filed prematurely (it just kicks into effect- is dated-when it is time for it to be filed)
(4)	the overruling of an MNT extends plenary jurisdiction another 30 days
(5)	if the judge fails to rule on the MNT within 75 days, then the motion is overruled by operation of law
b)	so.. you have a potential of 105 days at most from the time the judgment is signed
c)	if the MNT is granted, judicial split:
(1)	some say that the judge has up to 75 days from the date the judgment was singed to reconsider other cases hold that the judge has an extra 30 days (up to a total of 105)

3.	Trial Court Authority Rules 315, 320, 326
a)	Trial courts have almost absolute autonomy in granting new trials
b)	Reviewable only by mandamus and only in 2 circumstances:
(1)	when the trial court’s order is void for lack of jurisdiction (i.e., plenary jurisdiction)
(2)	when the trial court erroneously concludes that there is a material conflict in the jury findings
c)	BUT mandamus is proper only if the erroneous material conflict in the jury finding was the SOLE reason for granting the new trial
d)	Trial court can grant a new trial on its own motion
e)	no MNT is required
f)	ALSO judge can grant a new trial for any reason (even a wrong reason) OR for no reason at all
(1)	EXCEPTION- erroneous finding of conflicting jury answers
g)	Some Restrictions Apply
(1)	partial new trials- can’t separate contested liability and damages questions
(2)	R326- only 2 new trials if they are based solely on factual sufficiency of course, if it is not based solely on factual sufficiency (which is usually the case), then there is no limit

4.	Remitter (review of damages awards)
a)	Coercive Effect
b)	judge has almost absolute power to grant a new trial, so if he thinks that the damages are too high he can “suggest” a remitter (and if you don’t agree, he will grant a new trial)
c)	How does this work?
(1)	If the (P) refuses to the remittitur (judgment is entered on the lower sum):
(2)	If (D) does not appeal= end of story
(3)	If (D) appeals (this rejects the remitter):
(a)	-the appellate court can “suggest” a remittitur
(whether or not the trial court has done so)
(b)	-AND/OR grant a new trial
(4)	-ALSO on appeal, the (P) can argue for the original damages award on cross-point (he is not estopped by agreeing to the remittitur initially).
d)	NOTE-if there is no evidence to support a damages finding (zone 1 or zone 5), the trial court or court of appeals will render a take nothing judgment as to such unsupported damages, without resort to the remittitur process
5.	Standard of Review
a)	Factual suffienciency standard- review the verdict, not the remittitur
(1)	it is the jury award that is being reviewed, so if the damages verdict is supported by sufficient evidence (Zone 3) then the remittitur will not stand
(a)	this makes it harder to uphold a remittitur than under the old rule which considered the judge’s discretion in ordering remittitur (presumpotion of correctness in favor of the jury’s verdict NOW as opposed to in favor of the judge’s remittitur)

