Pc Iii - The Charge

Front 1

What are the three types of charges?

Back 1

1. General Charge
2. Special Verdict Charge
3. Blended Charge

Front 2

Rule 278

TRCP 278: Submission of Questions, Definitions, and Instructions
The court shall submit the questions, instructions and definitions in the form provided by Rule 277, which are raised by the written pleadings and the evidence….

Back 2

So to get a question into the charge, you must meet a pleading burden and a production burden. If you do, the jury will get questions and make findings. Then it will be the judge’s job to make legal decisions (who wins and who loses). So the judge is under a legal duty to render a judgment on the verdict (unless he sets it aside for some reason).

Front 3

How do you get a question into the charge?

Back 3

You have to meet a pleading burden and a production burden. You have to plead the issue or fact and then you have to produce evidence of it.

Front 4

What is a general charge?

Back 4

o (1) General Charge
• = court instructs the jury on the law, contentions, claims, defenses
• “If want to find for Π, the you must find XYZ.”
• “Do you find for Π? Or Δ?”
• All that is known on appeal is that the jury wanted that party to win – don’t know what theory or coa got you there.
• Not really used in Texas

Front 5

What is a Special Verdict Charge?

Back 5

o (2) Special Verdict Charge
• Jury makes fact findings only – irrespective of who is supposed to win
• Make the factual elements of a claim in questions
• Two forms – difference is how specific the questions are
• Broad form
• Granulated form

Front 6

What is a blended charge?

Back 6

o (3) Blended Charge
• General verdict + special verdict on same thing
• Federal rules allow
• Not Texas

Front 7

Process of Creating Charge and Preserving Error

Back 7

1. Pre-trial Requested submissions
(This is not preservation of error at this point)

2. Charge conference = between the evidence closes and the jury charge
(No one is objecting or complaining formally, just working it out)

3. Judge decides on charge – attys get copies

4. Final draft of charge – second sentence of 272

5. Formal charge conference – preservation of error
(1) object to something in charge
(2) request – basically, if there is something that you think should be in there, file a requested submission and present the document to the court

6. Judge will grant/deny all of that

7. Court reads charge

Front 8

What happens at the formal chare conference?

Back 8

At that point, it becomes more formal. You will review the final charge and make objections on the record. An objection to the charge is never sustained. Why? Because if the judge agrees that something is wrong, he’ll change it! At that point, all parties will go back into court room and the jury will be charged.

Front 9

TRCP 300: Court to Render Judgment

Back 9

Court has a duty to render judgement on the verdict.

Front 10

STRUCTURE OF THE CHARGE

What are the components of the charge?

Back 10

Questions
Instructions and
Definitions

Front 11

Questions

Back 11

Called questions in Texas. [Formerly called special issues in Texas. Don’t be confused]. Called interrogatories in federal court. Questions are supposed to present controlling issues in the case (which can mean different things – more later)

Front 12

Instructions

Back 12

• Instructions
Some instruction are boilerplate and come from TRCP 226a. (i.e. “Don’t let bias, prejudice, or sympathy affect your decisions.”) Other instructions are intermingled with questions. (i.e. “You can consider when deciding damages” or “If you’ve answered yes to subpart 1, answer the following question” )

Front 13

Definitions

Back 13

• Definitions
If there’s a definition provided by law, the charge will provide it (i.e. definition of design defect). By using a definition, we’ve simplified the question.

Front 14

What is the difference between federal chafes and state charges?

Back 14

Note: You find generally the same thing in federal court. Difference – In federal court, there’s a CHARGE and a separate VERDICT FORM. The charge is much longer and more detailed.

Front 15

What form do the questions take? Broad or separate and distinct (granulated)?

Back 15

TRCP 277: Submission to the Jury
In all jury cases the court shall, WHENEVER FEASIBLE, submit the cause upon broad-form questions. The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict.

Front 16

What does a broadform question include?

Back 16

It includes all the elements which are not questions of law. Damages questions will always be seperate.

See example

Front 17

What is a granulated submission?

Back 17

Texas courts used to use granulated submissions. In a granulated submission, you would separate theories and then separate elements under each theory.

Front 18

What are the ways to submit a cause of action in broad-form?

Back 18

Two ways to submit a cause of action in broad-form:
• “Was the negligence, if any, of defendant a proximate cause of occurrence in question?”
• “Should the mother be named possessory conservator of the child?” [instructions with all elements]

Front 19

How do we submit theories in broad-form?

Back 19

• There are two ways to get the theories into the charge:
o Instructions that lists the theories the jury can decide

o Put the theories into the question

Front 20

Hypo: Assume the question is: “Was the negligence, if any, of defendant a proximate cause of occurrence in question?” How do we make sure that jurors answer this question based on theories that have been pleaded and proved? Can we incorporate all three theories into one question?

Back 20

You have to list the relevant acts or omissions raised by both the pleadings and the evidence in the question itself and give instructions.

Front 21

Can we submit different causes of action in the same question?

Hypo: Powell defames Einhorn and then punches him. Einhorn sues Powell for defamation and battery. Can they be submitted in the same question?

Back 21

No. The only case where you can do this is where the elements of the two causes of action are essentially the same. [Hyundai – design defect and breach of warranty in crashworthiness cases]. So the general rule is no.

Front 22

When don’t we submit broad form?

Back 22

When it’s not “feasible.” When is that?.......

Front 23

When is it not feasible to submit a question in broad form?

Back 23

When the submission of a broadform question (1) probably caused the renidtion of an improper judgement or (2) probably prevented the appelland from properly presenting the case to the court of appeals. This is reversible error (TRAP 44.1)

Front 24

Hypo: Parental termination case. Parent went off and left her child in someone else’s care for one year. She gave no support to the child during that time. Child was sexually abused while parent was gone. State has two theories for termination. One theory is submitted incorrectly in the charge (omits an essential element). Parent objects, but the court overrules the objection. Jury answers YES to the ultimate termination question. Parent appeals, arguing reversible error. Is it?

Back 24

To get a ruling overturned for reversible error, a plaintiff must show:

1. That there was error
2. That her objection was preserved
3. That the error was harmful.

Here, the theroy was submitted incorrectly (error), the plaintiff made an objection (preservation), BUT how are we to know whether she was harmed? We can't tell so under TRAP 44.1 it is reversible error. The court will presume error.

Front 25

When is broadform not feasible and therefore error under TRAP 44.1?

Back 25

1. When a valid theory is submitted with an invalid theory (theories may be invalid for something like not having standing under a statute, etc.) Casteel (invalid theories under DTPA)

2. When a legally sufficient theory is submitted with a legally insufficient theory. Harris Co. (damages)

3. When there are two liability questions ( ex. negligence and maliciousness) and one approtionment question. Romero.

Front 26

Boradform is not feasible when:

Situation One

Back 26

When a valid theory is submitted with an invalid theory.

Casteel - 5 of 13 theories were improperly submitted because plaintiff didn’t have standing under the DTPA. Because they were submitted in one broad-form question, the court of appeals couldn’t tell which ground(s) jury relied on.

