1. 1 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

2. THE ART OF PERSUASION 2

3. 3 Things That Bug Juries Time wasters Time wasters Legalese without explanation Legalese without explanation Not being able to ask questions Not being able to ask questions Attorney bickering Attorney bickering Cheaters Cheaters

4. 4 Things Juries Most Enjoy Learning about the process Learning about the process The interaction – people watching The interaction – people watching Seeing people get a fair trial Seeing people get a fair trial

5. 5 Golden Rules of the Courtroom Be prepared Be prepared Be brief Be brief Be professional Be professional Be seated Be seated

6. THE PLAYERS 6

7. 7 Trial Lawyer Types Paper Shuffler Paper Shuffler Journeyman – works off of rote Journeyman – works off of rote Natural – natural talent, little preparation Natural – natural talent, little preparation Stone Cold Trapper – listens, learns, studies his/her craft Stone Cold Trapper – listens, learns, studies his/her craft

8. 8 Styles and Mannerisms Jack Rabbit Jack Rabbit Turtle Turtle Positive Positive Negative Negative Jolly Golly Jolly Golly Magic Man Razzle Dazzle Methodical High Roller Joe College

9. 9 Make – Up of Trial Lawyers Big Ticket Big Ticket Small Ticket Small Ticket Older Older Affected Affected Pressure Pressure

10. 10 Characteristics of Great Trial Lawyers Polished Polished Crafty Crafty Entrepreneurial Entrepreneurial Good Service Good Service Ambitious Ambitious And above all: his/her handshake means something his/her handshake means something Fascination With People Self Starter Solitary Helper Knows No Strangers

11. 11 Do’s and Don’ts of Trial Lawyers Sell yourself before you sell the jury Sell yourself before you sell the jury Try the case for the right reasons Try the case for the right reasons Cut out the small talk, get down to business Cut out the small talk, get down to business Forget about jury stereotypes Forget about jury stereotypes If you get knocked down, get back up If you get knocked down, get back up Show your anger, when appropriate Show your anger, when appropriate Always be learning Always be learning

12. 12 Do’s and Don’ts of Trial Lawyers You are in charge of your case You are in charge of your case Get, be, or feel, comfortable Get, be, or feel, comfortable If you get hot, stay hot If you get hot, stay hot Be positive Be positive You can be replaced You can be replaced Give it everything you have Give it everything you have Leave your work at the office or courtroom Leave your work at the office or courtroom

13. 13 Jurors Ethnic Posture Ethnic Posture Professions, Trades or Businesses Professions, Trades or Businesses

14. 14 Judge Types Jurist Jurist Principled Principled Intellectual Intellectual Independent Independent Lost Lost Interrupter Interrupter

15. SELLING AND PERSUADING 15

16. 16 Selling Your Case You are a salesperson You are a salesperson Every trial is selling, ABC (always be closing) Every trial is selling, ABC (always be closing) Every sale has 3 components Every sale has 3 components Sellers (you) Sellers (you) Of products (client) Of products (client) To buyers (judge/jury) To buyers (judge/jury)

17. 17 Sales Presentations Pre-demonstration pitch – opening statement Pre-demonstration pitch – opening statement Presentation of the product (show and tell) – present evidence Presentation of the product (show and tell) – present evidence Call for action – closing argument Call for action – closing argument

18. 18 Presentation to Jury Decide on a story model Decide on a story model Juries are story builders Juries are story builders Make opening statements a road map Make opening statements a road map Witness credibility = witness believability Witness credibility = witness believability Lawyer credibility = case believability Lawyer credibility = case believability Anchor to your theme or story model Anchor to your theme or story model

19. 19 Voir Dire Jurors want to talk, let them – Jurors want to talk, let them – gather information Look for people who are materially (as opposed to equivocally) biased against Look for people who are materially (as opposed to equivocally) biased against your case Look for “unshakeable convictions” Look for “unshakeable convictions” Look for “fixed opinions” Look for “fixed opinions”

