1. law, govt and politics

Jury Charges in State Court
Presented by:
Hon. Mary Murphy
Court of Appeals for the Fifth District of Texas at Dallas
Scott Stolley
Thompson & Knight LLP – [email protected]
Kirsten Castañeda
Locke Lord Bissell & Liddell LLP – [email protected]
Written materials prepared by Kirsten Castañeda
Dallas Bar Association Trial Skills Section
July 8, 2011
Our goal in this presentation is to provide some practical tips for drafting and
objecting to Texas state court jury charges, as well as sharing our collective experiences
and perspectives from both sides of the trial and appellate court bench. In addition to
the insights we’ll be discussing at the presentation, these written materials provide:

an overview of recent changes to pattern jury instructions and questions;

summaries of two Texas Supreme Court opinions to keep handy when
drafting and objecting to jury charges;

some practical drafting tips;

a list of useful drafting resources; and

a discussion of considerations and preservation issues when making
objections.
Amended Texas Rule of Civil Procedure 226a
In addition to the Texas Pattern Jury Charges, pattern jury instructions are
provided in Texas Rule of Civil Procedure 226a. Rule 226a was amended in mid-March
2011, effective April 1, 2011. The amendments substantially revise the instructions to be
given to the venirepanel before voir dire, the instructions for the jury after being sworn
in, and the initial instructions to be included in the Court’s Charge. A copy of the
amended rule is attached for your convenience. The amended rule is available online on
the Texas Supreme Court’s website (http://www.supreme.courts.state.tx.us/rules/
trcphome.asp) as part of the online Texas Rules of Civil Procedure and as a stand-alone
document.
New Editions of the Texas Pattern Jury Charges
2010 volumes of the Texas Pattern Jury Charges are now in effect. Among the
changes to the prior versions are the following:1

All three civil litigation volumes contain new or revised instructions on:

Jurors’ use of electronic technology (new instruction)

The meaning of “new and independent cause” (comment revised to
add the phrase “unbroken by any new and independent cause” to
the proximate cause definition)
This list was compiled by reference to the article “Changes in the 2010 Pattern Jury Charges”
presented by Justice Jeff Brown, Brett Busby, Justice Tracy Christopher, and Jeff Levinger at
the State Bar of Texas 24th Annual Advanced Civil Appellate Practice Course, September 2 and 3,
2010.
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


Imputing gross negligence to a corporation (instruction revised to
delete the “manager” option)
The general negligence and intentional personal torts volume contains:

Revised prefatory language in multiple damages questions

Revised language in damages question for injuries of a minor child

Revised comment to damages question for parent’s loss of services
of a minor child

Additional “or” and “and” added in several questions for clarity,
based on survey of trial judges and study with mock jurors

Revised comment on proximate cause in a negligent entrustment
claim

New chapter on limitations (PJC 14.1)
The malpractice, premises, and products volume contains:

New comment and proposed instruction regarding “lost chance of
survival”

New comment regarding “reasonable” as opposed to “ordinary”
standard of care in certain malpractice cases

New comment to several questions regarding the effective date of a
responsible third party designation

New comments regarding emergency medical care

Revised definition of ordinary care for a non-medical professional

Revised comment regarding distinction between contractual
retention of right to control and the actual exercise of control in
premises cases

New comment regarding manner of determining status of a plaintiff
when defendant is an exclusive or non-exclusive easement holder

New and revised questions and comments regarding negligence and
negligent undertaking in products cases

Correction to the conditioning instruction in breach of warranty
question

Revisions to damages question regarding injury to a minor
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

New examples of measures of economic damages in legal
malpractice cases
The business, consumer, insurance, and employment volume contains:

New questions and instructions regarding claims for violation of the
Texas Securities Act

New comment regarding use of PJC 104.1 when the existence of a
formal fiduciary duty is disputed

Substitution of question and instruction (104.3) for prior comment
regarding modification of breach of fiduciary duty question when
burden does not shift to the fiduciary

Revision of the justification defense question in the tortious
interference chapter