Court said: When a trial court submits a single broad-form liability question incorporating multiple theories of liability, the error is harmful and a new trial is required when the appellate court cannot determine whether the jury based its verdict on an improperly submitted invalid theory. Thus, this case should be reversed and remanded.

Front 27

What if you have two theories, but you’re unsure about the legal implications of one of them. What should you do?

Back 27

Submit them in two different questions, so that if jury finds for you on the viable theory, the verdict is airtight (assuming the opponent has objected to your iffy theory).

Even if you do this, don’t submit them in a super-granulated way. There is a middle ground! In other words, don’t submit every element separately. Just submit the theories separately.

Front 28

Hypo: 10 jurors think parental rights should be terminated – 5 based on one theory, and 5 based on the other. Both are submitted properly. TRCP 292 says that same 10 jurors must answer yes to all necessary questions. What result?

Back 28

If the two theories had been split up into granulated questions, the jury would be required to answer “no” to both because only 5 concurred on each.

Front 29

Does it change when we combine both theories into a broad form question?

Back 29

E.B. v. Tex. Dep’t of Human Services says we must focus on the controlling issue in the case – which is whether to terminate, not which theory is correct. If 10 jurors agree to terminate, TRCP 292 is satisfied. If this were not the rule, broad-form submission would be essentially destroyed. You would be able to submit elements broadly, but you would not be able to submit theories broadly.

Front 30

When is broadform not feasible?

Situation 2

Back 30

Broad form submission is not feasible when submission would commingle a legally sufficient theory with a legally insufficient theory (i.e. there is no evidence on one theory).

Question 3: When determining Lynn Smith’s damages, if any, the court can consider:
1. Physical pain and mental anguish
2. Loss of earning capacity
3. Physical impairment
4. Medical care

Question 4: When determining Erica Smith’s damages, if any, the court can consider:
1. Physical pain and mental anguish
2. Physical impairment
3. Medical care

Harris County objected to each of these issues, claiming that there was no evidence presented as to: (1) Lynn’s “loss of earning capacity;” and (2) Erica’s “physical impairment.”

Court said: This is just like Casteel. The charge mixed valid and invalid elements of damages in a single broad form submission. So we’re going to presume harm.


Lesson: If it’s a close case, and you’re not sure whether there’s some evidence, submit separate questions for each damage element.

Front 31

Another example of situation 2

• Ex: Car wreck case. 3 theories of neg: brakes, speed, lookout. There is factually insufficient ev to support brakes. Jury answers yes. Harm?

Back 31

Harm is presumend under TRAP becuase a legally insufficient theory was comingled with a legally sufficient thery.

Front 32

How do you object to the submission of this question?

Back 32

“Ob to the submission of brake theory in broad form. It’s commingling factually insufficient and factually sufficient . . . for reason we would be prevented from showing harm on appeal, so broad form isn’t feasible under 277.” (Powell’s words)

Front 33

A broadform submission is not feasible when:

Situation three

Back 33

you have to ask a seperate question for percentages of causation if there were two different theories plead.

Romero:

Question 1 was whether colombia was negligent. Question 2 was whether they were malicious. Jury answered yes to both questions. Question 3, the apportionment question asked: What % of the conduct that caused the occurrence or injury do you find to be attributable to each of those found by you, in your answer to Q1 and/or Q2 to have caused the occurrence of the injury?” The jury found Columbia 40% responsible.

This case is slightly different from Harris Co. Issue: How do we know how much of the 40% was attributable to negligence question which was answere yes and how much was attributable to malicious credentialing question which was answered yes.?

We can't so it's presumed harmful error under trap.

Front 34

What about factual insufficiency? Does it present the same problem?

Back 34

Recall – you can only make a factual sufficiency argument after the verdict. So, it’s not a basis to refuse to submit a question to the jury. It there’s legally sufficient evidence, the judge must submit the question.

Front 35

Hypo: Two theories. Legally sufficient evidence on both. Factually sufficient evidence on only one. Jury answers yes to the broad-form question. Loser argues that there was factually insufficient evidence of one theory (in a motion for new trial). Is this the same as Casteel and Harris Co. ?

Back 35

In Casteel and Harris Co., the error was the erroneous submission of the question. There were two solutions (see above). Is it possible for the judge to fix anything when ruling on the motion for new trial? No! The questions have already been submitted, and at that time, there was no error.

And yet, when we get up on appeal, we’re in the same position. What to do? The opponent should have objected to broad form – “It’s not feasible, because although there’s legally sufficient evidence to support Theory #1, there’s factually insufficient evidence to support Theory #1. If we submit broad form, I won’t be able to complain on appeal.”

Front 36

Situations where TRAP comes in and error is reversible because:

a. probably caused the rendition of an improper judgment; or
b. probably prevented the appellant from properly presenting the case to the court of appeals.

Back 36

1. When a single broad form liability question incorporates multiple theories of recovery, some valid and some invalid (Casteel)

2. applies to invalid elements of damages in broad-form damage question (EB)

3. applies when there is no evidence (legally insufficient) of the theory of recovery/element of damages

4. applies when element of damages/theory was not pleaded, but was in the charge

5. applies when there is factually insuff. evidence of the element of damages/theory
i. Here, judge can't avoid the potential error b/c he is required to submit the question to the jury; but still, discerning harm is still impossible
ii. In this case, b/c there's no other error to object to in order to preserve error, must object that it's not feasible to submit broad form. (this is the objection shit)

6. applies where there are multiple causes of action, some unsupported by evidence, and only a single proportionate liability question (Romero)
i. e.g. Negligence and malicious credentialing, jury says yes to both, assigns one % of liability, but appellate court says no evidence of malicious credentialing.
ii. To fix the error? Don't ask 2nd question.
iii. To fix the harm? Two questions, or one question w/ two blanks
1. e.g. "% of liability b/c of the negligence, if any, of X? ___%"

Front 37

How do you preserve error in order to claim preusmed harm?

Back 37

Two ways to object in this situation:
1. Objection to erroneous submission of a question (substantive - this is error because it..)
2. Objecting to broad form submission because it was not feasible (form - i will not be able to complain on appeal)

Front 38

What objections must you make to preserve error and take advantage of the presumed error rule?

Back 38

If there is an error in the submission of a question you can object to the submission of a question in that it:

1. Defective Submission - an element is left out, etc (the way it's worded)

2. A question is posed about a theory in which there is legall insufficient evidence (Harris)

3. There is error in the charge in that a question asks about an unplead theroy.

For these three errors, you must object to error in the charge and you may object to the submission of the question in broadform under 277.

4. Facutal Insufficiency - for a factual insufficiency error (when the charge asks a question about a theory in which there is factualy insufficient evidence) you must object to the submission of the question in broadform when there is no charge error because the court is obligated to submit all legally sufficient q's to the jury. Under Rule 277.

????

Front 39

is it necessary to object to the submission of a question in Texas?

Back 39

You don't have to object for preservation of error purposes as long as you raise the error sometime before the final judgement, for example in a motion jnov.