20. 20 Body Language Everyone communicates with nonverbal signals Everyone communicates with nonverbal signals Jurors perceive through sight (85%), hearing (8%) and other senses (7%) Jurors perceive through sight (85%), hearing (8%) and other senses (7%) Congruence = believability Congruence = believability

21. 21 Juror Buy Signals: Non-Verbal Cues Trial lawyer / witnesses – presenter Trial lawyer / witnesses – presenter Juror – sender of signal “my state of mind is favorable to the presenter” Juror – sender of signal “my state of mind is favorable to the presenter”

22. 22 Common “Buy Signals” Open palms Open palms Relaxed body posture Relaxed body posture Happy face Happy face Synchronized body movements Synchronized body movements Expression of positive feelings Expression of positive feelings

23. 23 Common “Lie Signals” Changes in mood, stance, posture and facial expression 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 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 Overstated feelings – concealment of a more accurate presentation of mood Freudian slips and editing Freudian slips and editing

24. 24 Common “Lie Signals” – con't Decrease in gestures Decrease in gestures Decrease in words used Decrease in words used Incongruent body signals Incongruent body signals Decrease in eye contact Decrease in eye contact Autonomic signals – sweating, breathing, mouth dry Autonomic signals – sweating, breathing, mouth dry

25. 25 Believability Scale Autonomic signals (unconscious) Autonomic signals (unconscious) Legs and feet Legs and feet Trunk Trunk Hand Hand Face Face Verbalizations Verbalizations

26. PRE-TRIAL CONFERENCE AND MOTIONS-IN-LIMINE 26

27. PRE-TRIAL CONFERENCE 1.Governed by T.R.C.P. 166 2.Discretionary with the court. 3.Purpose is to consider: 1.Pleas, motions, exceptions; 2.Amendment of pleadings; 3.Set discovery deadlines; 4.Determine parties contentions; 5.Simplification of contested issues; 27

28. 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

29. 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

30. 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

31. 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

32. 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

33. VOIR DIRE EXAMINATION 33

34. 34 Voir Dire Purposes Two Purposes Two Purposes Test qualifications for challenges for cause – material bias Test qualifications for challenges for cause – material bias Gather information for peremptory challenges Gather information for peremptory challenges

35. 35 Trial Court Discretion Discretionary – as to how voir dire is conducted Discretionary – as to how voir dire is conducted Right/Fair opportunity to question panel Right/Fair opportunity to question panel Bill of Exceptions/Demonstrate Abuse of Discretion Bill of Exceptions/Demonstrate Abuse of Discretion Offer list of questions to be asked as part of Bill of Exceptions Offer list of questions to be asked as part of Bill of Exceptions

36. 36 Record No record = no complaint No record = no complaint

37. 37 Challenge to Array (TRCP 220) Remarks at empanelling Remarks at empanelling Central jury room Central jury room

38. 38 Excusing Jurors Only Judge can excuse jurors Only Judge can excuse jurors Not court personnel Not court personnel

39. 39 Jury Shuffle (TRCP 233) Demand before Voir Dire Demand before Voir Dire Request must be granted Request must be granted Only one shuffle per case Only one shuffle per case Harmless error rule applies Harmless error rule applies

40. 40 Statutory Disqualifications Not a resident of county Not a resident of county Not qualified to vote or no Texas drivers license Not qualified to vote or no Texas drivers license Criminal history Criminal history Blanks in forms – must question Blanks in forms – must question Literacy – must question Literacy – must question

41. 41 Statutory Disqualifications -- Cause Stock holder Stock holder Materially biased or prejudiced in favor of or against a party or the subject matter Materially biased or prejudiced in favor of or against a party or the subject matter

42. 42 Determining Bias or Prejudice Cortez and Hafi cases Cortez and Hafi cases Matter must be pursued Matter must be pursued Court must have grounds to believe material bias Court must have grounds to believe material bias