New comment to the conspiracy question regarding evidence of
divisible damages from multiple underlying torts, when there is a
dispute about which torts were a subject of the alleged conspiracy
Two Cases to Keep Handy
Regal Finance – “if” does not mean “only if”
In Regal Fin. Co. Ltd. v. Tex Star Motors, the Texas Supreme Court threw some jury
charge curveballs. --- S.W.3d ---, 53 Tex. Sup. Ct. J. 1034, No. 08-0148 (Aug. 20, 2010).
Eight justices formed the majority, while Justice Johnson dissented.
The opinions involve a UCC Article 9 claim and a jury instruction on the term
“commercially reasonable.” Article 9 requires a secured creditor to prove it disposed of
the collateral in a commercially reasonable manner before the creditor may recover any
deficiency. 53 Tex. Sup. Ct. J. at 1036. Article 9 provides several non-exclusive
examples of commercially reasonable dispositions, including a disposition “in
conformity with reasonable commercial practice among dealers in the type of property
that was the subject of the disposition[s].” Id. The question on the Article 9 claim
provided only one instruction on the meaning of commercially reasonable: “A sale is
commercially reasonable if it conforms to reasonable commercial practices among
dealers in the type of property that was the subject of the sale.” Id.
There were no proper objections to the jury instruction at issue. Accordingly, the
Court did not consider or decide whether the instruction given was proper or whether
additional instructions were required in order to properly and fully instruct the jury.
Instead, Texas law required that the sufficiency of the evidence be measured against the
definition as it was given. But, the threshold question was whether the definition
limited the jury to “conformity with industry practice” as the sole method of establishing
“commercially reasonable” in this case. Id. at 1036.
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The majority opinion answered “no.” 53 Tex. Sup. Ct. J. at 1036-38. Furthermore,
in its analysis of the sufficiency of the evidence, the Court used other legal standards for
“commercial reasonableness,” even though none of those standards were included in the
charge. Id. at 1038-40. The Court’s holdings on these two points have broader
implications with regard to Texas jury instructions.

By using the term “if” instead of the phrase “only if,” the
instruction did not limit the jury to the stated method in
determining whether the sale was commercially reasonable.
“If” does not mean the same thing as “only if” even though there is only one
definition/example given in the instruction. See 53 Tex. Sup. Ct. J. at 1037-38. This
holding has far-reaching implications because the Texas Pattern Jury Charge uses “if” to
define many terms. See, e.g., PJC §§ 101.4, 101.5, 101.24, 101.25, 101.26, 101.27, 101.28,
101.29, 101.30, 101.31, 101.32, 101.33, 101.42.
For example, the PJC defines “apparent authority” as follows:
Apparent authority exists if a party (1) knowingly permits another to hold
himself out as having authority or, (2) through lack of ordinary care,
bestows on another such indications of authority that lead a reasonably
prudent person to rely on the apparent existence of authority to his
detriment.
PJC § 101.4 (emphasis added); see also Regal Fin., 53 Tex. Sup. Ct. J. at 1043 (Johnson,
J., dissenting). Under the majority opinion in Regal, this instruction would not limit
the jury to the listed methods in determining whether apparent authority exists. If you
want the appellate courts to review your case and the jury’s findings under the standard
that these are the only two ways that the jury can find apparent authority, do you now
need to object in the trial court, propose a substantially correct instruction, and cite to
Regal? Under Regal, perhaps the instruction should say “Apparent authority exists
only if a party . . .” or “Apparent authority means that a party either . . . ?” It also
will be interesting to see whether Regal spurs any revisions to these types of instructions
in the PJC.

