THE TRIAL OF A FAMILY LAW
JURY CASE
JOHN F. NICHOLS, SR.
PATRICK W. UPTON
713-816-5090 (JN Cell)
john@nicholslaw.com
STATE BAR OF TEXAS
2014 Advanced Family Law Course
San Antonio, Texas
August 3-7, 2014
1
THE ART OF PERSUASION
2
Things That Bug Juries
Time wasters
 Legalese without explanation
 Not being able to ask questions
 Attorney bickering
 Cheaters

3
Things Juries Most Enjoy
Learning about the process
 The interaction – people watching
 Seeing people get a fair trial

4
Golden Rules of the Courtroom
Be prepared
 Be brief
 Be professional
 Be seated

5
THE PLAYERS
6
Trial Lawyer Types
Paper Shuffler
 Journeyman – works off of rote
 Natural – natural talent, little preparation
 Stone Cold Trapper – listens, learns,
studies his/her craft

7
Styles and Mannerisms
Jack Rabbit
 Turtle
 Positive
 Negative
 Jolly Golly

Magic Man
 Razzle Dazzle
 Methodical
 High Roller
 Joe College

8
Make – Up of Trial Lawyers
Big Ticket
 Small Ticket
 Older
 Affected
 Pressure

9
Characteristics of
Great Trial Lawyers



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Polished
Crafty
Entrepreneurial
Good Service
Ambitious



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Fascination With People
Self Starter
Solitary
Helper
Knows No Strangers
And above all:

his/her handshake means something
10
Do’s and Don’ts of Trial Lawyers
Sell yourself before you sell the jury
 Try the case for the right reasons
 Cut out the small talk, get down to business
 Forget about jury stereotypes
 If you get knocked down, get back up
 Show your anger, when appropriate
 Always be learning

11
Do’s and Don’ts of Trial Lawyers
You are in charge of your case
 Get, be, or feel, comfortable
 If you get hot, stay hot
 Be positive
 You can be replaced
 Give it everything you have
 Leave your work at the office or courtroom

12
Jurors
 Ethnic
Posture
 Professions, Trades or Businesses
13
Judge Types
Jurist
 Principled
 Intellectual
 Independent
 Lost
 Interrupter

14
SELLING AND
PERSUADING
15
Selling Your Case
You are a salesperson
 Every trial is selling, ABC (always be
closing)
 Every sale has 3 components

 Sellers
(you)
 Of products (client)
 To buyers (judge/jury)
16
Sales Presentations
Pre-demonstration pitch – opening
statement
 Presentation of the product (show and tell) –
present evidence
 Call for action – closing argument

17
Presentation to Jury
Decide on a story model
 Juries are story builders
 Make opening statements a road map
 Witness credibility = witness believability
 Lawyer credibility = case believability
 Anchor to your theme or story model

18
Voir Dire
Jurors want to talk, let them –
gather information
 Look for people who are materially (as
opposed to equivocally) biased against
your case
 Look for “unshakeable convictions”
 Look for “fixed opinions”

19
Body Language
Everyone communicates with nonverbal
signals
 Jurors perceive through sight (85%),
hearing (8%) and other senses (7%)
 Congruence = believability

20
Juror Buy Signals:
Non-Verbal Cues
Trial lawyer / witnesses – presenter
 Juror – sender of signal “my state of mind
is favorable to the presenter”

21
Common “Buy Signals”
Open palms
 Relaxed body posture
 Happy face
 Synchronized body movements
 Expression of positive feelings

22
Common “Lie Signals”
Changes in mood, stance, posture and
facial expression
 Finger over mouth – determine whether
witness is lying, or thinking about his/her
answer to the question
 Overstated feelings – concealment of a
more accurate presentation of mood
 Freudian slips and editing

23
Common “Lie Signals” – con't
Decrease in gestures
 Decrease in words used
 Incongruent body signals
 Decrease in eye contact
 Autonomic signals – sweating, breathing,
mouth dry