Front 40

What is an inferential rebuttal

Back 40

a defense that rebuts essential element of Π’s case by proof of other facts.

Front 41

What part of the charge is an inferrential rebuttal?

Back 41

It's is an instruction that modifies a question. (a question is not right because it would seem to pu the burden of persuasion on the defendant when the plaintiff has it)

Front 42

What happens if a judge submits a question granulated when it was feasible for it to be submitted broadform?

Back 42

. The court separated out the slip and fall elements and conditioned each answer on the previous one. (“If you answer yes to question 1, move to question 2”).

The trial judge should not have submitted this separately and distinctly because it was feasible to submit it broad form. But Keetch didn’t preserve error, so there’s no argument on appeal.

Was the erroe harmful?

H.E. Butt Grocery Co. v. Warner
Warner slipped in an 8-inch puddle of water. She sued HEB for her injuries. She submitted a broad-form premises liability question to the court, but it was rejected in favor of granulated questions.

This case is virtually identical to Keetch. Plaintiff requested broad form, and judge refused. This constituted error, but not harmful error – because the burden of proof was correct and elements were correct.

Lesson: Because judges know they won’t get reversed for submitting a correct, granulated charge, they usually tend toward that course of action.

Front 43

Back to Inferrential Rebuttal

How is it like/dislike an affirmative defense?

Back 43

An affirmative defense takes all of the plaintiff's allegations as true, while an inferrential rebuttal rebutts an element of the COA with proof of other facts.

Front 44

What are the burdens with regard to an inferrential rebuttal and an affrimative defense?

Back 44

Burden of Pleading
--Afirmative Defesne Must be pled (TRCP 94)
(Look at the list)
--For IR General denial is okay
Or could be more specifically pled

Burden of Proof
--Δ has burden to secure finding on AD
--Burden Stays on the Π in an inferrential rebuttal

Front 45

What are the six inferrential rebuttal instructions?

Back 45

• The 6
o Act of God PJC 3.5
o Sole Proximate Cause PJC 3.2
o New and Independent Cause PJC 3.1
o Unavoidable Accident PJC 3.4
o Emergency PJC 3.3
o Independent Contractor

Front 46

What happens if there is an incorrect inferrential rebuttal instruction given? Is there presumed harm?

Back 46

No.Casteel doesn’t apply to IRD. i.e. no presumption of harm if incorrect IRD instruction

Front 47

Where does an inferrential rubuttal instruction usually go?

Back 47

These will typically go right after the instruction re: proximate cause

Front 48

TRCP 277 says we can’t use inferential rebuttal questions. What does this mean?

Back 48

It means that the judge can’t place an inferential rebuttal issue in a question. He must place it in an instruction or definition.

Front 49

To get the inferential rebuttal instruction, what must I do?

Back 49

1. Raise it by the evidence
2. Can be plead or can also be raised by a general denial.

Front 50

DISJUNCTIVE QUESTIONS

When may a court submitt a question disjunctively?

Back 50

The court may submit a question disjunctively when it is apparent that one of the conditions or facts necessarily exists.


other examples: • Hurt before or after? Who breached: ∏ or ∆
What is a disjumctive question? A question that makes you pick A or B and doesn't allow you to pick both.

NOT: “A or B? (Y/N) _____” but rather “A or B? (A/B) _____” – only one is true, but one of them definitely is true.

Front 51

How are questions submitted to the jury in order to properly place the burden of proof?

Hypo: The question is – “Is Ms. Ward substantially able to provide food, clothing, or shelter for herself, to care for her own physical health, or to manage her own financial affairs?” Is this a proper question?

Back 51

No. It places the burden of proof on the wrong party. In a guardianship case, the applicant bears the burden to show that the ward is unable to do all of those things.

Front 52

So how should the question be phrased?

Back 52

So you must phrase each question so that a “yes” answer will be in favor of the party with the burden of proof.

Front 53

Hypo: The question is – “Was the negligence of defendant a proximate cause of the occurrence in question?” Is this a proper question?

Back 53

No. This is a comment on the weight of the evidence, as it assumes that the defendant was negligent.
The Fix: “Was the negligence, if any, proximate cause of the occurrence in question?”

Note that Sometimes, omission of the words “if any” isn’t harmful (if it’s an unimportant issue, an uncontested issue, etc.). Here, it wasn’t reversible.

Front 54

• When to choose broad form/ granulated:

Back 54

• If some damages are not recoverable for certain coa → BF isn’t appropriate
• If separate courses of conduct lead to separate coa → submit coa separately
o Submit the damages q separately too
• Fin Code § 304.1045 – Future damage
o No prejudgment interest assessed or recovered on award of future damages
• Tex. Fam. Code § 3.001
o Recovery for personal injuries sustained by spouse during marriage, except any recover for loss of earning capacity during marriage
o Is the separate ppty of the spouse.
o So need to submit as separate questions.
• TCPRC § 18.091(b)
o If any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, the court shall instruct the jury as to whether any recovery for compensatory damages sought by the claimant is subject to federal or state income taxes.

Front 55

What elements should never be granulated?

Back 55

Elements of the same cause of action. Should always be feasible. Object that the submission of the questions in granulated form is a violation of Rule 277 that causes should be submitted broad form.

Front 56

What happens if something should be granulated by statute?

ex.

• Fin Code § 304.1045 – Future damage
o No prejudgment interest assessed or recovered on award of future damages
• Tex. Fam. Code § 3.001
o Recovery for personal injuries sustained by spouse during marriage, except any recover for loss of earning capacity during marriage
o Is the separate ppty of the spouse.
o So need to submit as separate questions.
• TCPRC § 18.091(b)
o If any claimant seeks recovery for loss of earnings, loss of earning capacity, loss of contributions of a pecuniary value, or loss of inheritance, the court shall instruct the jury as to whether any recovery for compensatory damages sought by the claimant is subject to federal or state income taxes.
• TCPRC § 41.0105
o In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.

Back 56

• Preservation
o “Object to broadform submission b/c not feasible to submit b/c commingles __________ in violation of code provision ________”
• Harm is NOT presumed!!

Front 57

In order for a definition or instruction to get into the charge they must be:

Back 57

1. rzbly necessary to enable the jury to render a proper verdict;
2. proper statements of the law;
3. raised by both the pleadings and the evidence.

Front 58

The difference between a definition and an instruction.

What is an instruction?

Back 58

• Instructions = statement by the court about something the jury should know
• boiler plate instructions 226a
• instructions that relate to the case
o conditioning question/ coupler – “If you answered 1, go to 2, if not you’re done”
o instructions on questions – like damages don’t compensate twice

Front 59

What is a definition?

Back 59

• Definitions = given when a charge includes a term of art
• May be attached to the question to which they relate

Front 60

What are the potential objections to Instructions and definitions?