If the evidence is sufficient to support any of the legally
permissible methods of proving commercial reasonableness,
the evidence may be sufficient even if the jury was never
instructed on those legal standards.
It also appears that the majority made the following determination: Where the jury
is instructed on only one of several methods for determining commercial
reasonableness, and the charge (without objection) does not instruct that the jury is
limited to the stated method, the evidence is sufficient to support a finding of
commercial reasonableness if there is evidence sufficient to support any of the legally
permissible methods of proving commercial reasonableness, even if the legal standards
for commercial reasonableness are beyond the common understanding of laypeople and
the jury was never instructed on those legal standards.
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After deciding the meaning of the “commercially reasonable” definition given to the
jury, the majority turned to the question of whether the evidence was sufficient to
support the jury’s finding. Regal Fin., 53 Tex. Sup. Ct. J. at 1038. In determining that
the evidence was sufficient to support the jury’s finding of commercial reasonableness,
the majority cited various legal factors that courts have relied upon to find commercial
reasonableness, as well as the policies underlying Article 9. Id. at 1038-39. However, as
the dissent pointed out, Texas law did not allow the jury to use any of that information
in reaching its decision unless: (1) the charge instructed the jury that such law applied;
or (2) the law was injected into the trial through evidence, such as expert testimony. Id.
at 1044 (Johnson, J., dissenting).
The charge did not instruct the jury on any standard for commercial reasonableness
other than compliance with industry practice, and there was no expert testimony or
other evidence telling the jury about any other way (i.e., other factors or policies) to
establish commercial reasonableness. See id. at 1044-45. For example, Regal did not
have a qualified expert witness testify as to what were reasonable commercial practices
among dealers in the same type of property that Regal was liquidating, or that Regal’s
actions conformed to such practices. Id. at 1045. Thus, regardless of whether “if”
means “only if,” the dissent concluded that the charge functionally gave the jury – who
had no common understanding of the legal standards applicable to “commercially
reasonable” – only one way to find commercial reasonableness. Id.
Nevertheless, because the charge did not limit the jury to the stated method, the
majority examined the other methods available at law when it analyzed whether the
evidence was sufficient to support the “commercially reasonable” finding. Id. at 1038-39
(majority op.).
Hawley – the jury must be instructed on applicable standards and
definitions
In Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex.
2009), the Texas Supreme Court provided useful guidance on the types of instructions a
jury must be given to flesh out the basic or pattern questions and instructions. In
Hawley, the trial court had refused to give proposed instructions regarding lost chance
of survival and a physician’s independent contractor status. 284 S.W.3d at 854. With
regard to lost chance of survival, the evidence conflicted as to the patient’s chance of
survival at the time of her diagnosis. Id. at 859. The defendant requested the following
instruction:
You are instructed that [patient] must have had greater than a fifty percent
(50%) chance of survival on [the date of diagnosis] for the negligence of
[hospital] to be a proximate cause of injury to [patient].
Id. The trial court refused to give the instruction, although the lawyers explained in
closing arguments that this was the law. Id. at 861.
The Texas Supreme Court held that the trial court was required to give the
instruction because it “would have provided to the jury the standard it was required by
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law to apply in making its finding on a hotly-contested issue.” Id. at 862. The Court
concluded that “[i]t asks too much of lay jurors, untrained in the law, to distill the
correct Texas legal standard for loss of chance from the general proximate cause
instruction given by the trial court.” Id. Because the requested instruction would have
assisted the jury, was an accurate statement of applicable law, and was supported by the
pleadings and evidence, the trial court abused its discretion by refusing to give it. Id.
In addition, the defendant requested the following instruction regarding the
physician’s status as an independent contractor:
In considering the negligence of [hospital], do not consider the acts or
omissions of the pathologist, Dr. Valencia.
284 S.W.3d at 863. The trial court instructed that a hospital acts through its employees,