24
Believability Scale
Autonomic signals (unconscious)
 Legs and feet
 Trunk
 Hand
 Face
 Verbalizations

25
PRE-TRIAL CONFERENCE
AND MOTIONS-IN-LIMINE
26
PRE-TRIAL CONFERENCE
1. Governed by T.R.C.P. 166
2. Discretionary with the court.
3. Purpose is to consider:
1.
2.
3.
4.
5.
Pleas, motions, exceptions;
Amendment of pleadings;
Set discovery deadlines;
Determine parties contentions;
Simplification of contested issues;
27
PRE-TRIAL CONFERENCE
(con't)
6. Stipulation of fact;
7. Identify matters for court rulings;
8. Exchange witness lists and I.D. the subject matter
of their testimony;
9. I.D. expert witnesses;
10. Agree on applicable law and law questions;
11. Exchange jury charge, or fact findings and law
conclusions in non-jury cases;
12. Exchange exhibits and stipulate authenticity and
admissibility;
28
PRE-TRIAL CONFERENCE
(con't)
13. Written objections to exhibits;
14. Determine need for master/auditor;
15. Encourage settlement discussions;
16. Any other action aiding in disposition of the matter;
17. Determine compliance with local rules;
18. Rule on motions to strike for failure to state
address, phone number, and subject matter of
testimony;
19. Determine right to open and close;
20. Determine size of jury panel;
29
PRE-TRIAL CONFERENCE
(con't)
21. Determine number of preemptory challenges;
22. Determine party alignment;
23. Determine procedure for challenges for cause;
24. Determine Daubert/Robinson challenges;
25. Determine Motions-In-Limine;
26. Taking judicial notice of facts or laws; and
27. Striking jury requests.
4. Discuss Internet and Social Media use by jury.
30
PRE-TRIAL CONFERENCE
(con't)
Motions-In-Limine (Jury)
1. Ruling on motion does not, in and of itself, preserve
error;
2. Purpose is to draw attention to possible inadmissible
evidence;
3. Effect is to require bench conference before going
into challenged area or evidence;
4. Effect is also to alert the court to potential problem
areas;
5. Submit law, if possible with motion;
31
PRE-TRIAL CONFERENCE
(con't)
Motions-In-Limine (Jury)
6. Submit order with motion;
7. Subject matter of motion is limitless;
8. Denial of challenge to motion requires offer of proof
to preserve error; and
9. Sanctions for violation include, default judgment,
striking pleadings, instruction to jury.
32
VOIR DIRE
EXAMINATION
33
Voir Dire Purposes
 Two
Purposes
 Test
qualifications for challenges for
cause – material bias
 Gather information for peremptory
challenges
34
Trial Court Discretion
Discretionary – as to how voir dire is
conducted
 Right/Fair opportunity to question panel
 Bill of Exceptions/Demonstrate Abuse of
Discretion
 Offer list of questions to be asked as part
of Bill of Exceptions

35
Record
 No
record = no complaint
36
Challenge to Array (TRCP 220)
 Remarks
at empanelling
 Central jury room
37
Excusing Jurors
 Only
Judge can excuse jurors
 Not court personnel
38
Jury Shuffle (TRCP 233)
Demand before Voir Dire
 Request must be granted
 Only one shuffle per case
 Harmless error rule applies

39
Statutory Disqualifications
Not a resident of county
 Not qualified to vote or no Texas drivers
license
 Criminal history
 Blanks in forms – must question
 Literacy – must question

40
Statutory Disqualifications -- Cause
Stock holder
 Materially biased or prejudiced in favor of
or against a party or the subject matter

41
Determining Bias or Prejudice
Cortez and Hafi cases
 Matter must be pursued
 Court must have grounds to believe
material bias