Back 60

• Misstates the law 277
o statutory coa requires statutory I/D
• Unnecessary and doesn’t assist the jury in answering the question 277
• Comment on the weight of the evidence 277
• Advises jury of effect of answers 277
• Not supported by the pleadings 278
• Not supported by the evidence 278
• Improper BOP
• Put BOP on the wrong party or fail to the burden on either party

Front 61

When is a definition reasonably necessary?

Back 61

When it is a term or art and the legal definition is different from its ordinary meaning.

Front 62

When we examine whether the burden of proof is submitted properly to the jury what kinds of errors are we looking for?

Back 62

There are three kinds of errors:

1. Errors that flip the burden of proof (Question should be worded so that a YES answer is in favor of the party with the burden of proof.

2. Failure to give the proprer buden of persuasion.

3. Burden of proof is not even in the charge. Slipped through the cracks.

Front 63

• Burden of Proof
• The BOP may be in question or in instruction PJC 1.3

Back 63

Instruction:

o Answer “Yes” or “No” to all questions unless otherwise instructed. A “Yes” answer must be based on a preponderance of the evidence unless you are otherwise instructed. If you do not find that a preponderance of the evidence supports a “Yes” answer, then answer “No.” The term “preponderance of the evidence” means the greater weight and degree of credible evidence admitted in this case. Whenever a question requires an answer other than “Yes” or “No,” your answer must be based on a preponderance of the evidence unless you are otherwise instructed.

Front 64

Conditional Instructions:

• TRCP 277 3rd ¶ last sentence
o The court may predicate the damage question or questions upon affirmative findings of liability.

Back 64

• HEB v. Bilatto revisited
o JI: If Π 50% or less negligence, answer $ Q, otherwise don’t.
o TX SC said that the JI was okay

Front 65

DAMAGE ISSUES:

R. 277: “The court may predicate the damage question or questions upon affirmative findings of liability.”

What does that look like?

Back 65

If you answer ‘Yes’ to question 2, answer question 3. Otherwise, do not answer question 3.”

Under Bilotto, even though the conditioned damages question seems to advise the jury of the effect of their answers (if they don't fill in a blank, P gest nothing) it is only incidental and the rule says that is ok.

Front 66

How can damages be submitted and what do they look like?

Back 66

iii. Three Forms:
1. Broad Form: just one line to put the total amount of damages on (the preference is for broad form of hybrid)
2. Separate/Granulated: one question for each type of damages sought (e.g. past mental anguish, lost wages, etc.)
3. Hybrid: One broad form question with multiple lines that explain (define/instruct) each element of damages and have a blank for the jury to select the amount of damages attributable to that damage type (preferred)

Front 67

When is it not feasible to submit damages in broad form?

Back 67

1. Multiple causes of action that each support different types of damages;

One broad form damages question, which instructs jury to consider some elements that are only applicable to one of the causes of action, and that cause of action was answered “No”;

We don’t know how much of the damages was attributable to the damages element that is not supported by liability for the appropriate cause of action
a. Result = reversal
b. Fix = separate out elements of damages and put a single line for each (or separate/granulated questions)
i. That way the appellate court can just excise the particular line if they find it unsupported.
ii. Or TC could ignore the amount entered on that line b/c it was rendered immaterial.

Front 68

In short, when is it not feasible to submit a broadform damages question?

Back 68

2. In short: It’s not feasible to submit elements of damages that can only be awarded under one of multiple independent causes of action in the same broad form damages question.
3. If all elements of damages for all causes of action overlap, you can submit them all in broad form.
a. (e.g. negligence and negligence per se for the same conduct)

Front 69

Example of an error in submitting damages question in Broad form - see 3M case.

Back 69

Plaintiff suedfor BOK and for Bad faith. Jury answers yes to BOK but no to BF.

Damage question says how much money? in weighing damages you may consider ABCD, but ABC are common elements to BOK and BF butnot C. Therefore you cannot submit the question this wasy. you should either granulate or hybrid with a line next to each.

Front 70

How can a damages question fail to explaing the precise measure of legal damages?

Back 70

By just asking how much money and not telling them what they can consider.

Front 71

Other instances where it is not feasible to submit damages together in broad form:

Back 71

Seperate Impacts - If separate and distinct impacts, it’s not feasible to submit as a single damage question (even if they share the same elements of damages – it happened twice pursuant to the multiple impacts)

5. Not feasible to submit future damages with past damages, b/c you can’t get prejudgment interest on future damages
6. Not feasible to submit loss of earning capacity & physical injury damages for married person, b/c part is community property and part is separate property.
7. Not feasible to submit elements of damages that would be subject to taxation with elements that would not, as jury is required to be instructed on whether they would be taxed, and calculation would be impossible anyway.
8. Not feasible to submit medical expenses which still must be reduced due to CP&RC § 41.0105 w/ anything else.

Front 72

But, if you fail to object at the time the not feasible broadform question is submitted do you preserve error?

Back 72

9. BUT: Not a Casteel, presumed-harm situation; must object.
a. Proper objection: it’s not feasible
b. Must specify why it’s not feasible.
c. e.g. “question commingles past & future lost earnings, part of which is subject to pre-judgment interest.”

Front 73

What if there are two different cuases of action with same damage elements?

Back 73

Plaintiff may submit the damage elements twice but will have to choose which ones he wants to recover (election of remedies).

Front 74

EXEMPLARY DAMAGES Charge Implications

What is required to be able to award exemplary damages?

Back 74

a. Except as provided by (c), exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2) malice; or (3) gross negligence.

Front 75

What else complicates the award of exemplary damages?

Back 75

d. Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages.

In all cases where the issue of exemplary damages is submitted to the jury, the following instruction shall be included in the charge of the court: “You are instructed that, in order for you to find exemplary damages, your answer to the question regarding the amount of such damages must be unanimous.”

Front 76

What does unanimity require?

Back 76

Unanimity: generally, a 10-2 verdict can support a judgment, but not for punitive damages.

i. The predicate civil wrong – must have 12 “Yes” votes to justify punitive damages
ii. The punitive liability – must have 12 “Yes” votes to award punitive damages
iii. The amount of punitives – must unanimously find the amount of punitive damages.

Front 77

What does not have to be found unanimously?

Back 77

d. What does not need to be unanimous?
i. The amount of actual damages
ii. A vote of “no” can be based on 10 or more votes, only “yes” needs unanimity.

Front 78

How to Know if it’s Been Unanimous:

Back 78

i. Generally, the presiding juror certifies unanimity wrt any question that requires unanimity
ii. If non-unanimous, each person agreeing certifies the verdict
iii. If different standards apply to different questions, the judge decides how to proceed.
1. Can have different certificates for each question, or for each part of the charge.
2. Lots of flexibility.

Front 79

What does the clear and convincing standard apply to and what does it not apply to?

Back 79

3. Burden of Proof = C&C:
a. (b) specifies that C&C standard applies to elements of exemplary damages as provided in this section
i. (including statutory authorization for exemplary damages)
b. “The one thing that doesn’t require C&C evidence is amount” – so, don’t need to support amount of punitive award by C&C evidence. It’s a normative assessment, not provable by evidence, really.

