A Good Idea for Your Motion for New Trial or Appeal

For those of you trying a case without a second chair, the estimable Elliot Wilcox offers a good practical suggestion in his message in his latest newsletter that will be a great blessing if you have to prepare a motion for new trial or an appeal. I bought Elliot's books and am profiting by the use of and reading of them, but I do not get paid anything for talking him up, etc.

Preserving Texas State Summary Judgment Error

A couple of weeks ago, I discussed appealing grants or denials of special exceptions of Texas state petitions.    As procedures for a special-exceptions-type problem in a criminal case are not the same as they are in a civil case, summary judgments don't exist in criminal cases.

Let's assume that special exceptions one way or another don't apply in your case. Now, the purpose of a trial is to find facts, but sometimes a case does not require a trial. Civil causes of actions consist of elements, as do affirmative defenses. In ordinary language, one might call a proof problem with an element of the plaintiff's case a defense, but strictly speaking, an affirmative defense is something that, if true, even if every element of the plaintiff's case is true, would cause the plaintiff to lose the case.A good, but not completely exhaustive, list of affirmative defenses is at Texas Rule of Civil Procedure 94. A defendant has to plead affirmative defenses in the answer, and certain suspect defenses have to be sworn to in the answer. That rule is TRCP 93.

For right now, I'm not going to talk about partial summary judgments. Just keep in mind here that, as a general rule, you can't appeal a partial summary judgment until the whole case has been disposed of by final judgment. More about that in a future post.

That a case does not have to be tried can come up four ways:

• There is no dispute that a plaintiff's facts are as the plaintiff says, and there is no affirmative defense;
• There is no dispute as to all the elements of an affirmative defense of a case;
•  One of the elements that a plaintiff needs to prove the case is demonstrably absolutely false; or
•  Proof of one of the elements of the plaintiff's case absolutely cannot be established.

For the first, the rule is TRCP 166a(a). For the second and third, the rule is TRCP 166a(b). For the fourth, the rule is TRCP 166a(i).

To preserve error in a summary judgment, first, make sure that you've done all your work with the special exceptions. You don't want to win a summary judgment only to have it overturned on appeal because the party resisting the summary judgment didn't get a right to replead, etc. Second, if you are fighting a motion for summary judgment, and it is unclear, you have a duty to file special exceptions on the motion. Now here's the best news of the post: in general, your written response to the motion to summary judgment is all the error preservation you need.

Also. be aware that summary judgments are relatively likely to be reversed on appeal. The standard of review for a summary judgment is de novo. Unlike trial judgments, summary judgments don't get a presumption that they are correct.

 

Special Exceptions Preservation of Error

Let's start at the beginning. In a Texas state civil case, what's a defendant to do when a plaintiff files a bogus lawsuit? A defendant would have many options. First, the petition should be examined for a missing or obscure element of something needful- a formal point or an element of the cause of action. Special exceptions to the petition would lie, or they would not. Also, if requested, the special exceptions might be granted, or might not be. That makes a matrix of four options:

1. justified exceptions granted;
2. justified exceptions not granted;
3. unjustified exceptions granted; or
4. unjustified exceptions not granted.

If justified exceptions were granted, generally, the petition would be struck. The striking order should give the plaintiff a chance to correct the problem. If the plaintiff does not, then there's no petition and the case should be dismissed. The plaintiff could appeal, but the appeal would fail.
If justified exceptions were not granted, the case would go on, but the exceptions would preserve appellate error for the defendant, giving a good basis for appeal.
If unjustified exceptions were granted, and repleading would not satisfy the court, the plaintiff should object to preserve error for appeal, and the plaintiff's appeal should be successful.
If unjustified exceptions are not granted, the trial goes on, and the defendant's appeal will not be successful.
Texas Rules of Civil Procedure

Preserving Error as to Jury Questions in Texas Trials

A web post about juror questions in Texas trials is here. It'll give you some clues if you ever have to appeal a juror's asking a question in a Texas criminal trial or unfairly asking a question in a Texas civil trial.

Preserving Peremptory Challenge Error at Trial

A recurring theme of this blog is that in order to get relief from an appellate court trial court error must be properly preserved. Although members of the panel from which a jury is selected can generally be struck from the jury list for any reason, it is illegal to strike panelists solely on account of their race (Batson error) or their sex (J.E.B. error). It is not merely illegal in criminal cases, but also in civil ones per Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
 So what should you do when you think that the other side has made such an improper strike? Before the panel is dismissed and the trial commences, make a prima facie case that the strike was made solely for an impermissible reason or reasons--race or sex.  At that point, the burden of proof shifts to the striker to show that the strikes were made for acceptable reasons.  That is not the end of the process for you. You must then object to or dispute what opposing counsel says, showing that your adversary's explanations are not supported by the facts or are just pretexts for race or sex and ask for a ruling.
In the course of preparing this post I ran across an excellent continuing legal education article on trial error preservation by Southern District of Texas assistant public defender Timothy Crooks (What a surname for a public defender!). I recommend it highly for any criminal defense practitioner in the federal trial courts subject to the Fifth Circuit.

Preservation of Evidence Error

If evidence is excluded by the judge, and the party offering the evidence thinks that the judge erred, that party has to make an offer of proof to preserve the error. The party must have the desired evidence presented to the court outside of the presence of the court. This offer is usually made by questioning the witness. In the rare cases in which the desired evidence can clearly be given by narrative, it may be so given. The offer of proof must be given before the close of the evidence. The idea is that the offer of proof may convince the judge that evidence should be allowed to be presented to the jury.

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.).

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.