agents, nurses, and servants. Id. The defendant did not object that this was an
incorrect or improper statement of the law, but contended that the additional
instruction was necessary to prevent the jury to improperly include the pathologist in
these categories. Id. Because the word “agent” has a common meaning and was not
defined in the court’s charge, the jury could have considered the pathologist to be the
hospital’s agent. Id. The requested instruction “was effectively a limiting and proper
definition of the term under the evidence.” Id. at 863-64. Because the requested
instruction would have assisted the jury, was an accurate statement of applicable law,
and was supported by the pleadings and evidence, the trial court abused its discretion by
refusing to give it. Id. at 864.
The Court found the first jury charge error to be harmful and presumed that the
second error was. 284 S.W.3d at 864-65. Thus, the trial court’s judgment was reversed
and the case was remanded for a new trial. Id. at 865.
Drafting Tips
Outline the claims and defenses
Overall, it is enormously helpful to outline the elements of the claims and
defenses at issue. This outline not only assists in double-checking your draft charge for
completeness, but also provides a handy reference when analyzing measures of
damages, causation standards, and other aspects of each question. The best time to
prepare this type of outline is at the outset of the case. It is invaluable in crafting written
discovery requests and oral deposition questions, analyzing how issues requiring expert
testimony fit into the bigger picture, and preparing summary judgment motions.
However, if you’ve delayed drafting this (and your charge) until just before trial, some
resources that may be helpful to draft your outline (in addition to the live pleadings and
the language of any statutes at issue) are any summary judgment motions,
Daubert/Robinson motions, and motions in limine filed in the case.
Proper measure of damages. Damages must be measured by a legal standard.
Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 90 (Tex. 1973). The proper legal
standard must be used to guide the fact finder in determining what sum would
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compensate the injured party. Id. Thus, at trial, the jury must be told how to measure
the damages sought. Id.; see also, e.g., Texas Pattern Jury Charges Business, Consumer,
Ins., Emp’t 115.2 cmt. “Instruction required” (stating “PJC 115.2 may not be submitted
without an instruction on the appropriate measure of damages” [emphasis in original]).
Although the examples given in the PJC sometimes are helpful in crafting the measure
to be used in your jury charge, it is often the case that none of the sample measures fit
the facts, and your measure must be crafted from the case law as applied to your
circumstances.
Whether viewed in the context of the jury charge, a summary judgment motion,
or a Daubert/Robinson challenge, knowing the proper measure of damages is critical.
Likewise, assembling evidence of the proper measure of damages is essential. If you are
the plaintiff and your fact and expert evidence uses an improper measure of damages,
you will be unable to establish an essential element of your claims. If you are the
defendant, you need to know whether the plaintiff has an essential-element problem,
but also you want any controverting evidence to focus on the proper measure of
damages.
Causation standard
Many times in the PJC, the causation linkage is not stated using legal causation
terminology (e.g., PJC 115.20), but instead using phrases such as “resulted from” (e.g.,
PJC 115.2, 115.19) or “because of” (e.g., PJC 115.11). Be aware that these phrases may
not limit the jury to the proper causation standard. You may want to propose a question
using the proper legal causation term and an instruction defining that term, and you
may need to object if the trial court refuses to use your proposed language.
Conditioning.
Pay attention to which questions you’re linking together by conditioning
language. Evaluate spots where conditioning may be absolutely mandatory to avoid
possibly conflicting answers. Also analyze whether some questions should not be
conditioned in order to eliminate the need for a new trial if one or more of the jury’s
answers is/are found to be without legal or evidentiary support. Finally, think critically
about which questions should be the basis for your conditioning in any punitive
damages predicate and damages questions.
Don’t assume the pattern is correct. And do read the comments.
Know where the potential pitfalls are. The wording of the proximate cause
definition. Causation linkage in damages questions. The language in the conspiracy
question/instruction. These areas are some of the spots where the Pattern Jury Charge