43. 43 Material Bias v. Equivocal Bias Material bias disqualifies Material bias disqualifies Recantation at prodding of counsel is insufficient Recantation at prodding of counsel is insufficient Equivocal bias does not disqualify Equivocal bias does not disqualify “Leaning” bias does not disqualify “Leaning” bias does not disqualify An “unshakeable conviction” disqualifies An “unshakeable conviction” disqualifies Venire member can be rehabilitated after expressing apparent or equivocal bias Venire member can be rehabilitated after expressing apparent or equivocal bias Challenges for cause on material bias do not turn on magic words 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 Rehabilitative statements that a person can be “fair and impartial” may still disqualify

44. 44 Bias or Prejudice Disqualifications for Cause Having a “fixed opinion” is sufficient to justify disqualification Having a “fixed opinion” is sufficient to justify disqualification Judge has no discretion once material bias or prejudice is established Judge has no discretion once material bias or prejudice is established Non-belief in cause of action is sufficient to disqualify Non-belief in cause of action is sufficient to disqualify “Concealed bias” will allow party a new trial upon proof “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 Concealed bias is giving a deliberate incorrect answer to a material question, which caused harm

45. 45 Preserving Error on Challenge for Cause Demonstrate a juror should be removed for material bias Demonstrate a juror should be removed for material bias Move to strike the juror Move to strike the juror Get a ruling from the court on a challenge for cause Get a ruling from the court on a challenge for cause Object to the court’s denial of 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 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 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

46. 46 Proper and Improper Questions and Comments It is improper to require the jury to commit to certain conclusions, verdicts or views 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 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 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

47. OPENING STATEMENT 47

48. Opening Statement 1.Governed by T.R.C.P. 265 (a), which provides that the purpose of an opening statement is to tell the finder-of- fact, judge or jury: 1)Claims made; 2)What you expect to prove; and 3)The relief sought. 2.Use concept of “Reframing.” 1)Feel – identify belief system 2)Felt – link to belief system 3)Found – build a new belief system 48

49. 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

50. 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 non- working mother.” 5)Don’t be afraid to discuss money because it is a statutory method for correcting injustice. 50

51. 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

52. 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

53. 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

54. PREDICATES, FOUNDATIONS, AND MAKING AND MEETING OBJECTIONS 54

55. 55 EVIDENCE Keeping It In, Keeping It Out – Preservation of Error Through Making and Meeting Objections In Texas Civil Law

56. 56 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.

57. 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

58. Library References The following are “must have” publications in their latest version: (1)Texas Objections – James Publishing; (2)Family Law Section Tool Kit; (3)Family Law Section Predicates Manual; (4)O’Connor’s – Texas Rules of Evidence; (5)O’Connor’s – Specialty Books (6)Judge Wenke’s – Making and Meeting Objections; (7)O’Connor’s Texas Civil Trials; (8)Steven Lubet’s Modern Trial Advocacy 3rd Edition; and (9)ABA’s Electronic Evidence and Discovery Handbook. 58

59. Texas Bar CLE References The best deal going! State Bar of Texas Online Library – 16,000+ articles. $295.00 per year!!! (subscription) 59

60. 60 Documentary & Demonstrative Evidence The Basics. M-Mark I-Identify I-Identify A-Authenticate O-Offer

61. 61 Documentary & Demonstrative Evidence 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

62. 62 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.”

63. 63 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?”

64. 64 Rule 901 - Authenticity 1.Testimony of witness with knowledge: Rule 901(b)(1). 2.Comparison by the trier of fact, or by expert witnesses, with a specimen which has been authenticated: Rule 901(b)(3). 3.Circumstantial proof of the evidence itself: Rule 901(b)(4).

65. 65 Rule 901 - Authenticity 4.Public records. Rule 901(b)(1). 5.Evidence produced as a result of an accurate process or system. Rule 901(b)(9).

66. 66 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).

67. 67 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.”

68. 68 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.

69. 69 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.

70. 70 Rule 801 & 803 – Hearsay & Exceptions 5.Rule 803(8) – Public records. 6.Rule 803(17) – Market reports, commercial publications.

71. 71 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?

72. 72 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.

