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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Wednesday, January 26, 2011

Justice Posner Criticizes the Blue Book.

Justice Posner's criticism of the Harvard Blue Book is here.

Scott Brister Interview

Stimulating interview of former Texas Supreme Court Justice Scott Brister is here. May require subscription to Texas Lawyer.

Wednesday, January 19, 2011

The Court of Criminal Appeals Supports a Marginal Traffic Checkpoint against El Paso

In a per curiam opinion joined by seven of the nine judges, the Texas Court of Criminal Appeals held that the presence of a drug-sniffing dog at a license-and-insurance traffic checkpoint did not violate the defendant's right to be secure in his person in the absence of probable cause.
Let's discuss this in order by time. At a night traffic checkpoint, the officers asked all the drivers for license and registration. Lujan said he didn't have his license with him. Lujan said that he and his passenger had been to see one friend. The name of the friend that the passenger gave was different. Lujan was patted down for officer safety, and the patdown showed the officer's Lujan's possession of about $1,562. The officers then had a dog sniff the vehicle. The dog alerted and cocaine was found in the car doors. At trial, Lujan moved to suppress on the ground, that instead of being merely an allowable license-and-insurance checkpoint, the checkpoint was also looking for other violations of law, especially for driving while intoxicated. The trial court overruled the motion. The Eighth Court of Appeals in El Paso reversed and remanded. The CCA took the case on a petition for discretionary review, and reversed El Paso. They held that even though the officers might have found violators of laws in addition to license and insurance violations, the officers would have let anybody who had a driver's license and proof of financial responsibility pass in the absence of reasonable suspicions or probable cause arising because the officers could see the vehicle, just as they could see the vehicles if they had merely been watching the traffic from the side of the road. Lujan got extra attention because he lacked his license, which was a legitimate reason for officers to stop him. He appears to have consented to a search of the vehicle. The CCA judges also found that the dog sniff was OK, which seems consistent with checking the plain smell of a public object. Judge Cheryl Johnson concurred saying that she didn't like having a drug dog at a checkpoint, but in this case, the officers would have found the dope even if the dog had not alerted. Judge Lawrence Meyers dissented. He thought that the Eights had correctly assessed the purpose of the checkpoint. Its purpose was illegal, and the majority gave too much credit to the trial judge's assessment of the evidence.

A Motion for New Trial Is Sometimes Needed to Preserve Error

Texas Rule of Civil Procedure 324(b) requires additional steps to preserve some error in Texas civil actions. As we have discussed in earlier posts, you don't generally get to complain about a trial judge's mistakes unless you objected timely, and let the judge know on the record what should have been done. Sometimes an error which might be important doesn't show up on the record. Generally, if you want to complain about something that hearing evidence would prove, you have to move the court for a new trial and have a hearing at which evidence is heard. You have to do this to inform the judge why the first trial was no good. Judges hardly ever grant motions for new trial (See the post before last.). If the judge does not grant you a new trial, your motion for new trial must make a record of why that failure to grant the new trial was a mistake on the judge's part. If you are going to complain that the facts that were found don't match the evidence, you have to make that complaint in a motion for new trial. This is also the place to complain about incurable jury argument, if the court has not already ruled on it (Again, an earlier post shows why there is likely no such thing as incurable argument anymore.).

Wednesday, January 12, 2011

Fort Worth Holds Identification of Expert and Expertise Area Sufficient to Allow Testimony

A panel of Texas's Second Court of Appeals sitting in Fort Worth held through an opinion of Justice Lee Gabriel, joined by Justice Sue Walker and concurred in by Justice Lee Ann Dauphinot that identifications of  a peace officer as an expert and an affidavit by a witness of that expert witness's expertise was a sufficient disclosure of that expert and that expert's opinions to allow the expert witness to testify, notwithstanding Texas Rule of Civil Procedure 193.6.
It seems clear that the trial judge erred in asking if there were a written objection or motion to compel. The justices just appeared to think that the error was harmless. The practice tip is that, with the benefit of 20/20 hindsight, defense counsel should have filed an objection to the expert. What that objection likely would have gotten was the disclosure that should have been made in the first place.Cooper, Hensley, & Marshall's Texas Rules of Civil Procedure Annotated, 2010 ed. (Texas Annotated Code Series)

Tuesday, January 11, 2011

Neither Plaintiffs Nor Judges Like Retrials

Let's say you are in a Texas state civil jury trial and your side has the burden of proof. That is, generally--the exception would be a declaratory judgment action--, if we are talking about the case-in-chief, you are the plaintiff. If an affirmative defense, the defendant. You discover that after the verdict and after the dismissal of the jury that you don't have a fact finding that you might need. You might think that you have lost and will--at best--have to go through a retrial. You might think that, but Texas Rule of Civil Procedure 279 suggest things that can be done to save the trial. First, you might seek a finding or just prepare to defend an implied finding that what you need at trial was proved as a matter of law. If a trial produces evidence which establishes a point as a matter of law, the jury need not make a finding. Second, a trial judge could make a finding that there was sufficient evidence to prove a point, and that the omitted finding was implied by the jury findings which were made. If the trial judge is too free-handed with the latter findings, it could deprive the defendant of its rights under the the Seventh Amendment to the U.S. Constitution and the parallel provision(s) of the state constitution.Cooper, Hensley, & Marshall's Texas Rules of Civil Procedure Annotated, 2010 ed. (Texas Annotated Code Series)

Tuesday, January 4, 2011

Preservation of Error- Jury Charge Element Omitted

We've talked some about preservation of error. A trial court can be absolutely wrong, but the error cannot be appealed because the party unhappy about it did not communicate that to the trial judge so the error could be corrected then and there. Some error has special rules that must be observed to protect it.  In Texas civil trials, one such rule is Texas Rule of Civil Procedure 278, which tells--to a certain extent--what is needful and optional in preserving error when the trial judge does not submit a question, definition or instruction to the jury.
Two kinds of jury questions exist. The first is the kind of which a party needs an answer to win the trial. For example, plaintiffs need to establish every fact that their cause of action requires. Another example: defendants have to establish every element of an affirmative defense, if they are going to win their affirmative defenses. The other kind of which the other party needs an answer. In the first example above, the defendants. In the second, the plaintiffs. To complain about the first kind of error, the party must submit in substantially correct form in writing the question needed. To complain about the second, that party need only object to the other side's proposed jury questions.
To complain of an omission of any definition or instruction, the party seeking it must submit it to the court in writing in substantially correct form.
The deadline for all these submissions and objections is before the jury charge--the collection of questions, instructions and definitions given to the jury--is submitted to the jury.

What's the Proper Deadline?

A party loses a trial in federal district court. It wants a new trial. It claims that winner hid important documents in discovery and failed to disclose an important witness. What is the deadline for the new trial motion? 28 days under Fed. Civ. P. rule 59(a)--general error--or one year under rule 60(b)(3)--fraud. Massachusetts federal District Judge Patti B. Saris did not decide the issue. The motion was filed more than a year after the judgment. Christina Pazzanese of the Dolan Company--our friends who publish Lawyers USA and Massachusetts Lawyers Weekly--wrote about this ambiguity in the Rules. To read her article on the web one must subscribe to one of those Dolan publications.