The way it works is that only question 3 is submitted on C+C.

Front 80

How many punitive damages questions?

Back 80

4. CP&RC § 41.006: Punitive damages are specific to the defendant, and specific to a plaintiff. Thus, if there are 2 πs and 2 Δs, there would be 4 punitive damages questions.

P1 vs D1; P1 vs D2

P2 vs D1; P2 vs. D2

Front 81

What is the proper way to draft an exemplary damages question?

Back 81

Q1: Neg+Prox Cause (U not required)
Q2: Compensatory Damages (U not required)

CI: if unanimous to 1 then go to 3
Q3: Gross Negligence (by C+C)
I: must be unanimous in finding gross negligence

CI: if yest to 3 then go to 4
Q4: amount of Exemplary Damages
I: Instuction on amount being unanimous

Front 82

Must a jury be unanimous in order to vote No on exemplary damages?

Back 82

No. Unanimity is only required for an affirmative finding.

Front 83

If punitive damages are awarded by statute, then how is the burden for exemlary damages satisfied?

Back 83

“The claimant must prove by cce the elements of the exemplary damages as provided by this §. This BOP may not be shifted to the Δ or satisfied by evidence of ordinary neg, bad faith, or a DTP.”

Front 84

Exemplary damages Cap

Back 84

o TCPRC § 14.008(b) “Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of:
• 2(economic) + noneconomic up to 750K
• or $200,000.”
o (a) “In an action in which a claimant seeks recovery of damages, the trier of fact shall determine the amount of economic damages separately from the amount of other compensatory damages”
o Issue – Does (a) apply only in exemplary damages cases or must economic and noneconomic loss always be separate?
• Powell says that 41 applies to all damages (in leg hist, they removed the word “exemplary” from the title of chapter 41. This is probably the way you should go with this issue.
o (e) Jury isn’t told about the cap

Front 85

How must you submit economic and non-economic damages when you are seeking punitives?

Back 85

In all cases, must submit economic and non-economic damages separately – never feasible to do them broad form.

Seperate answer line for econ and non-econ.

Noneconomic damages are damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.

Economic damages means compensatory damages for pecuniary loss.

Front 86

BIFURCATED TRIALS

Back 86

o Submission
• Only Δ can move to bifurcate
• Same jury – separate hearing
• After the underlying claim and extra liability Q

Front 87

How do we bifurcate in Texas?

Back 87

• Tex – how we bifurcate
• (1) liability and actual damages
• (2) amount of exemplary damages

Front 88

What evidence is allowed to calculate the amoung to exemplary damages?

Back 88

• Net worth and a whole bunch of othe shit.
• Watch out for Ford Motor Co. case
• Don’t admit the wrong! Never apologize for conduct or failures. That’s a judicial admission and it’s admissible in every future Ford Explorer case – forever!

Front 89

Defects in the Charge

COMMENT ON THE WEIGHT OF THE EVIDENCE

So what is a comment on the weight of the evidence?

Back 89

It’s when the judge assumes the truth of a material controverted fact or exaggerates, minimizes, or withdraws some pertinent evidence from the jury’s consideration.

Front 90

example of improper comment:

Back 90

“Was the negligence of defendant a proximate cause of the occurrence in question?”
a. Assumes negligence; has the effect of commenting on the weight of the evidence, and is thus erroneous.
b. To fix, can insert “if any” after “negligence,” or make the entire question conditional on liability finding

3. Apparently, if the comment is in a question, such that the jury would read it as indicating how the judge feels about the question, it is improper. However, if it’s in a necessary instruction, it’s “incidental” and not objectionable.

Front 91

In a state court charge it is not proper to put judicial facts in the charge.

Back 91

a. Judicially noticed facts cannot be used to comment on the weight of the evidence. And, they can’t be used to “notice” disputed facts—that, too, is a comment.
b. Also, an excessive number of judicially-noticed facts that don’t help the jury answer the questions in the charge can act as an improper comment on the weight of the evidence, particularly if they all seem to be in favor of one party.

Front 92

Helpfulness:

Back 92

Instructions in the charge should be helpful and relevant, not just correct.
a. If instructions are not helpful, it is erroneous to include them. That tends to be characterized as a comment on the weight of the evidence if it “tends to tilt or nudge the jury” toward one party or the other.

Front 93

Ways we have learned that you can comment on the weight of the evidence:

Back 93

1. Question submitted that was not properly predictated to an affirmative answer to the preceeding questions. (If you have found...or if any)

2. Putting judicially noticed facts in charge (in state, OK in fed) or judicially noticing disputed facts in the charge.

3. Putting factfindings in the charge

4. Waivering from accepted PJC definitions by adding sentences that tilt or nudge a jury.

Front 94

What is deffenent in federal court?

Back 94

Federal Judge has more broad discretion to comment but can't take it too far.

Front 95

Informing the jury of the effect of their answers:

Back 95

Conditional Instructions only incidentally inform the jury of the effect of their answers.

So – you can’t say, “The plaintiff won’t recover if you find him more than 50% negligent.”
But—you can say, “You must find us 51% liable in order to answer damages.”

Front 96

Questions of Law

Back 96

Do not submit pure questions of law.

Remember with broadform, questions look like questions of law. But when you look questions in light of conditions and instructions, it is a fact question.

Front 97

ex.

Knutson v. Ropson
. The trial court submitted a special issue to the jury asking whether the contract had been discharged by Knutson’s acceptance of the checks. The jury answered the special issue affirmatively.

Back 97

Court said: The special issue in this case inquires as to the effect of acceptance of the checks upon the contract liability of the defendants, which is a question of law. Questions of law are not decided by the jury—so it is improper to submit them.

Front 98

In its charge to the jury, the trial court submitted the following ownership issue: “At the time of the time of the incident in question, did HUDSON BUICK PONTIAC GMC own the 1981 Cadillac automobile driven by DONALD SHIRLEY?” The jury answered “yes.”

Back 98

Court said: Ownership of the vehicle at the time of the accident is a question of law—it should not have been submitted to the jury.

Front 99

How must you submit questions that seem to be questions of law?

Back 99

Be careful saying you can’t submit questions of law to the jury at all. The purpose of the charge is to allow the jury to apply the law to facts and get a result. We often submit mixed questions of law and fact to the jury. As long as you provide the jury with all legal definitions and legal standards, you can ask them ultimate questions—i.e., should the parental rights of X be terminated.

Front 100

PRESERVATION OF ERROR

What are the two mechanisms for preserving error?

Back 100

1. Two Mechanisms for Preservation:
a. Objection: sufficiently specific to inform the judge of the error (“misstates the law” is not enough)
b. Request: In writing; “In substantially correct wording;” copied to opposing counsel.

Front 101

What is the differene between an error of omission and an Error of Commission?