73. 73 Examples of Predicates for Admissibility : 1.Photographs 2.Business records 3.Audios 4.Videos 5.Map 6.Financial information statements 7.Handwritten letters 8.Police reports 9.Object of clothing

74. Examples of Predicates for Admissibility: 10.Bank records 11.Deposition excerpts 12.Summaries 13.Expert reports 14.Mental health records 15.E-mails 16.Summaries of testimony 74

75. Be Judicious in your Objections Don’t object unless the evidence will hurt your case. 75

76. 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

77. 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

78. There are three (3) Forms of Evidence: (con’t) There are three (3) Forms of Evidence: (con’t) B.Demonstrative – things: (1)Clothing (2)Charts (3)Videos (4)Photographs (5)Body language 3.Electronic Evidence (Hybrid): A.Testimonial B.Nontestimonial (1)Wiretaps (2)E-Mails (3)Videos (4)Audiotapes 78

79. Predicates/Foundations: 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

80. Predicates/Foundations: (con’t) 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

81. Predicates/Foundations: (con’t) 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

82. Predicates/Foundations: (con’t) 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

83. Predicates/Foundations: (con’t) 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

84. Predicates/Foundations: (con’t) 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

85. Predicates/Foundations: (con’t) 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

86. General Rules in the Presentation of Evidence: 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

87. General Rules in the Presentation of Evidence: (con’t) 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

88. General Rules in the Presentation of Evidence: (con’t) 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

89. General Rules in the Presentation of Evidence: (con’t) 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

90. 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

91. General Rules in the Presentation of Evidence: (con’t) 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

92. 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

93. 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

94. 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

95. THE COURT’S CHARGE 95

96. 96 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) 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)

97. 97 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 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 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 Part 3 – covers specific areas of objections and appellate review

98. 98 Part 1

99. 99 The Nuts and Bolts Judicial Survey of Common Mistakes Judicial Survey of Common Mistakes Library References Library References

100. 100 The Nuts and Bolts Recommended Uses of the Jury Charge Before and During Trial Recommended Uses of the Jury Charge Before and During Trial Prepare a draft of the Charge at the outset of the case Prepare a draft of the Charge at the outset of the case Use the Charge as a roadmap for the case and evidence development Use the Charge as a roadmap for the case and evidence development Keep track of the changing issues Keep track of the changing issues Use a draft of the Charge at the pre-trial conference Use a draft of the Charge at the pre-trial conference Use the Charge throughout the trial Use the Charge throughout the trial Use the Charge in voir dire Use the Charge in voir dire Use the Charge in the opening statement Use the Charge in the opening statement Use the Charge as a checklist Use the Charge as a checklist Use the Charge in closing argument Use the Charge in closing argument

101. 101 The Nuts and Bolts Evolution of the Rules Governing Jury Submissions Evolution of the Rules Governing Jury Submissions Background History Background History Proposed Rule Changes Proposed Rule Changes

102. 102 The Nuts and Bolts Hot Topic Questions Hot Topic Questions When is broad form submission not feasible under Casteel? When is broad form submission not feasible under Casteel? Cases concerning liability and damages. Cases concerning liability and damages. What is the latest word on instructions? What is the latest word on instructions? Golden Eagle Archery, Inc v. Ronald Jackson Golden Eagle Archery, Inc v. Ronald Jackson Diamond Offshore Management Co. v. Guidry Diamond Offshore Management Co. v. Guidry Sunbridge Healthcare Corp. v. Penny Sunbridge Healthcare Corp. v. Penny Taylor v Texas Dept. of Protective and Regulatory Services Taylor v Texas Dept. of Protective and Regulatory Services

103. 103 The Nuts and Bolts How do you preserve error and what requires a remand versus a rendering on charge errors under Payne? 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? What is an application of the ‘whenever feasible’ requirement? Hypothetical Hypothetical What is the proper submission under the hypothetical? What is the proper submission under the hypothetical?