may not be correctly worded. In addition, don’t forget that many of the PJC comments
discuss alternative language or modifications that should be made in a variety of
circumstances. If those circumstances exist in your case – or if analogous circumstances
exist in your case – you should consider what alterations should be made to the pattern
language in proposing questions and instructions for the court’s charge.
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Drafting Resources
In addition to the questions, instructions, and definitions in the Texas Pattern
Jury Charges, there are several other resources you may find helpful in drafting your
proposed charge.
Pattern resources
Comments in the Texas Pattern Jury Charges (2010)
Don’t forget to read them, but read with a critical eye. For example,
a comment to PJC 2.4 (defining proximate cause in negligence cases) states:
“Modify if ‘ordinary care’ not applicable to all. If “ordinary care” is not the
standard applicable to all whose conduct is inquired about, the phrase the degree
of care required of him should replace the phrase ordinary care in the second
sentence of this definition of ‘proximate cause.’ See Rudes, 324 S.W.2d at 206–
07.” Texas Pattern Jury Charges General Negligence, Intentional Personal Torts
2.4 cmt. “Modify if ‘ordinary care’ not applicable to all” (2010). What the
comment doesn’t say is that the jury then should be instructed on what degree of
care is required of each actor. See Hawley, 284 S.W.3d at 862.
Oil, Gas & Energy Law Section Pattern Jury Charges (2005) –
click on the link at http://oilgas.org/DrawOnePage.aspx?PageID=13, or directly
access the pdf at oilgas.org/Content/PDFs/PatternJuryCharges.pdf)
5th Circuit Pattern Jury Instructions – Civil (2006) – click on the
“Fifth Circuit 2006 Civil Jury Instructions” link on the 5th Circuit Pattern Jury
Instructions page (http://www.lb5.uscourts.gov/juryinstructions)
5th Circuit Labor and Employment Law Pattern Jury Charges (3d
rev. 2009) – click on the “About the 2009 Civil Jury Instructions” link on the 5th
Circuit Pattern Jury Instructions page
(http://www.lb5.uscourts.gov/juryinstructions)
Other resources
Through Westlaw (or LEXIS), it is possible to track down sample state court
charges. On Westlaw, the State Court Filings database is located in U.S. State Materials
> Trial Filings (pleadings, motions, and other filings combined) > State Trial Filings.
The filings are broken down by state. You will want to perform a Terms and Connectors
search in the Texas Civil Trial Court Filings for DT(jury) – DT stands for docket type.
Because this database is state-wide, it is not very useful for finding sample
charges given by your particular trial judge, but it is useful for finding sample charges on
issues not covered by the PJC. However, caveat emptor – the court’s charge will not tell
you what objections were (or were not) made to the questions and instructions, nor will
it reveal the hotly contested issues on which everyone was (or was not) focused.
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Subsequent history checks are a good idea, as well, to see whether an appeal has been
taken based in any part on the charge.
For example, in your Westlaw search in the Texas Civil Trial Court Filings for
dt(jury), you can Locate search for “misappropriat! /50 trade /8 secret!” The first word
range is large because the jury question may substitute a description of the information
at issue for the generic term “trade secrets.” This search may yield petitions with jury
demands or motions to disregard answers in the jury’s verdict, but it also may yield
some jury charges on your issue:
Sample federal court charges
Using a combination of Westlaw (or LEXIS) and PACER, it is possible to track
down sample federal court charges, as well, which may also be useful in state court.
Unlike the state-wide database for state court charges, the district-limited database in
Westlaw makes it easier to find charges given in a particular district or by a particular
judge. (If you are in federal court, this can be helpful in determining whether your judge
prefers to provide all the instructions followed by a verdict form with questions only, or
to ask questions followed by instructions.)
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Currently, you cannot search PACER for types of documents (i.e., jury charges)
across cases. Westlaw has a database called District Court Filings. This database is
located in U.S. Federal Materials > Trial Filings (pleadings, motions, and other filings
combined) > Federal Trial Filings. The filings are broken down by district.
If you want to search for jury charges in the Northern District of Texas, click on
the United States District Court, N.D. Texas Civil Trial Filings link, and do a Terms and
Connectors search for “DT(jury).” This search will pull up complaints that include jury