C.	Motions to Modivy and Nunc Pro Tunc Corresctions
1.	Motion to modify, correct or reform the judgment-R239b(g)
a)	exact same timetable as an MNT (i.e w/in 30 days, and then this motion extneds plenary juriscdiction to 75 days)
b)	a motion to modify stands apart from aMNT and the court’s denial of one does not prejuduce the other 
c)	use this motion if anything is wrong with the judgment that can be corrected BUT still be consistent with the verdict
d)	judicial (decisional) OR clerical errors
(1)	includes complaints as to scopr of relief with respect to such matters as pre-judgment interest and attorney’s fees
(2)	if motion to modify is not consistent with the verdict, them it is really a MJNOV
e)	Motion for judgment Nunc Pro Tunc (correction “now for then”)- R316
(1)	can be made at anyting after the trial court’s plenaary jurisdiction has lapsed
(2)	during the court’s plenary jurisdiciton, you use a motion to modify
(3)	used ONLY to correct clerical errors
(4)	judgment is rendered when the judge says it in court; it gets reduced to written form later
f)	if written judgment does not reflect what the judge said, then that is a clerical error
Problem- there is a big temptation to look at non-clerical (decisional errors as well BUT this is improper
g)	Whate is a clerical error and what is a decisional error?
(1)	Clerical Errors:
(a)	omission or misstatements regarding names of parties
(b)	amounts in the judgment
(c)	the date from which interest is to be calculated
(d)	miscalculations of interest
(e)	property descriptions
(2)	Judicial (decisional) errors:
(a)	an unsupported award of pre-judgment interest
(b)	a finding that (D) failed to appear (recited in a default judgment “corrected” 3 yrs. later)
D.	Motions Following Bench Trials
1.	Motion for new Trial-
a)	is not req’d in a no-jury case except to present matt4rs not alreafdy in the record
b)	Rule 289 and 299
c)	you can block the appellate court from making deemed findings
d)	(counterpart to R279 for jury trials)
e)	BUT instead of objecting to the missing jury quesiton, you request that the trial judge make a specific finding of fact
2.	Procedure and Timing:
a)	after a bench trial, the judge will render judgmnet (like a general verdict)
b)	on appeal the appellate court will uphold the judgment if it can be upheld on any legal theory that has support in the evidence
c)	the losing party can request that the trial judge make specific findings of fact and conclusions of law like a special verdict
d)	this request must be made within 20 days after the signing of the judgment
e)	the judge must comply with this request
f)	compliance must come w/in 25 days of the request
g)	if the judge fails to comply w/in 25 days, the requesting atty. has 5 days to remind the judge to so do
h)	if the atty. fails to send the reminder, then any complaitn of the judge’s failure to find is waived the Reminder Notice extends the judge’s deadline to 40 days after the original request, 
i)	Then, if the judge refuses to make findings of fact-it is presumed harmful
(1)	then, if the court makes some findings of fact but critical findingds are missing, the losing party must specifically request again) to the missing fact-finding
(2)	R299-permits deemed findings in unrequested/omitted elements as long as there is evidence to support it
j)	if the loser requests the finding (but the prevailing party doesn’t) and the judge refuses to make that finding, the the prevailor has waived that element

XII.	APPEALS
A.	What is an Appeable Judgment
1.	You can only appeal from a final judgment
a)	  A final judgment disposes of all claims and parties
b)	  Full trial on merits
(1)	judgment is presumed to be final
(2)	i.e. if judgment is rendered, there is an implied Mother Hubbard (“everything that’s not hgranted is denied”)
c)	  Summary Judgment of Default Judgment
(1)	judgment must expressly state that all parties and claims are disposed of (either explicitly or through a MH clause)
d)	  Case Holding- default judgment is not final when it ignores the issue of puitive damages
e)	  Partial SJ’s are not final and appealable (judgment starts the clock for appeal).  They can be made final if the unresolved cliams are severed and remain w/in the trial ct.

2.	Houston Health Clubs, Inc- A final judgment is one that disposes for all parties and all issues in a lawusit.  In detemringing whether a judgment is final, different presumtptions apply depending on whether the judgment follows a conventional trial on the merits or results from default or a motion for SJ.  Following conventional trial on the merits, the judgment is presumed final.  (MH is implied.  MH won’t be implied in default and SJ disposals.)

3.	Mafrige v. Ross- Denial of a MSJ is not a final judgment and therefor is not appealable (interlocutory).
4.	Also, you can never appeal a denial of a MSJ at all! (even at the end of a trial)  
a)	TWO EXCEPTIONS:
(1)	Statutory- when state officer asserts immunity, receivership, certification of class actions, 1st amendments, SJ for mediation
(2)	when denial of SJ is accompanied by granting of other party’s complete (not partial) SJ- (then both go up on appeal)

5.	  Accidental Mother Hubbard if the judgment grants more relief than requested, then the aggrieved party can appeal and get it reversed and remanded (court will sever the claims/parties on which there was no MSJ).
a)	This is an exception to the general rule that an appeal of a partial SJ will be dismissed by the appellate ct. for want of jurisdiction
b)	Problem: TRAP: when the party affected thinks this is not a final and appealable judgment, the party may not take steps to appeal the SJ w/in 30 days after signing and lose the right to appeal!
6.	Moral: When a partial SJ is granted you, watch out for MH language