42
Material Bias v. Equivocal Bias

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
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
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Material bias disqualifies
Recantation at prodding of counsel is insufficient
Equivocal bias does not disqualify
“Leaning” bias does not disqualify
An “unshakeable conviction” disqualifies
Venire member can be rehabilitated after expressing
apparent or equivocal bias
Challenges for cause on material bias do not turn on
magic words
Rehabilitative statements that a person can be “fair
and impartial” may still disqualify
43
Bias or Prejudice
Disqualifications for Cause





Having a “fixed opinion” is sufficient to justify
disqualification
Judge has no discretion once material bias or prejudice
is established
Non-belief in cause of action is sufficient to disqualify
“Concealed bias” will allow party a new trial upon
proof
Concealed bias is giving a deliberate incorrect answer
to a material question, which caused harm
44
Preserving Error on
Challenge for Cause






Demonstrate a juror should be removed for material bias
Move to strike the juror
Get a ruling from the court on a challenge for cause
Object to the court’s denial of a challenge for cause
Inform the court that you will exhaust your preemptory
challenges because of the court’s denial of your challenge
for cause
After exercising a preemptory challenge on a juror
previously challenged for cause, point out the specific
objectionable juror that you would have struck and who
now remains on the jury list
45
Proper and Improper
Questions and Comments
It is improper to require the jury to commit
to certain conclusions, verdicts or views
 Cannot advise jury of the effect of their
answers
 Cannot inquire whether a juror has been
convicted of an offense which disqualifies
the juror or whether he stands charged
with theft or any felony