demands, but also will include jury charges and verdict forms:
From the docket number on the 2011 Milam verdict form (2:09-CV-003-J), we
know that this is a verdict form (questions only) given by Judge Robinson in Amarillo.
Further down the list, there is a court’s charge (2011 Daniell charge) using the
question/instruction format similar to Texas state court practice.
Sometimes, a search will grab a proposed charge but not the official court’s
charge, or (as with the Milam document above) will produce the verdict form but not
the accompanying charge/instructions. In those cases, you may want to access PACER
and, using the docket number from the Westlaw filing, check to see if the court’s charge
is electronically available there.
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Tips for Objections2
The same areas identified above in the “Drafting Tips” section are good places to
start when analyzing the other side’s proposed charge (or the court’s own draft).
Claims and defenses. Are all of the necessary claims and defenses
included? Are all elements encompassed and any necessary definitions given? If
the claim is based on a statute, does the proposed question, instruction, or
definition track the statutory language?
Measure of damages. Are the damages measures included? Are they
properly stated? Are they adequately limited as to time?
Causation. Is the jury properly asked and instructed about the type of
causation needed?
Conditioning. Does conditioning appear where needed? Are other
questions also conditioned, and if so, is the conditioning proper? Does the
conditioning link one question to the proper earlier question? Sometimes a flow
chart or decision tree can make this much clearer.
Check the PJC and comments. Is there a pattern for each question or
instruction? If so, has the pattern been followed or is there a basis for any
divergence? If not, is the issue covered by any comments in the PJC?
Here are some additional tips in formulating objections to the charge – this is by
no means an all-inclusive list, and is meant to provide some practical ideas that may not
be found in practice guides and treatises.
Check any cited case law, and look for additional case law regarding the
claim or even sample questions and instructions. Many times, reading the cases
cited in support of a proposed question, instruction, or definition reveals that: (1)
the case does not actually provide any support; or (2) the proposed language is
different from the language in the cited case. Moreover, there may be newer
cases, or disputes among Texas courts of appeals, about the parameters of a
claim, the burden of proof, the requisite type of causation, or even the wording
that should be used in submitting the issue to the jury.
Evaluate whether each question properly places the burden of proof.
Generally speaking, the question should be asked so that a “Yes” answer favors
the party bearing the burden of proof. See Turk v. Robles, 810 S.W.2d 755, 759
(Te. App.—Houston [1st Dist.] 1991, writ denied). If there is doubt as to which
party bears the burden of proof (e.g., when both parties assert breach of contract
In addition to independent analysis, case law, and experience, this section of the materials
draws on the discussions and case law cited in the “Jury Charge” article authored by Jennifer
Bruch Hogan, Richard P. Hogan, Jr., and Matthew E. Coveler for the State Bar of Texas Civil
Appellate Practice 101 on September 1, 2010.
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claims and both allege that the other party committed the first material breach),
the question should ask the jury to answer with substantive information, rather
than a “yes” or “no.” For example:
Who failed to comply with the agreement first?
Answer “Don Davis” or “Paul Payne.”
Answer: _______________
Texas Pattern Jury Charges Business, Consumer, Insurance, Employment 101.2
cmt. “Disjunctive question for competing claims of material breach” (2010).
Determine whether any of the liability questions erroneously commingle
valid and invalid theories. Broad-form submission is not feasible when a single
liability question includes as bases for liability both valid and invalid theories.
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). If the law does
not allow liability to be premised on one basis included in the liability question, if
the applicable law is unsettled, or if there is arguably no evidence to support
submission of that basis to the jury, that element of the liability question should
be submitted as a separate question, if at all. See, e.g., Harris County v. Smith,
96 S.W.3d 230, 236 (Tex. 2002).3
Determine whether any of the damages questions erroneously commingle
valid and invalid elements. Asking the jury to award one lump sum of damages is
not feasible when based on multiple elements of damages, one or more of which