Back 101

a. Simple Examples:
i. Question improperly places the burden of proof – commission
ii. “Did the negligence of X proximately cause . . .” – commission (even though technically we ‘omitted’ the words “, if any,” the question is affirmatively wrong).
iii. Questions are granulated when they should be broad-form, or vice versa – commission
iv. Question is worded improperly – commission
v. Entire absence of instruction – omission
vi. Negligence question w/o definitions of legal terms of art – omission

b. If something is there, but it is affirmatively wrong, it’s an error of commission.

Front 102

Informal vs. Formal charge conference

Back 102

The informal charge conference is a discussion between the attorneys that happens after all of the evidence is in. The judge is making decisions about what is going to be in the charge. There is no preservation of error in the informal charge conference.

The formal charge conference is on the record (not necessarily in open court). As a practical matter, requests and objections will not be granted at the formal charge conference becasue if the judge agreed he would have put them in the charge during the informal charge conference.

Front 103

Preservation By the Rules:

Back 103

a. Rule 274 – deals with Objections. Party objecting must point out distinctly the objectionable material and the grounds for objection. They must be sufficiently specific to let the judge know what you’re asking for.
b. Rule 273 – Either party may present/request written questions, definitions, & instructions
c. Rule 278 – Failure to submit a question . . .
i. “Failure to submit a question shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment;
ii. provided, however, that objection to such failure shall suffice in such respect if the question is one relied upon by the opposing party.
iii. Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.”

Front 104

WHAT DOES IT ALL MEAN?!

Back 104

Ask, Error of Commission or Omission? If Error of Commission – Object, else . . .

If error of Omission, ask is it a Question, Definition, or Instruction? If Definition or Instruction – Request, else . .

If it is a question, ask Who has the burden of proof? If You do – Request, else . . .

If it's a qustion in which the opposing party has the burdenof proof, Do either one. (Generally you object, b/c it’s easier to screw up the request)

Front 105

Why not do both?

Back 105

1. First, it ain’t right.
2. Second, Rule 274 says you waive your complaint if the appellate court thinks you’ve made “unfounded objections or unnecessary requests” – using the wrong one will be unnecessary, so it might waive the correct one!

Front 106

Why object to a question that the other party would rely on?

Back 106

i. B/c failure to object waives the error
ii. You waive the right to a jury trial on the issue

Front 107

What does payne say?

Back 107

a. In Payne, the State objected that a charge commented on the weight of the evidence. It also made a request – but the request was totally wrong. This was an error of commission, but not having to do with comments on the weight of the evidence. But they said that the request somehow clarified what the objection was really about and preserved the error.

b. The court seemed to re-write the preservation scheme and demand only that the litigant “make the trial court aware of the complaint, timely and plainly, and obtain a ruling.”
i. Very subjective standard “must make the court rzbly aware of the complaint.”
ii. Courts seem to only follow it when it helps them reach the outcome they want to reach.

Front 108

What Happens if No One Objects to an Omission:

Back 108

a. You waive your right to a jury trial on the issue – it’ll either be tried to the bench or deemed.
b. See Rule 279 section, below.

Front 109

REQUESTS

Error is waived if not madei substantially correct wording.

So what is substantially correct wording?

Back 109

A request must be in substance and in the main, correct and is NOT AFFIRMATIVELY INCORRECT.

Front 110

Notice alone is not enough for a request

Back 110

i. Notice alone is not enough – must help guide the judge
ii. If you’re using a statutory cause of action, must track the language of the statute

Front 111

When is a request affirmatively incorrect?

Back 111

1. Granulated when the rules say broad form
2. Flips the burden of proof
3. Comments on the weight of the evidence
4. Failing to track applicable statutory language
5. Omitting foreseeability from a proximate cause instruction

Front 112

What are the elements of a proper request?

Back 112

• Elements
• Written
• Copy other counsel within a reasonable time after charge is given
• Present to court written QDI
• Either party may present to the court and request written questions, definitions, and instructions to be given to the jury;
• Substantially correct wording
• Separate and apart from objections

Front 113

• What does “Substantially Correct Wording” mean?

Back 113

• Three possibilities:
• 1. perfect
• 2. something in between ← according to Placencio, it’s this
• 3. not perfect, but put TC on notice of what complaint is (Payne approach)

Front 114

What does it mean to request something seperate and apart from Objections?

Back 114

• Made after court gives the parties the charge
• When is it too late to make the request?
o probably when read to jury, but there is no TRCP about it

Front 115

Getting a Ruling

You always object on the record, and the ruling can be oral; what about requests?

Back 115

Rule 276 – The judge shall endorse your request “refused” or “modified as follows . . .”

The endorsement constitutes a bill of exception and creates a presumption that all steps were taken to properly preserve the error.

d. Tender the request; leave a blank w/ options “given,” “refused,” “modified as follows . . .”; voila
e. If Judge refuses to endorse, all is not lost! Can use any other proof necessary to show that the request was made and ruled upon. e.g. formal bill of exception

Front 116

Be carefu with en masse requests? What is an en masse request? Why is it dangerous?

Back 116

An en masse request is requesting a bunch of stuff with only one "refused" line.

Everything must be in substantially correct wording – if anything is wrong, can be refused en masse

Front 117

When an instruction is given but something is left out of it, is it an error of comission or an error of omission?

Back 117

Omission of a part of an instuction is a defect in that particular instruction. It is an error of comission.

Front 118

Back to requests

if you make an objection and therefore we request,...

Back 118

you waive both the objection and the request.

Front 119

Ommission or commission hypos

Hypo: Question: “Is Mrs. Ward substantially able to provide food, clothing, shelter for herself, to care for herself, and to manager her financial affairs?”

Back 119

This question misplaces the burden of proof. There is a question, but it’s defective. This is an error of commission. Object.

Front 120

Hypo: Potential Casteel problem. Question was submitted broad form, but should have been submitted disjunctively.

Back 120

The question is there, it is just incorrect. This is also an error of commission. Object.

Front 121

Hypo: Your complaint is that the question was submitted disjunctively but should be submitted broad form.

Back 121

Commission Object

Front 122

Hypo: No conditioning instruction is present, and one is required, i.e. only answer question 2 if you answer yes to question 1.

Back 122

This is an error of omission. Go to the next question…

Front 123

Hypo: Question contains a legal term, but that term is not defined in the charge.

Back 123

This is an error of omission.

Front 124

Hypo: Parental termination case. For the parent-child relationship to be terminated, it must be proven by clear and convincing evidence that: (1) certain statutory grounds are met; and (2) termination is in the child’s best interest.

The question is submitted in broad form (should the relationship be terminated?).

What if the jury is not instructed as to (1) or (2)?

Back 124

What if the jury is not instructed as to (1) or (2)?
Error of omission. Go on…

Front 125

What if the jury is instructed as to both (1) and (2), but the instruction is wrong?

Back 125

Error of commission. Object.

Front 126

What if the instruction includes (1) but not (2)?

Back 126

Argument 1: Omission—there is no defect in anything that is actually in the charge. The problem is that one essential element of the claim is missing.

Argument 2: Commission—the statute requires you to prove both elements, and without the best interests prong, the entire instruction is wrong.