46
OPENING STATEMENT
47
Opening Statement
1. Governed by T.R.C.P. 265 (a), which provides that the
purpose of an opening statement is to tell the finder-offact, judge or jury:
1) Claims made;
2) What you expect to prove; and
3) The relief sought.
2. Use concept of “Reframing.”
1) Feel – identify belief system
2) Felt – link to belief system
3) Found – build a new belief system
48
Opening Statement (con't)
3. Talk about how client’s pride or dignity has been
affected or taken.
4. Correcting injustice – justice is an ideal but injustice is
something jury can correct.
1) Point out injustice.
2) Show the rightness of your side.
3) Tell the jury they will have the privilege or
opportunity to correct the injustice.
5. Use storytelling.
1) Use .25¢ words.
49
Opening Statement (con't)
2) Use words that describe your case like: “crushed,”
“shamed,” and “mangled.”
3) Use expressions that set the theme like: arrogance
of wealth” and “prisoner in his own body.”
4) Use adages to convey a simple message like: “it’s
not what you say, it’s what you do;” “it’s my way or
the highway;” “there is no such thing as a nonworking mother.”
5) Don’t be afraid to discuss money because it is a
statutory method for correcting injustice.
50
Opening Statement (con't)
6. Test of Effectiveness of Opening Statement.
If the jury were to retire immediately after the opening
statement would they feel compelled to return a verdict for
your client.
7. Opening Statement Do’s and Don’ts:
1) Never waive opening statement;
2) Divide opening statement into two parts: liability and
damages.
3) Separate elements of damages;
4) Use demonstrative evidence;
51
Opening Statement (con't)
5) Use headlines;
6) Set forth the jury questions;
7) Describe your “solid” witnesses;
8) Re-introduce your client;
9) Never object unless you know you will be sustained;
10) Have the opening statement reported;
11) Establish your credibility;
12) Clarify your case for the jury;
13) Never criticize or ridicule venire men struck from
panel;
52
Opening Statement (con't)
14) Don’t engage in histrionics;
15) Communicate with all members of the jury;
16) Avoid legalese;
17) Establish eye contact;
18) Avoid self-deprecation;
19) Always address the court; and
20) Avoid body language reaction to opposing counsel’s
opening statement.
53
PREDICATES, FOUNDATIONS,
AND MAKING AND MEETING
OBJECTIONS
54
EVIDENCE
Keeping It In, Keeping It Out –
Preservation of Error Through
Making and Meeting Objections In
Texas Civil Law
55
Introduction
This part of the article covers the “basics” of evidence,
predicates and foundations, and preserving error in the ten
(10) phases of a case.
56
Scope of Article
The article is divided into the ten phases of a Texas civil law
case:
(1) Pre-trial hearings, motions, and
conferences;
(2) Jury selection (if applicable);
(3) Opening statements;
(4) Presentation of evidence;
(5) Motion for directed verdict;
(6) Charge conference (if applicable);
(7) Closing arguments;
(8) Receipt of verdict;
(9) Post-verdict motions; and
(10) Request for findings (non-jury).
57
Library References
The following are “must have” publications in their latest version:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Texas Objections – James Publishing;
Family Law Section Tool Kit;
Family Law Section Predicates Manual;
O’Connor’s – Texas Rules of Evidence;
O’Connor’s – Specialty Books
Judge Wenke’s – Making and Meeting Objections;
O’Connor’s Texas Civil Trials;
Steven Lubet’s Modern Trial Advocacy 3rd Edition;
and
(9) ABA’s Electronic Evidence and Discovery Handbook.
58
Texas Bar CLE References
The best deal going!
State Bar of Texas Online Library – 16,000+
articles.
$295.00 per year!!!
(subscription)
59
Documentary & Demonstrative
Evidence
The Basics.
MI A O-
Mark
Identify
Authenticate
Offer
60
Documentary & Demonstrative
Evidence
The “Evidentiary Tree” -- Overview
1. Preliminary questions – Rule 104
2. Relevance – Rule 401
3. Authenticity – Rule 901
4. Self authentication – Rule 902
5. Hearsay & exceptions – Rule 801, 803
6. Best evidence rule – Rule 1001-1008
7. Probative value vs unfair prejudice – Rule
403
61
Rule 104 – Preliminary Questions
For Admissibility
1. Qualifications to be a witness.
2. Existence of privilege.
3. Admissibility of evidence determined by the court.
4. Relevancy conditioned on fact – “connecting it up.”
62
Rule 401 - Relevance
1. Does it have the tendency to make the existence of
any fact “more or less probable?”
2. Relevance does not have to carry any particular
weight.