104. 104 The Nuts and Bolts Do grounds exist for divorce between Party A and Party B as to: 1.Insupportability of the marriage between Party A and Party B__________ 2.Cruel treatment by Party A toward Party B, if any?__________ 3.Cruel treatment by Party B toward Party A, if any?__________ 4.Party A’s adultery, if any?__________ 5.Party B’s adultery, if any?__________ 6.Party A’s abandonment of Party B, if any?__________ 7.Party B’s abandonment of Party A, if any?__________ 8.Party A and Party B living apart, if any?__________

105. 105 The Nuts and Bolts Checklist for Preservation of Error in the Court’s Charge Checklist for Preservation of Error in the Court’s Charge Court’s charge functions as the verdict Court’s charge functions as the verdict Pleadings + evidence + verdict = judgment Pleadings + evidence + verdict = judgment Three kinds of charges: questions, definitions, and instructions Three kinds of charges: questions, definitions, and instructions Three kinds of problem charges: omitted, defective, and unnecessary charges Three kinds of problem charges: omitted, defective, and unnecessary charges “The Test” for preservation of error in the charge conference “The Test” for preservation of error in the charge conference

106. 106 The Nuts and Bolts Rules for preserving error Rules for preserving error Step-by-Step analysis Step-by-Step analysis Omitted questions [yours] Omitted questions [yours] Omitted questions [theirs] Omitted questions [theirs] Omitted definitions and instructions [yours and theirs] Omitted definitions and instructions [yours and theirs] Defective and immaterial questions, definitions, and instructions [yours and theirs] Defective and immaterial questions, definitions, and instructions [yours and theirs] Objected to question Objected to question Unobjected to question Unobjected to question Limiting or exclusionary instructions Limiting or exclusionary instructions

107. 107 Part 2

108. 108 Getting It Right Pre-Trial Orders – Tex. R. Civ. P. 166 Pre-Trial Orders – Tex. R. Civ. P. 166 Pleadings – A Blueprint for the Charge – Pleadings – A Blueprint for the Charge – Tex. R. Civ. P. 47, 278 Fair Notice Required in Pleadings – Fair Notice Required in Pleadings – Tex. R. Civ. P. 47 Test of fair notice Test of fair notice Cannot be surprised, prejudiced or misled by evidence Cannot be surprised, prejudiced or misled by evidence Test for fatal variance Test for fatal variance

109. 109 Getting It Right Trial by Consent – Tex. R. Civ. P. 67 Trial by Consent – Tex. R. Civ. P. 67 Exceptional cases only Exceptional cases only Evidentiary stage Evidentiary stage Charge conference Charge conference Trial amendment Trial amendment Appellate review Appellate review

110. 110 Getting It Right The Charge Conference The Charge Conference Request and Tender Stage – Rules for Requesting Charges Request and Tender Stage – Rules for Requesting Charges Should be in writing Should be in writing Should separate requests from other requests Should separate requests from other requests Should separate requests from objections Should separate requests from objections Requests should be marked, refused, signed and filed Requests should be marked, refused, signed and filed Must be present before submission Must be present before submission Must be raised by pleading and evidence Must be raised by pleading and evidence Must be broad for “whenever feasible” Must be broad for “whenever feasible” May submit multiple grounds within question May submit multiple grounds within question Must submit ultimate/controlling questions only Must submit ultimate/controlling questions only

111. 111 Getting It Right Omitted claims or defenses are waived Omitted claims or defenses are waived Omitted elements of claims or defenses are deemed found Omitted elements of claims or defenses are deemed found Definitions and instructions act only as aids to jury Definitions and instructions act only as aids to jury Wide discretion given on definitions and instructions Wide discretion given on definitions and instructions Test for abuse of discretion on definitions and instructions Test for abuse of discretion on definitions and instructions Presumption of average intelligence on the jury Presumption of average intelligence on the jury Must only define words of art Must only define words of art Must submit charge in substantially correct form Must submit charge in substantially correct form “En Masse” requests must not be confusing and must be totally correct “En Masse” requests must not be confusing and must be totally correct Must predicate all conditional requests Must predicate all conditional requests Try to keep it simple Try to keep it simple