B.	Attacks on Judgments
1.	Direct Attacks
a)	Conventional Appeal From Trial on the Merits the appeal must be pervected or a MNT filed w/in 30 days of the signing of the judgment in order to prevent it from becoming final

2.	Equitable Motion for New Trial Followong Default Juidgment
a)	Motion must be filed within 30 days.  Default by publication the  has 2years in which to file.
b)	However, during the two years the execution on the judgment is not suspended.
c)	Involuntary dismissal are considered final and appealable without the necessity for a motion fo rnew trial.
C.	Petition for Writ of Error T.R.A.P. 45, C.P.R.C. 51.013 and .014
1.	to the court of appeals (not the trial court)
2.	  Elements:
a)	-must be brought w/in 6 mos. after the judgment was signed
b)	- by a party to the suit
c)	- who did not participate in the actual trial (i.e.defaulting party participation in a dispositive pre-trial hearing is “participation at trial”- it disqualifies a the party from writ of error releif)
d)	-the error complained of must be “apparent from the face of the record”
(1)	“face of the record” - apparent from the papers filed w/the case (including statement of facts)
(2)	-must affirmatively show it on the record (simple absense from the record isn’t enough)
(3)	an error isn’t “on the face of the record” when it must be shown by extrinsic evidence
(a)	EX- the appellant seeks to show want of notice of the court’s intent to dismiss for want of proscution
D.	Equitable Bill of Review
1.	  Def: an independent equitable action in the trial court brought by a party to a former action seeking to set aside a judgment no longer appealahble (by any of the above methiods) or subject to a MNT
a)	Must be suffieicnt cause AND filed w/in 4 yrs. after the complainant learns or, in the exercise of due diligence would have learned, of the judgment
b)	  “sufficient cause”
c)	Necessary Elements:
(1)	- allege factually and w/particularity that the prior judgment was rendered as a result of:
(a)	fraud (extrinsic fraud)
(b)	keeps the party from getting a day in court on the Q (not just a witness lying on the witness stand, etc.)
(c)	mutual mistake or wrongful act of the opposite party, OR
(d)	official mistake unmixed with his own negligence
(2)	-must also allege with particularity sworn facts sufficient to constitute a defense; AND
(3)	-as a pre-trial matter, present prima facie proof to support the contention

2.	Collateral Attacks
a)	can be made in any district couret and at any tiem 
b)	A collaterla attack goes only at the question of jurisdiciton-attacks the judgment on the basis tha tthe trial court did not have jurisdiciton to enter it
(1)	NOTE: a bribe, etc. which DQ’s judge “ousts” the Ct. of jurisdiciton- so you can collaterally attack

E.	Limitation of Appeals; Cross-Points T.R.A.P. 40(a)4
1.	General Appeal
a)	- D wins on P’s claims but loses his crossclaim- oif the P appeals generally, then the Dcan bring up the counterclaimon cross-point
b)	-P wins but gets no attorney’s fees-if the D appeals, P can ask for attorney’s fees on cross-point
c)	- a party can keep the other party from riding his coattails by giving notice of limitation of appeal (assuming that the appellant’s issue is severable)
d)	now the other pary must file the appeal

Appellate Timetables (see book pgs. 626-627)
Timetable- No Motion for New Trial
Timetable- Motion for New Trial (or to modify)

F.	The Appeals Process
1.	 Original Jurisdiciton: Mandamus, Etc.
2.	Government Code 22.002, 22.221, 21.001; T.R.A.P. 121 mandamus “is an extraordinary remedy”
a)	you can only have a change of getting mandamus if: really clear abuse of discretion clear error of law
3.	Wittig- no mandamus to compel a court to dismiss jurisdiciton after your plea on special appearance is rejected “quo warranto” (def’n: writ filed to see under what authority a state officeial is operating) (tere are others that we are not concerned with)