3. The question is: “Does it have any tendency to prove
or disprove a consequential fact in the litigation?”
63
Rule 901 - Authenticity
1.
Testimony
901(b)(1).
of
witness
with
knowledge:
Rule
2.
Comparison by the trier of fact, or by expert
witnesses, with a specimen which has been
authenticated: Rule 901(b)(3).
3.
Circumstantial proof of the evidence itself: Rule
901(b)(4).
64
Rule 901 - Authenticity
4.
5.
Public records. Rule 901(b)(1).
Evidence produced as a result of an accurate process or
system. Rule 901(b)(9).
65
Rule 902 – Self Authentication
1.
Official publications: Rule 902(5).
2.
Self authentication by inscriptions, signs, tags or labels: Rule
902(7).
3.
Authentication of regularly conducted business: Rule 902(11).
66
Rule 801 & 803– Hearsay &
Exceptions
Rule 801 – Hearsay – Electronic Evidence
1. Is an electronic writing a statement by a declarant within
the meaning of 801(a)?
2. A computer generated printout does not involve a person,
so it cannot be hearsay.
3. The “header” on a fax is not hearsay.
4. Email offered to prove that a relationship existed between
two parties to the conversation is not hearsay, it is an
“operative fact.”
67
Rule 801 & 803 – Hearsay &
Exceptions
5. E-mails between parties to a contract that define the terms
of a contract, or prove it’s content are not hearsay they are
operative facts.
6. A failure to raise a hearsay objection means that the
evidence may be considered for whatever probative value
the finder-of-fact chooses to give it.
68
Rule 801 & 803 – Hearsay &
Exceptions
Rule 803 – Hearsay Exceptions and Electronically
Stored Information.
1. Rule 803(1) – Present sense impression.
2. Rule 802(2) – Excited utterance.
3. Rule 803(3) – Then existing state of mind or condition.
4. Rule 803(6) – Business records.
69
Rule 801 & 803 – Hearsay &
Exceptions
5. Rule 803(8) – Public records.
6. Rule 803(17) – Market reports, commercial publications.
70
Rule 1001-1008 – Best Evidence Rule
1. Printout of e-mails shown to reflect the data accurately,
is an original (and not the screen).
2. The question is: Does it accurately reflect the data?
71
Rule 403 – Balance of Probative Value
With Unfair Prejudice
Electronically stored information has been found to be
unduly prejudicial:
1. when it contains offensive or highly derogatory language;
2. when there is substantial danger that a jury might mistake
computer animation for actual events;
3. when considering summary evidence; and,
4. when the court is concerned with the reliability of the
accuracy of the information.
72
Examples of Predicates for
Admissibility:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Photographs
Business records
Audios
Videos
Map
Financial information statements
Handwritten letters
Police reports
Object of clothing
73
Examples of Predicates for
Admissibility:
10.
11.
12.
13.
14.
15.
16.
Bank records
Deposition excerpts
Summaries
Expert reports
Mental health records
E-mails
Summaries of testimony
74
Be Judicious in your Objections
Don’t object unless the evidence
will hurt your case.
75
There are two (2) kinds of Evidence:
1. Direct Evidence – See, hear, touch, or smell –
lipstick on collar.
2. Circumstantial Evidence – Logical and legal
inferences from facts proved – bucket of paint on
car.
76
There are three (3) Forms of
Evidence:
1. Testimonial – Oral of written (depositions)
2. Nontestimonial Evidence:
A. Documentary – paper:
1. Business Records
2. Medical Records
3. Computer Records
4. Government Records
5. Publications
77
There are three
Evidence: (con’t)
(3)
Forms
of
B. Demonstrative – things:
(1) Clothing
(2) Charts
(3) Videos
(4) Photographs
(5) Body language
3. Electronic Evidence (Hybrid):
A. Testimonial
B. Nontestimonial
(1) Wiretaps
(2) E-Mails
(3) Videos
(4) Audiotapes
78
Predicates/Foundations:
1.
Admissions
(1) Party opponent
(2) Implied admission
(3) Judicial admission
2.
Authentication
(1) Writing
(2) Voice (telephone calls)
(3) Physical items clothing
(4) Photographs
(5) Tape recordings
79
Predicates/Foundations: (con’t)
3.
Self Authentication
(1) Public documents
(2) Certified copies
(3) Official publications
(4) Public documents
(5) Newspapers / periodicals
(6) Business records affidavit
(7) Attorneys fees affidavit
4.
Best Evidence Rule
(1) Original required (Auth Q’ed)
(2) Original not required
80
Predicates/Foundations: (con’t)
5. Character Evidence
(1) Reputation
(2) Truthful / untruthful
6. Charts/Diagrams
7. Depositions
8. Foreign Law
(1) State
(2) Country 30 day notice / translation
81
Predicates/Foundations: (con’t)
9.