is legally invalid or not supported by legally sufficient evidence. Smith, 96
S.W.3d at 234.
Determine whether the liability questions are properly tied to damages
questions. The term “damages question” is somewhat misleading because such
questions encompass not only the existence and amount of damages, but also the
causal link between those damages and the liability finding. Thus, the court’s
charge must include damages questions that are properly tied to the predicate
liability questions. See, e.g., Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987).
Determine the scope of any punitive damages questions. Punitive
damages should be awarded against the wrongdoer based on:
(1) the
wrongdoer’s own acts causing (2) harm to the plaintiff. See, e.g., Philip Morris
USA v. Williams, 549 U.S. 346, 354-55 (2007). To the extent that a punitive
The Casteel analysis does not appear to apply to a single theory of liability (e.g., negligence)
based on multiple alleged acts or omissions, one or more of which is not supported by the
evidence. See Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 857-59 (Tex. App.—
Fort Worth 2003, pet. denied); see also Bed, Bath & Beyond v. Urista, 211 S.W.3d 753, 756-58
(Tex. 2006); Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 434 (Tex. 2005). However, the Texas
Supreme Court has never expressly addressed this question. See, e.g., City of Fort Worth v.
Zimlich, 29 S.W.3d 62, 69 n.1 (Tex. 2000). Therefore, the safest course at this juncture may be
to object (and request, as needed) in accordance with Casteel.
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damages question is conditioned on earlier questions imposing liability or
culpability on multiple defendants or based on evidence of harm caused to nonparties, the question – even if correctly worded in itself – may be erroneous and
objectionable. Which leads to the next tip . . .
Examine even correctly worded instructions to determine whether they
amount to a comment on the weight of the evidence or require additional
instructions. Even a correctly worded instruction may be erroneous if it is
unnecessary or incomplete. See Wal-Mart Stores v. Johnson, 106 S.W.3d 718,
723-24 (Tex. 2003). An unnecessary instruction may effectively tilt or nudge the
jury toward a certain answer. Or, a correctly worded instruction may use words
that have a specific legal meaning or raise concepts that need additional
explanation. In those instances, the instruction may be an incomplete statement
of the law and require additional definitions or instructions.
In making objections, be mindful of the following preservation requirements:
Objections vs. requests. Some jury charge error is preserved by objection;
other jury charge error may be preserved only by objection and a request in
substantially correct wording. See TEX. R. CIV. P. 274, 278. When in doubt as to
whether both an objection and a request is required to preserve error, “cautious
counsel might choose to do both . . . .” State Dept. of Highways & Pub. Transp.
v. Payne, 838 S.W.2d 235, 240 (Tex. 1992). But here are the general rules for
when to object and when to also request:
Object to a defective instruction or definition that is
included in the court’s charge. TEX. R. CIV. P. 274; Spencer v. Eagle
Star Ins. Co., 876 S.W.2d 154, 157 (Tex. 1994). Be aware that there are
Texas Supreme Court cases holding that an objection is required and a
request, on its own, will not substitute as an objection to preserve error.
See, e.g., Willis v. Donnelly, 199 S.W.3d 262, 275 (Tex. 2006); Hernandez
v. Montgomery Ward, 652 S.W.2d 923, 925 (Tex. 1983); Tex. Gen. Indem.
Co. v. Moreno, 638 S.W.2d 908, 914 (Tex. App.—Houston [1st Dist.] 1982,
no writ); but see Payne, 838 S.W.2d at 239-40 (holding that, even if
objection made was “insufficient,” the complaining party preserved error
by making a request).
Object to an erroneous question that is included in the
court’s charge. Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex.
2003); Religions of Sacred Heart v. City of Houston, 836 S.W.2d 606,
613-14 (Tex. 1992). This rule applies no matter which party bears the
burden of proof in the question.
Object to an omitted question on which the OPPOSING
PARTY bears the burden of proof. TEX. R. CIV. P. 278; Sears,
Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005,
pet. denied). This is an express and very limited exception to the rule that
a party must object to and request a question omitted from the court’s
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charge. See TEX. R. CIV. P. 274, 278. If there is any doubt about which
party bears the burden of proof (e.g., in cases where the burden of proof
may shift depending on the circumstances and evidence), it is best to
object to AND REQUEST (in substantially correct wording) the omitted
question.
