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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.

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)

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