Goodwill
(1) Personal
(2) Business
10. Hearsay
(1) Operative facts
(2) Hearsay exceptions
11. Impeachment (Credibility)
(1) Live Testimony
(2) Deposition
82
Predicates/Foundations: (con’t)
12. Judicial Notice
(1) Adjudicative Facts (TRE 201)
- generally known
- easily determined
- relevance
- request must be made
(2) Legislative Facts
- helps court determine legal reasoning and law
making process
(3) Law (Foreign State – TRE 202)
- motion
- copy of law attached
- fair notice to opposing party
- request must be made
83
Predicates/Foundations: (con’t)
(4) Law (Foreign Country – TRE 203)
- 30 days notice
- translation to English
(5) Law (Ordinances, Agencies, Register)
- same requirements as TRE 202
13. Shorthand Rendition
(1) TRE 611 & 1006
- court controls mode of interrogation
- use of summaries
(2) Summaries prepared by witness
(3) Witness reviewed underlying data
(4) Witness describes underlying data
(5) Summary is fair compilation of exhibits
84
Predicates/Foundations: (con’t)
14. Summaries
(1) TRE 1006
(2) Voluminous data otherwise admissible
(3) Not conveniently examined by court
(4) Underlying data available for inspection
(5) Court has discretion to relax best evidence rule
85
General Rules in the Presentation of
Evidence:
1.
Relevance
1. Does it make the evidence on a material point more
or less probable?
2. Do pleadings raise the issue?
3. Exclusion on special grounds its probative value is
out weighed by:
a. Danger of unfair prejudice
b. Confusing the issues
c. Undue delay
d. Cumulative
86
General Rules in the Presentation of
Evidence: (con’t)
2.
Illegally Obtained Evidence
Q. It is admissible or inadmissible in a civil
proceeding.
3.
Rulings on Evidence – Must have a ruling:
(1) Express; or
(2) Inferred or implied.
4.
Effect of Erroneous Ruling – no error unless a
substantial right of the party is affected.
87
General Rules in the Presentation of
Evidence: (con’t)
5.
Exclusion of Evidence
1) Make substance of excluded evidence known to
court.
2) Make offer of proof:
a. What
b. When
- Testimonial
- Documentary
- Demonstrative
6.
Mode of Interrogation of Witnesses
(1) It has reasonable control over mode and order of
interrogation of witnesses.
(2) Can avoid needless consumption of time.
(3) Protect witnesses from harassment and undue
embarrassment.
88
General Rules in the Presentation of
Evidence: (con’t)
7.
Scope of Cross-Examination
(1) Restricted
(2) Wide Open – any matter relevant to any issue in
the case, including credibility.
8.
Leading Questions
(1) Adverse witness, party
(2) Hostile witness
9.
Opinion Testimony
(1) Expert opinion
(2) Lay opinion
89
General Rules in the Presentation of
Evidence: (con’t)
10. Expert Qualifications
(1) Hard science
(2) Soft science
11. Remainder of Related Writings – When in fairness, it
should be considered contemporaneously.
12. Piggyback Objections
(1) General
(2) Specific
(3) Joinder
90
General Rules in the Presentation of
Evidence: (con’t)
13. Settlement (Objection) Negotiations
(1) “Opening the door”
(2) TRE 408
14. Criminal Prosecutions
(1) Conviction (timing)
(2) Punitive damages
15. Rules for Preservation of Error on Trial Objections
(1) You must object
(2) You must object timely, in the first instance
91
General Rules in the Presentation of
Evidence: (con’t)
16. Mode of Making Objections
(1) Written Objections
- Before trial
- During trial
(2) Oral Objections
- Running
- Repetitive
(3) Specific, not general
17. Common Objections
(1) Asked and answered
(2) Argumentative
(3) Assumes facts not in evidence
(4) Best evidence
(5) Compound
92
General Rules in the Presentation of
Evidence: (con’t)
(6) Demonstrative evidence lacks foundation
(7) Hearsay
(8) Immaterial
(9) Incompetence – no personal knowledge
(10) Judicial notice – court file
(11) Leading and suggestive
(12) Misstates former testimony
(13) Non-responsive
(14) Calls for opinion / conclusion
(15) Violates parole evidence rule
(16) Privilege
(17) Call for general narrative
(18) Refresh recollection (mind is evidence)
(19) Speculation / conjecture
93
General Rules in the Presentation of
Evidence: (con’t)
18.
Conduct of Counsel
(1) Prompting the witness
(2) Attempting to intimidate witness
(3) Side bar remarks
(4) Arguing with witness
(5) Testifying
(6) Allusive language
(7) Failure to maintain place at bar
(8) Privileged communication
(9) Assumes facts not in evidence
(10) Collateral source rule
(11) Disqualified / violation of “The Rule”
(12) Hypothetical assumes fact / not in evid.
94
THE COURT’S CHARGE
95
Purpose of the Jury Charge