Note: Powell thinks Argument 2 is probably correct. Courts have generally treated it this way. It would be a different matter if there were no instruction at all.

Front 127

There was an issue as to whether the plaintiff failed to mitigate damages. In determining damages, the court instructed the jury that they could take into consideration certain element of damage, and no others. The instruction did not exclude from the jury’s consideration damages that were proximately caused by the plaintiff’s failure to mitigate damages. Defendant was entitled to have such damages excluded. Defendant objected.

Back 127

Court said: The jury was instructed as to what they could consider; but not as to what they couldn’t consider. This omission made the entire question wrong. Thus, it was an error of commission, and an objection was sufficient to preserve error.

Front 128

Obscuring requests

Back 128

If the appellate court believes you’ve obscured or concealed your request in numerous unnecessary requests or objections, it is waived. Rule 274.
i. A request is unnecessary if you already got what you’re requesting
ii. It’s unnecessary if it’s a request when you must object; or an objection when you must request
iii. It’s unnecessary if it’s frivolous (probably)

Front 129

What is a cluster?

Back 129

A series of related Qs often must be requested as a “cluster” (en masse) or it’s not substantially correct.

ALSO

d. A broad form question must be proffered w/ the proper instructs/defs to be substantially correct.
i. Except you need not request instructions that you don’t think are appropriate and that benefit the other side.

Front 130

Misclaneous Dangers

Back 130

a. Specify where in the charge you want the instruct/def. If it might be ambiguous, specify why you want it
i. (e.g. If you want ordinary negligence instruction to inform the jury how it differs from gross negligence, instruction won’t be allowed if the judge thinks it’s associated with some ordinary negligence claim that you lost on directed verdict)

Front 131

Shit in corpus

Back 131

b. The Corpus Christi court of appeals thinks you must both object and request to preserve charge error.
i. But really, the second sentence in Rule 274 (which the court relied on to make this rule) applies to pleading errors: “Any complaint . . . on account of defect [in the pleadings], omissions [from the pleadings], or fault in the pleadings, is waived unless specifically included in the objections.”

Front 132

What does it mean for something to become the law of the case?

Back 132

c. Law of the Case: If something erroneous is submitted to the jury and no one objects, it becomes the law of the case. The appellate court will review the legal & factual sufficiency in light of what was submitted.

Front 133

Obscuring

Back 133

if you put one valid objection in the midst of a bunch of crap objections you are obscuring the objection and it will not preserve error.

Front 134

What if you are not given a reasonable time to review the charge?

Back 134

2. Manner: Charge to be submitted to the parties w/ a rzbl time to read it & present objections prior to it being read to the jury. Read the whole thing—don’t assume everything is correct.
a. If the court doesn’t give rzbl time to read it, object
i. Grounds = not reasonable time to read it
ii. Harm = error in the charge at the end that I would have caught if given rzbl time to read and present objections; but, to be reversible harmful, there must be error in the charge.
b. Further, if there is error in the charge and you didn’t object/request, make a bill of exception as soon as the error comes to your attention. Recite on the record how much time you had, what the error was, how you would have found it if given more time.

Front 135

BUT - what about an objection to legal sufficiency (no evidence)?

Back 135

• Powell suggests to OB to NE on everything in every Q!!
• It’s not obscuring b/c TXSC said it wasn’t (Arkoma).

Front 136

Objections must be made en masse?

Back 136

3. En Masse: Objections must be en masse – state every objection you have to the court’s charge. The judge will overrule them all at once. That’s normal.
a. All objections not so presented shall be deemed waived.
b. Exceptions:
i. Rule 279 – “claim that evidence was legally or factually insufficient to warrant submission of any question may be made for the first time after the verdict.”
ii. w/ Factual insufficiency, can’t ever ask the judge not to submit the question; he must submit it, and then the judge can remedy factual insufficiency with a new trial

Front 137

When can a no evidence objection to an error in the charge be made?

Back 137

iii. No evidence error can be made by JNOV w/o prior preservation
1. EXCEPT: Casteel situation, where one no evidence theory is co-mingled. when you must object in charge conference
a. If there is no evidence of one theory of recovery or one element of damages, must object that it is not feasible to submit them broad form for that reason.

Front 138

OBJECTIONS

When must an objection be made?

Back 138

1. Timing: must be made and ruled upon before the charge is read to the jury

2. Manner: Charge to be submitted to the parties w/ a rzbl time to read it & present objections prior to it being read to the jury. Read the whole thing—don’t assume everything is correct.
a. If the court doesn’t give rzbl time to read it, object

Front 139

Objections must be made En Masse:

Back 139

Objections must be en masse – state every objection you have to the court’s charge. The judge will overrule them all at once. That’s normal.
a. All objections not so presented shall be deemed waived.

Front 140

6. Rule 274 – Obscuring Waiver:

Back 140

a. A litany of boilerplate objections to every question sends up a red flag that you’re either intentionally or ignorantly obscuring the true objection. In such cases, the judge can waive all objections in the clump.
b. However, a single objection made to every single question/instruct/def, unfounded as to some, but potentially good as to others? (e.g. a no evidence objection to every single element)?
c. Well, “generally, a no evidence objection to a jury issue is sufficient to preserve such issue,” but “stock objections may not always preserve error.”
i. When the issue is broad form w/ multiple theories and/or elements inside, you must be specific as to which theory/element has no evidence.
ii. When the issue is granulated, “no evidence” is sufficient.
iii. Powell Recommends objecting to every single element of every issue on “No evidence” grounds – it’s not a 274/obscuring waiver problem. Could allow you to preserve and reflect on your argument later.

Front 141

RULE 279 omission from the charge and their effect

What happens when an entire ground of recovery is ommitted from the charge?

Back 141

1. Upon appeal,
2. all INDEPENDANT GROUNDS of recovery or of defense
a. not conclusively established under the evidence and
b. NO ELEMENT IS SUBMITTED OR REQUESTED.
i. (If they submit the Q, or make a request therefore, this won’t apply)
3. ARE WAIVED.
a. (so don’t object if the other guy is missing a whole ground of recovery or defense!)

Front 142

What happens when part but not all of a ground of recovery is ommitted in the charge?

Back 142

If a ground of recovery consists of more than one element and at least one element necessary to sustain such ground of recovery or defense and

NECESSARILY REFERRABLE (can't refer to any other ground only to the partially submitted ground)

is submitted and found by the jury and a necessary element is omitted from the charge WITHOUT REQUEST OR OBJECTION AND

THERE IS FACTUALLY SUFFICIENT EVIDNENCE TO SUPPORT A FINDING,

you waive your right to a jury trial on the issue.

Front 143

So once the jury trial has been waived, what cna the trual court do?

Back 143

a. The trial court, at the request of either party, may
i. after notice and hearing and at any time before the judgment is rendered,
ii. make & file written findings on such omitted element or elements IN SUPPORT OF THE JUDGMENT.
iii. (Basically a bench trial on those elements);
OR
b. If no written findings are made, such omitted element(s) shall be deemed found to support the judgment (by the AC)

c. As long as you notice the omission, you must decide whether you want a judge to decide it, or a jury. It won’t be deemed as long as you notice the omission b/c you can request the judge rule on that fact.

i. Look out for anything that’s not an element of a fully submitted ground – don’t want to let it sneak in as a partial submission.