Object to AND REQUEST IN WRITING (in substantially
correct wording) an omitted question on which YOU have the
burden of proof – and the court’s refusal of the request must be
clear from the record. TEX. R. CIV. P. 274, 278; ASEP USA, Inc. v.
Cole, 199 S.W.3d 369, 377 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Again, when in doubt about which party bears the burden of proof, the
safest course is to follow this rule by objecting to AND REQUESTING (in
substantially correct wording) the omitted question.
Object to AND REQUEST IN WRITING (in substantially
correct wording) a definition or instruction that is omitted
from the court’s charge – and the court’s refusal of the request
must be clear from the record. TEX. R. CIV. P. 278; Sears, Roebuck &
Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet. denied)
(stating rule and collecting cases). See also McCarthy v. Wani Venture,
A.S., 251 S.W.3d 573, 585 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
“Substantially correct wording” is not measured by a specific test
(of course). The “substantially correct” range appears to fall somewhere
between “perfect” and “not actually incorrect.” See, e.g., S.W. Bell Tel. Co.
v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992); Exxon Corp. v.
Perez, 842 S.W.2d 629, 630 n.1 (Tex. 1992). The best way to make clear
the court’s refusal of your written request is for the court to endorse the
request as “Refused” and sign it. TEX. R. CIV. P. 276; Dallas Mkt. Ctr. Dev.
Co. v. Liedeker, 958 S.W.2d 382, 386 (Tex. 1997). This is the procedure
stated in Rule 276, although the Texas Supreme Court has acknowledged
that this method is not the exclusive means for preserving error in the
refusal of the request. See Liedeker, 958 S.W.2d at 386. Whatever
method is used, the court’s refusal to give the tendered request must be
“clear from the record.” Id.
Specificity of objections. Objections must clearly identify the error and
explain the legal basis (or grounds) for the objection, such that the trial court has
an opportunity to correct the error. Tex. R. Civ. P. 274; Castleberry v. Branscum,
721 S.W.2d 270, 276 (Tex. 1986). Thus, an objection that an instruction “may
confuse the jury” is proper ONLY IF you explain why and how, i.e., why the
instruction is legally incorrect and how it would confuse the jury. See
Castleberry, 721 S.W.2d at 277. On appeal, you generally will be limited to the
specific objections you made at trial. See, e.g., Knapp v. Wilson N. Jones Mem’l
Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.)
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Timing of objections. Texas Rule of Civil Procedure 272 requires that
objections to the charge be presented before the charge is read to the jury. This
requirement cannot be changed by the court or by the parties’ agreement. See
Mo. Pac. R. Co. v. Cross, 501 S.W.2d 868, 873 (Tex. 1973); Methodist Hosp. of
Dallas v. Corporate Communicators, Inc., 806 S.W.2d 879, 884 (Tex. App.—
Dallas 1991, writ denied). Rule 272 expressly states that “[a]ll objections not so
presented shall be considered as waived.” Although Rule 272 requires the trial
court to allow a reasonable time for counsel to review the charge and make
objections, the trial court has considerable discretion in determining what
amount of time is “reasonable.” Bekins Moving & Storage Co. v. Williams, 847
S.W.2d 568, 575 (Tex. App.—Texarkana 1997, no pet.). Reasonableness is viewed
not simply in terms of the amount of time elapsed from counsel receipt of the
court’s final charge, but the time counsel had to review earlier drafts and what
sorts of alterations were made. See id.
Trial judge must attend. At the formal charge conference, the objections
must be made in the presence of the trial judge. Brantley v. Sprague, 636
S.W.2d 224, 225 (Tex. App.—Texarkana 1982, writ ref’d n.r.e.). Otherwise, all
objections are waived. Id. If the trial judge will not comply with this
requirement, the safest course would be to request that the judge comply, object
to any refusal to do so, and obtain a ruling on the record.
No incorporation of objections. Texas Rule of Civil Procedure 274
expressly forbids adopting and applying an objection to one part of the charge to
another part of the charge by reference. Texas courts have applied this rule
equally to prohibit one party from adopting another party’s charge objections by
reference. C.M. Asfahl Ag. v. Tensor, Inc., 135 S.W.3d 768, 795 (Tex. App.—
Houston [1st Dist.] 2004, no pet.); Wright Way Const. Co. v. Harlingen Mall Co.,
799 S.W.2d 415, 420-21 (Tex. App.—Corpus Christi 1990, writ denied).
These tips and observations are a good place to start in drafting and objecting to
jury charges in Texas state court. This area of the law is constantly changing, and we
look forward to meeting the continued challenges.
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