The charge is the collection of questions,
definitions and instructions the court submits to
the jury to resolve the factual disputes in the
case. It is the trial court’s responsibility to
submit a proper charge. Spencer v . Eagle Star Ins.
Co., 876 S.W.2d 154, 157 (Tex. 1994)
96
Jury Charge Overview
Part 1 – covers common mistakes, library
references, recommended uses of the jury
charge, the evolutionary cycle of broad-form
submissions, current hot topic questions related
to the jury charge, and a checklist for
preservation of error
 Part 2 – covers pre-trial orders, pleadings, fair
notice in pleadings, trying issues by consent, and
the charge conference
 Part 3 – covers specific areas of objections and
appellate review

97
Part 1
98
The Nuts and Bolts
Judicial Survey of Common Mistakes
 Library References

99
The Nuts and Bolts

Recommended Uses of the Jury Charge Before and
During Trial
Prepare a draft of the Charge at the outset of the case
 Use the Charge as a roadmap for the case and evidence
development
 Keep track of the changing issues
 Use a draft of the Charge at the pre-trial conference
 Use the Charge throughout the trial
 Use the Charge in voir dire
 Use the Charge in the opening statement
 Use the Charge as a checklist
 Use the Charge in closing argument
100

The Nuts and Bolts

Evolution of the Rules Governing Jury
Submissions
 Background
History
 Proposed Rule Changes
101
The Nuts and Bolts
 Hot
Topic Questions
 When
is broad form submission not feasible
under Casteel?
 Cases
 What
concerning liability and damages.
is the latest word on instructions?
 Golden
Eagle Archery, Inc v. Ronald Jackson
 Diamond Offshore Management Co. v. Guidry
 Sunbridge Healthcare Corp. v. Penny
 Taylor v Texas Dept. of Protective and Regulatory
Services
102
The Nuts and Bolts
 How
do you preserve error and what
requires a remand versus a rendering on
charge errors under Payne?
 What is an application of the ‘whenever
feasible’ requirement?
 Hypothetical
 What
is the proper submission under the
hypothetical?
103
The Nuts and Bolts
Do grounds exist for divorce between Party A and Party B as to:
1.
2.
3.
4.
5.
6.
7.
8.
Insupportability of the marriage
between Party A and Party B
Cruel treatment by Party A
toward Party B, if any?
Cruel treatment by Party B
toward Party A, if any?
Party A’s adultery, if any?
Party B’s adultery, if any?
Party A’s abandonment of
Party B, if any?
Party B’s abandonment of
Party A, if any?
Party A and Party B living
apart, if any?
__________
__________
__________
__________
__________
__________
__________
__________
104
The Nuts and Bolts

Checklist for Preservation of Error in the
Court’s Charge
 Court’s
charge functions as the verdict
 Pleadings + evidence + verdict = judgment
 Three kinds of charges: questions, definitions,
and instructions
 Three kinds of problem charges: omitted,
defective, and unnecessary charges
 “The Test” for preservation of error in the
charge conference
105
The Nuts and Bolts
 Rules
for preserving error
 Step-by-Step analysis
 Omitted
questions [yours]
 Omitted questions [theirs]
 Omitted definitions and instructions [yours and
theirs]
 Defective and immaterial questions, definitions, and
instructions [yours and theirs]
 Objected to question
 Unobjected to question
 Limiting or exclusionary instructions
106
Part 2
107
Getting It Right



