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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.

Thursday, April 30, 2015

Beaumont Protects a Defense Verdict from a Trial Judge

A trial judge overrules a jury verdict in favor of the defendant in a personal injury action, and grants a new trial. The defendant brings a mandamus action in Beaumont's Ninth Court of Appeals to overrule the new trial order.
A trial judge has discretion to grant a new trial and can only be overruled if that judge abuses that discretion. However a new trial can only be granted if the reasons for the new trial are supported by the record.
A writ of mandamus is an extraordinary writ. It cannot issue if the aggrieved party has a remedy by way of appeal. By such a writ a court can force a government official to discharge a duty the official clearly has. The official can be the judge of an inferior court. The writ is not supposed to issue unless the official's duty is clear; you can't mandamus someone for a legitimate judgment call of the officer's discretion.
So the appeals court has to walk a tightrope-- it should disapprove only those new trial orders which are clearly unsupported by the record, but otherwise it should let them stand.
Willis Whisnant, Jr. was diagnosed with lung cancer in 1997. In 1998 he sued a contractor of a former employer, E.I. duPont de Nemours and Co., for injuries arising from exposure to asbestos. Whisnant died in 1999 before trial-- cause of death: lung cancer. Whisnant had smoked for 40 years. Around 2007, his experts testified that Whisnant had really died of mesothelioma-- an illness released to asbestos exposure. In December 2007, Whisnant's petition was amended to allege that he had died of mesothelioma, not lung cancer. Whisnant's case came to trial in March 2008 and went on for five weeks, at the end of which, the jury failed to find that duPont's negligence was a proximate cause of Whisnant's injuries. The trial court signed a take-nothing judgment April 17, 2008, then granted a motion for new trial without giving a reason. The Texas Supreme Court took the case up on mandamus and ordered the trial court to specify why it ignored the jury's verdict and granted the motion for new trial. On remand, the trial court signed another take-nothing judgment  on April 15, 2014, and then granted another motion for new trial stating that the jury’s failure to find
liability as to duPont was against the great weight and preponderance of the evidence.
DuPont applies for mandamus that the trial court abused its discretion in granting the motion for new trial and, per curiam, Chief Justice Steve McKeithen and Justices Charles Kreger and Leanne Johnson grant it conditionally. A conditional grant of a writ of mandamus means that the appeals court will not insult the trial court by formally forcing it to do the will of the court of appeals, but instead will monitor the trial court to see that it follows the appeals court's opinion. They will only actually issue the writ if the trial judge fails to take the hint that the opinion gives.
In re E.I. duPont de Nemours and Co., No. 09-14-00465-CV, (Tex. App.--Beaumont, April 23, 2015) (orig. proceeding)

Friday, April 24, 2015

A Civilly Committed Sexually Violent Predator Wants Out, though OSVOM is Opposed; What Does the Trial Judge Need to Do to Pour the Petitioner Out Fastest?

If a person is civilly committed as a sexually violent predator, that person has the right to file a petition for release, even if this petition is not authorized by the Office for Violent Sex Offender Management does not approve. Once the trial judge gets it, the trial judge must deny it "if:
(1) the petitioner previously filed without the case manager's authorization another petition for release; and
(2) the judge determined on review of the previous petition or following a hearing that:
(A) the petition was frivolous; or
(B) the petitioner's behavioral abnormality had not changed to the extent that the petitioner was no longer likely to engage in a predatory act of sexual violence." Tex. Health & Safety Code Ann. sec. 841.123(c) (West 2010).
"The judge is not required to deny a petition under Subsection (c) if probable cause exists to believe that the petitioner's behavioral abnormality has changed to the extent that the petitioner is no longer likely to engage in a predatory act of sexual violence." Tex. Health & Safety Code Ann. sec. 841.123(d) (West 2010).
If the petition is not dismissed summarily, then the petitioner has a right to get an expert at the State's expense, and have a hearing. The petitioner may even insist on a jury to decide that hearing. Paul Keen filed his first unapproved petition for release. The trial judge dismissed it summarily, without holding the hearing that is required. It ruled that probable cause existed to believe that the petitioner's behavioral abnormality has changed to the extent that the petitioner is no longer likely to engage in a predatory act of sexual violence.
Chief Justice Steve McKeithen, writing for a panel including Justices Charles Kreger and Leanne Johnson, pointed out that summary denial under subsection (c) was only available on a first petition if it were frivolous. A non-frivolous first petition had to go on to the fancy section 841.124 hearing. The trial judge had not found that Keen's petition was frivolous, just that it lacked probable cause, which is insufficient for summary dismissal.
In order to get to this ruling, the panel had to determine if it had appellate jurisdiction of the trial judge's decision. They decided that they did, that the trial judge's decision was final as to Keen's petition and that the trial judge's decision had left nothing undecided.
___ S.W.3d ____, In re Paul Keen, (No. 09-14-00406-CV, Tex. App.--Beaumont, April 23, 2015, no pet. h.)

Wednesday, April 15, 2015

Got a Texas State Trial Court Default Judgment? If It's Not Perfect, You Won't Get to Keep It.

Appellate courts don't like trial court default judgments, at least, not in Texas. And Texas state appellate courts have special procedures to reform them. Texas Rule of Appellate Procedure 30  provides that a party that-- basically-- doesn't participate in the trial litigation or timely objects under the usual appellate schedule (That is, Tex.R. App. Proc. 26.1.) has six months to file an appeal-- called a restricted appeal. If reversible error is clearly present on the face of the record, then the default judgment is undone. It doesn't take much error viz. Insurance Co. of the State of Penn. v. Lejeune, 297 S.W.3d 254 (Tex 2009) (per curiam) (clerk's endorsement of the return of citation lacked the time of service).
North American Marine, Inc. v. Charles Heard Law Firm. No. 09-15-00034-CV, (Tex. App.-- Beaumont, Apr. 9, 2015) (mem. op.) (no pet. h.)

Thursday, April 9, 2015

Court Reporters and Court Recorders and Recording Machines-- Oh my!; or How and Why the work of Court Reporters, Court Recorders, and Recording Machines Can Be Mission-Critical to the Trial Team

When trying a case or working in a deposition, before the proceedings begin, give the court reporter or recorder your business card with the name of your party on it. Unless it would give away secrets, write on the card the names of all your witnesses, and also the names of any people or things that would be mentioned in the situation where the record will  be made. Take the record keeper's card (It likely that you will be paying money for the reporter's work, always a cheery thought for the record keeper and for the record keeper's family.). Learn the record keeper's name and how the record keeper likes the name pronounced. Refer to this person by name if you or someone else speaks too quickly or too quietly.
And, though I've never personally had this problem, look recordkeepers over for just a second to make sure that they are not sick, drunk, stoned, or otherwise distracted as in this case. If they are, the problems should be brought discreetly to the attention of opposing counsel and the court.
Reporters and recorders are often the hardest working people in a trial court room. One time when I was a law clerk many years ago, my firm had me transcribe an evidentiary recording. It was exhausting-- millions of little decisions had to be made. Should you include "Ums" and "Ahhs" in the transcript? How far should you go to figure out what someone is saying before giving up and saying that it is unintelligible? How do you punctuate what the people said? They didn't say it thinking that it would be transcribed. Anger them at your peril. They can do little bureaucratic things, especially in high-profile cases or on appeal that will make your life miserable, and you will never know why.
If you are working a case, say, in Title IV-D Child Support Court, where a recording machine is used, you or someone else that you designate must watch the device during the hearing, because if the record is not properly recorded there, the lack of a record is held against the appellant-- which is nearly always your client.