112. 112 Getting It Right Objection Stage – Rules for objecting to charges Objection Stage – Rules for objecting to charges Must object before submission Must object before submission Must make objections before the court Must make objections before the court Ruling should be apparent Ruling should be apparent Purpose of objecting before submission – get it right Purpose of objecting before submission – get it right Objections must be distinct and specific Objections must be distinct and specific Test: “Was the court fully cognizant?” Test: “Was the court fully cognizant?” Stock objections – not good Stock objections – not good

113. 113 Getting It Right Obscured and concealed objections – no good Obscured and concealed objections – no good Voluminous objections – no good Voluminous objections – no good Invited error – waiver Invited error – waiver Laundry list objections – no good Laundry list objections – no good Look at entire charge for error in submission Look at entire charge for error in submission Order of submission – up to the judge Order of submission – up to the judge

114. 114 Part 3

115. 115 Fixing Any Errors Specific Areas of Objections Specific Areas of Objections Objections to the charge as a whole Objections to the charge as a whole Charge not signed by the judge Charge not signed by the judge Texas pattern jury charges – safest route Texas pattern jury charges – safest route Charge not filed with the clerk Charge not filed with the clerk Charge not presented to counsel for inspection Charge not presented to counsel for inspection Reasonable time not given Reasonable time not given Charge submits a ground which is not a basis for recovery Charge submits a ground which is not a basis for recovery

116. 116 Fixing Any Errors Omitted charges Omitted charges If it is the proponent’s claim – submit If it is the proponent’s claim – submit If it is the opponent’s claim – do nothing If it is the opponent’s claim – do nothing All definitions and instructions, proponent or opponent – submit All definitions and instructions, proponent or opponent – submit

117. 117 Fixing Any Errors Defective questions – object Defective questions – object No pleadings No pleadings No evidence No evidence Variance between pleading and proof Variance between pleading and proof Duplicative questions Duplicative questions Shades and phases Shades and phases Burden of proof not placed on either party Burden of proof not placed on either party Burden of proof improperly placed on the wrong party Burden of proof improperly placed on the wrong party Comment on the weight of the evidence Comment on the weight of the evidence Advises the jury of the effect of the answer Advises the jury of the effect of the answer

118. 118 Fixing Any Errors Disjunctive submission Disjunctive submission Not an ultimate question controlling the disposition of the case Not an ultimate question controlling the disposition of the case Inferential rebuttal question Inferential rebuttal question Uncontroverted question Uncontroverted question Immaterial question Immaterial question Question permitting a double recovery Question permitting a double recovery Assumes material controverted facts Assumes material controverted facts No predication or improper predication No predication or improper predication Questions of law Questions of law

119. 119 Fixing Any Errors Defective definitions and instructions – object Defective definitions and instructions – object Misstates the law/misleads the jury Misstates the law/misleads the jury Inclusion of instruction Inclusion of instruction No pleadings No pleadings Immaterial, unnecessary or superfluous charges– object Immaterial, unnecessary or superfluous charges– object

120. 120 Fixing Any Errors Appellate Review Appellate Review Standard of review – abuse of discretion Standard of review – abuse of discretion Trial court’s requirements Trial court’s requirements Test for abuse of discretion Test for abuse of discretion Test for reversal Test for reversal Reversal: remand or rendition Reversal: remand or rendition

121. FINAL ARGUMENT 121

122. 122 Final Argument 1.Right to open and close governed by T.R.C.P. 266, 269. 1)Right belongs to the party who has the burden of proof on the whole case. 2)Ordinarily the right resides with the plaintiff. 2.Time allocation. 1)Discretionary with court. 2)Unequal allocation is not in and of itself error.

123. 123 Final Argument (con't) 3.Motion to fully open. 1)Burden to fully open on the whole case is preserved by filing a motion to fully open. 2)If motion to fully open is filed closing argument is limited to rebuttal only to reply arguments.