Pre-Trial Orders – Tex. R. Civ. P. 166
Pleadings – A Blueprint for the Charge –
Tex. R. Civ. P. 47, 278
Fair Notice Required in Pleadings –
Tex. R. Civ. P. 47
Test of fair notice
 Cannot be surprised, prejudiced or misled by
evidence
 Test for fatal variance

108
Getting It Right

Trial by Consent – Tex. R. Civ. P. 67
 Exceptional
cases only
 Evidentiary stage
 Charge conference
 Trial amendment
 Appellate review
109
Getting It Right

The Charge Conference

Request and Tender Stage – Rules for Requesting
Charges
 Should
be in writing
 Should separate requests from other requests
 Should separate requests from objections
 Requests should be marked, refused, signed and filed
 Must be present before submission
 Must be raised by pleading and evidence
 Must be broad for “whenever feasible”
 May submit multiple grounds within question
 Must submit ultimate/controlling questions only
110
Getting It Right
 Omitted
claims or defenses are waived
 Omitted elements of claims or defenses are deemed
found
 Definitions and instructions act only as aids to jury
 Wide discretion given on definitions and instructions
 Test for abuse of discretion on definitions and
instructions
 Presumption of average intelligence on the jury
 Must only define words of art
 Must submit charge in substantially correct form
 “En Masse” requests must not be confusing and must be
totally correct
 Must predicate all conditional requests
 Try to keep it simple
111
Getting It Right
 Objection
Stage – Rules for objecting to charges
 Must
object before submission
 Must make objections before the court
 Ruling should be apparent
 Purpose of objecting before submission – get it right
 Objections must be distinct and specific
 Test: “Was the court fully cognizant?”
 Stock objections – not good
112
Getting It Right
 Obscured
and concealed objections – no good
 Voluminous objections – no good
 Invited error – waiver
 Laundry list objections – no good
 Look at entire charge for error in submission
 Order of submission – up to the judge
113
Part 3
114
Fixing Any Errors

Specific Areas of Objections

Objections to the charge as a whole
 Charge
not signed by the judge
 Texas pattern jury charges – safest route
 Charge not filed with the clerk
 Charge not presented to counsel for inspection
 Reasonable time not given
 Charge submits a ground which is not a basis for
recovery
115
Fixing Any Errors
 Omitted
charges
 If
it is the proponent’s claim – submit
 If it is the opponent’s claim – do nothing
 All definitions and instructions, proponent or
opponent – submit
116
Fixing Any Errors

Defective questions – object
 No
pleadings
 No evidence
 Variance between pleading and proof
 Duplicative questions
 Shades and phases
 Burden of proof not placed on either party
 Burden of proof improperly placed on the wrong party
 Comment on the weight of the evidence
 Advises the jury of the effect of the answer
117
Fixing Any Errors
 Disjunctive
submission
 Not an ultimate question controlling the disposition of
the case
 Inferential rebuttal question
 Uncontroverted question
 Immaterial question
 Question permitting a double recovery
 Assumes material controverted facts
 No predication or improper predication
 Questions of law
118
Fixing Any Errors
 Defective
definitions and instructions – object
 Misstates
the law/misleads the jury
 Inclusion of instruction
 No pleadings
 Immaterial,
unnecessary or superfluous charges–
object
119
Fixing Any Errors

Appellate Review
Standard of review – abuse of discretion
 Trial court’s requirements
 Test for abuse of discretion
 Test for reversal
 Reversal: remand or rendition

120
FINAL ARGUMENT
121
Final Argument
1. Right to open and close governed by T.R.C.P. 266,
269.
1) Right belongs to the party who has the burden of
proof on the whole case.
2) Ordinarily the right resides with the plaintiff.
2. Time allocation.
1) Discretionary with court.
2) Unequal allocation is not in and of itself error.
122
Final Argument (con't)
3. Motion to fully open.
1) Burden to fully open on the whole case is
preserved by filing a motion to fully open.
2) If motion to fully open is filed closing argument is
limited to rebuttal only to reply arguments.
123