4.	Specific Jurisdiction of Appellate Courts
5.	Constitutional Provisions-Supreme Court

6.	Statutory Provisions- Supreme Court Review: Petition for Writ of Error
a)	The Texas Supreme Ct. is the Ct. of last resort on whether evidence constitutes “some evidence” (znes 2,3,4), no evidence (zone 1), and conclusive evidence (zone 5).  It has no authority-absent a mistake by the C/A in applying the correct legal standard-to subdivide “some evidence” into zones 2,3, and 4.  That is the exclusive province of th4 trial cts. and the C/A’s
7.	The Jurisdiciton Role of the Motion for Rehearing (T.R.A.P. 130(b); T.R.A.P. 100(d)
a)	the overruling of a motion for rehearing in the court of appeals is a jurisdicitonal prerequisite to the S.Ct. review
b)	the motion for rehearing must contain every complaint that you wish to make in the SCT
c)	  a party has an absolute right to an additional motion for rehearing (whether he is saying anything new or not)

8.	Legal and Factual Sufficiency Review
a)	Legal Sufficiency- the SCT is the final arbiter on legal sufficiency quesitons (zone 1 & 5)
(1)	Standard of Review- (“some evidence”) look only at the evidence in light most favorable to the non-movant and indulge all inferences in favor of the non-movant
b)	Factual Sufficiency- the court of appeals must look at all of the evidence (on both sidws of the issue) and then make a visceral decision (determingin zones 2,3, or 4)
(1)	The SCT cannot decide what rules apply to factual sufficiency issues- i.e. they only patrol the line from no evidence-some evidence (line between zones 1 & 2), and the line from very strong evidence-conclusive evidence (line between zones 4&5)
9.	  Pool- held that the appellate court must itemize the evidence relevant to the issue in quesiton and clearly state why the jury’s findint is factualloy or insuficient OR is so against the GW & P of the evidence as to be namifestly unjust.  “Detail the evidence relevant to the issue in consideration and clearly state why the jury’s finding is factually insufficient or is so against the GWP of the evid. as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias.  Fdurther, these cts., in their opinions, should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.”
a)	  They don’t “find or un-find stuff” They simply review what the jury did and determines if that is consistent with the evidence.  If it isn’t=send back
b)	  This enable the SCT to determine if the proper standard was applied.  If the proper std. is not applied in making a legal determination=error of law (In Re King’s Estate).
(1)	  Ratliff- What can result is a power play by the SCT (to bully the app. ct. whem the SCT disagrees with their factual sufficiency holding)
(2)	SCT will keep remandig the case back to the appellate court for them to properly display the factual prerequisites to their decision as required by Pool
 
c)	After the SCT does this several times the appellate court will conceivably relent and change their holding: i.e., “Stymied by the constitution, the court cannot decree the result it rather plainly wants to see in this case.  To accomplish the desired end, the Court must keep reversing the judgment of the court of appeals until it reaches a result that the Court approves.  Always the ground for reversal is that the appeals court has not conducted its factual insufficiency analysis in a lawful manner, simply to coerce that ct. into changing its conclusion is to usurp the constitutional prerogative of the C/A.  Lofton v. Texas Brine Corp. “My fear that Pool would be used by this Ct. to second guess the C/A’s has been realized.  We are now swamped with requests to second guess the C/A’s that is, to make rulings on sufficiency grounds.”  Gonzalez dissent.

G.	Appellate Presentation: Points of Error, Etc.
T.R.A.P. 74; T.R.A.P. 131 (formal requirements for appeal_
1.	  Pool did away with the formal labeling requirements-if they can tell from the substance what points you are arguing, then it doesn’t matter what you labeled them
a)	  Assignments of Error- the appellant must designate the page #’s in the trial record where the error was preserved
b)	You should, for efficiency’s sake, only bring up the relevant portions of the record
(1)	BUT DANGER- if you omit a relevant portion, the appellate court must presume that the omitted portions support the judgment
(2)	EX-if the judge could have cured, then they can presume that he cured during the segment of the trial not reflected in the record before them
c)	ALSO you have to review the whole record to determine harm