Front 144

OTHER EXAMPLES OF EFFECT OF OMISSIONS

Back 144

• Whole Submission
• 2 coa (FI and assault). 1 coa is omitted from charge. What should happen?
• “Upon appeal, all individual grounds of recovery or of defense not conclusively established under the ev and no element of which is submitted or requested are waived.” TRCP 279 1st sentence
• If not requested / submitted, waived ground or defense (unless conclusively established)

• Partial Submission 279 2nd sentence (could be ground or defense)
• Party waives right to jury on omitted element, when these elements met:
o (1) should be ground that has more than 1 element
o (2) at least one necessary element is submitted
o (3) necessarily referable thereto
• Ground #1 has elements 1,2,3
• Ground #2 has elements 3,4,5
• Charge just has 1,2,3
• Element 3 isn’t necessarily referable to Ground 2. No notice that this was partial submission to Ground #2
o (4) found by jury
o (5) at least 1 necessary element is omitted
o (6) w/o request or objection
o (7) omitted element supported by factually sufficient evidence

Front 145

What does it mean to be necessarily referrable thereto?

Back 145

Ground #1 has elements 1,2,3
• Ground #2 has elements 3,4,5
• Charge just has 1,2,3
• Element 3 isn’t necessarily referable to Ground 2. No notice that this was partial submission to Ground #2

Front 146

• How you can try to solve the problem: Ask TC to make fact finding

Back 146

o Court can fact-find (following procedure in the rule).
o Notice and hearing
o Have to ask for that though
o If no one requests, an element doesn’t have a fact-finding
• If judgment is rendered, AC deems that TC made implied finding that supports the judgment.

Front 147

• If there is partial submission, what should you do in the charge conference?

Back 147

Depends on if you want judge or jury to decide the element. If you don't notice, then the judge will decide.

Front 148

• Appeals HYPO: Element missing from coa. Jury answers “yes.” Δ moves for jnov on basis of NE of element that was in charge. TC grants jnov. Π appeals.

Back 148

o 2nd sentence situation = partial sumission. There was no objection, so it was waived
o No one asked the TC to find it, so the AC will find deemed the finding on missing element in accordance with the judgmenent (in this case judgment was against the plaintiff. Π not entitled to judgment.

Front 149

• HYPO: Q1 omits an element. Π ob to omission of the missing element. Jury finds “yes.” Δ moves for jnov based on NE of another element. TC grants the jnov.

Back 149

o AC thinks that there is some evidence of the element the jnov is on..
o AC can’t affirm for Δ b/c Π objection to failure to submit missing element.
o Π gets a new trial at least (remand b/c charge error)

Front 150

• HYPO: Same, but TC denies the jnov and grants judgment for Π on verdict

Back 150

o 2nd sentence – must occur w/out request or ob. There was an ob by Π
o Does Π count for the “w/o request/ob” or just party deemed against?
• Rule doesn’t specify
• 460 SW2d 473? Pacedena v. Connor
• without request or ob from complaining parties
• i.e. only way to prevent deemed finding against you is to ob/request

Front 151

MORE HYPOS FROM ANOTHER OUTLINE

Hypo: After class, Powell goes up to his office. He sees someone (a stranger) walking out of his office with his laptop. Powell grabs him, grabs the laptop, and takes him to his office. Powell tells the kid to stay there while he gets the campus police. Turns out, the kid is a student worker sent by the Rickys. The kid sues Powell for false imprisonment and assault. Now we’re in the charge conference. Court’s charge submits false imprisonment but not assault. What should Powell’s lawyer do?

Back 151

Keep quiet. According to Rule 279, when an entire ground of recovery is omitted from the charge and it goes to the jury without objection, that ground is waived.

Front 152

Hypo: What if the charge simply omits an element (part) of a ground of recovery?

Back 152

This time, Powell’s lawyer should object/request. If he doesn’t, the court can make a finding on that element in favor of the verdict upon request, notice and a hearing. In other words, you’re waived your right to a jury trial on that element. If the court doesn’t do this, the appellate court will make a deemed finding in favor of the verdict.

Front 153

Ground is waived if…

Back 153

• Independent ground
• Not conclusively established
• No element of which is submitted
• No element is requested

Front 154

Opponent loses right to jury trial if…

Back 154

• Ground has more than one element
• At least one necessary element is submitted
• Necessarily referable thereto
• And found by jury
• At least one necessary element is omitted
• Without request or objection
• Omitted element supported by factually sufficient evidence

Front 155

What is the effect at the trial court level and at the appellate level?

Back 155

Effect at TC level: After requested notice and hearing, trial court can make and file written findings on the omitted element in favor of the judgment. In other words, opponent waives his right to jury trial on that ground!

Effect at COA: In no written findings were made at TC level, COA will deem the omitted elements found in support of the judgment.

Front 156

Is this necessarily referrable thereto?

Hypo: Questions 1 (“detention without legal justification”) and Question 2 (“detention without P’s consent”) are elements of false imprisonment. Question 3: “Did Powell detain P by threat?”

Back 156

A threat can be an element of assault. But detention is not. In other words, question 3 is not unique to assault and thus is not necessarily referable thereto. Thus, Powell’s lawyer should keep quiet.

Front 157

Hypo: Question 1 includes the elements of false imprisonment in broad-form.

Question 1A says, “Did Powell intentionally or knowingly threaten P?”

Back 157

Now, Powell’s lawyer should worry that this is a partial submission. “Intentional and knowing” are unique to assault. The threat element may be common between the two grounds, but it doesn’t have to be. Assault can be one of three things—one of which is threat. However, it is close enough that Question 1A is more likely “necessarily referable” to the assault claim now.

Front 158

Hypo: Question 1 contains all elements of false imprisonment in broad-form. Question 2 contains all elements of assault except “intentionally or knowingly.”

Back 158

Isn’t it true that this is an error of commission? Doesn’t Rule 279 only speak to errors of omission? No. An error of commission can implicate Rule 279 when the error is omission of an element. [Why? Because Rule 279 is talking about the effect of omission, not whether you should object or request]

Front 159

FEDERAL JURY CHARGE

Back 159

o FRCP 49, 51
o Need to object, or there is a deemed finding
o Nothing about errors of commission
o Judge can comment on the weight

Front 160

Federal Instructions

Back 160

• 51(d) – preservation
• defect in I, the rule says to object
• omission – object and request
o unless crt already rejected the request on record at prior time
• (b) (c) nature of objection
• timing – before argument; b/f jury instructed
o unless haven’t been told what the JI will be b/f that time
• grounds

Front 161

Federal Requests

Back 161

• Must be written, filed, served, correct
• Timing
• At the close of the evidence
• Or, if court orders, after close of evidence if could not anticipate b/f necessity of request
• Or w/ permission