How Trial Lawyers Should Object

Trial lawyers should object until the court denies them relief.
Let's look at an example. Your adversary mentions a prior conviction of your client that's already been found to be too old to be mentioned and irrelevant. First, you object-- "Your Honor, I object, violates Evidence Rule 609(b)." (As a practical matter, you need to choose your one best objection. Also the rule number is a nice touch. The Court of Criminal Appeals can't complain you were vague about your objection.) Let's say the judge sustains your objection. YOU ARE NOT DONE. Move for an instruction to the jury to disregard the statement. "Your Honor, I move for an instruction to disregard the statement." Let's say the judge grants your motion and gives the instruction. YOU ARE NOT DONE. You should move for a mistrial; "Your Honor, I move for a mistrial."  The judge will not likely grant this. If the judge does, the trial is over, and will have to start again. The judge will likely deny the motion, but if the judge should have granted the mistrial, you will have preserved error.
What happens if you stop too early? If the judge grants you everything you ask for, you don't get any error preserved. The appellate court won't--can't-- overrule the trial judge because the trial judge did everything you wanted.
Don't let the judge's giving you the fish eye or telling you to move along make you hasty. Keep going till the judge denies you relief.

"Incurable" or "Plain" Error

We've been talking about preservation of error: the doctrine that an appellate court will generally not overrule a trial court's ruling if the complaining party did not let the trial judge know at the time-- usually by objecting-- that the party thinks that the ruling was wrong. We've talked about one exception to this rule: that objecting that a trial court or a lower appellate court did not have jurisdiction over a matter may be objected to at any time. An objection to the present lack of jurisdiction over subject matter in the appeals court that one is before at the time does not need to be made to preserve error.
Appeals courts have, from time-to-time in the past, recognized "incurable" error (which is what Texas criminal practice calls it) or plain error (what the feds call it). These are errors that are so bad that they don't need to be preserved. They are plainly wrong and the judge knew or should have known that they were wrong and the harm was so bad it completely tainted the proceedings.
There probably still are some errors that are like that, for example, a judge's coming down from the bench to testify as a witness in a matter. That error would not likely be excused because none of the lawyers objected (They would likely be thunder-struck with disbelief.). Nor would the judge's granting a motion to strike such testimony and instructing the jury to disregard it cure the error.
Incurable error, as a practical matter, likely no longer exists. The granting of a motion for new trial would cure any error. That this is true will tell you how a trial lawyer ought to object to preserve trial error.

Subject Matter Jurisdiction Preservation of Error

I was told that it happened in Chicago, but the story is apocryphal. An obstreperous drunk disturbs the morning docket at the jail. The judge gets sufficiently angry to have the guy brought before him and he holds a quick trial which results in the defendant's getting the death penalty.
In a case like that, the trial court's lack of subject matter jurisdiction would not have to be preserved.
Subject matter jurisdiction is never presumed and cannot be waived. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 443-444 (Tex. 1993). If a trial or appellate court inappropriately takes up a matter it does not have the power to, that lack of authority can be brought up at any time.
Anybody's who's been to law school or hung out a lot with a person who's been to law school, knows that practically every legal rule has exceptions. We'll catch up on another exception next week.

Preservation of Error- General

Appeals courts generally don't let litigants complain about just anything in the trial below. (Why did I say "generally?" Because there is an important exception I'll talk about next week.) What the appellant complains about must not only be "error." It must be "preserved error."
Judges-- both on trial benches as well as appellate benches-- don't consider it sporting for a litigant to make a complaint about the trial, if the litigant did not tell the trial judge what the litigant thought was a mistake. Normally a litigant shows unhappiness with a particular matter by objecting. Generally, once a judge overrules an objection, that judge has been warned that the litigant might try to complain about that matter on appeal.
It is quite common for some judicial mistake to be just as plain as a pikestaff when the record is reviewed, only nothing can be done-- the lawyer did not recognize the error in the heat of battle.
The opposite of preserving error is "lying behind the log," a near-universal metaphor for a trial participant's holding knowledge of error during the trial, only to try to spring it on the trial judge on appeal.
Principles and pitfalls of preservation of error.: An article from: Florida Bar Journal

Hard Times for Appellate Lawyers

From the Texas Lawyer: "There are but two types of error in Texas appellate courts: waived and
harmless."- Chuck Lanehart

Does Your Trial Record Preserve Your Evidence Exclusion Error?

Continuing to reflect on whether or not you should do your trial client's own appeal, there's something extra to think about if you want to complain about evidence's being excluded at trial. Most of the time, if that's the kind of error you want to bring forward, an offer of proof must be in the record.
Here's the situation: trial counsel offers some evidence; the opponent objects and is sustained by the judge. Generally, if the first lawyer wants to complain on appeal about the exclusion, that lawyer must, outside the presence of the jury, put what the testimony would be on the record. Usually this is done by simply asking the questions and taking the testimony as if the objection had not been made. If the objected-to evidence is simple, the testimony may be offered, if the trial judge allows it, as a narrative, though this is disfavored. After the evidence is presented in the offer of proof, opposing counsel may withdraw the objection or the trial judge might change the ruling sustaining the objection. The offer doesn't have to made right away, but it does have to be made before the case is submitted to the fact-finder.
Evidence exclusion is not a very strong objection, because the standard of review is whether the ruling is in the sound discretion of the court. We'll talk about this more in subsequent posts.

For Carrying a Weapon, the Plain Statutory Language Is Not Enough

For defense counsel, a most promising source of reversible error is the jury charge. The trial judge in the case of Hernandez v. State, No. 14-08-00787-CR, (Tex. App.-- Houston [14th Dist.], Mar. 16, 2010, no pet. h.)refused a self-defense instruction, apparently because defendant-appellant Hernandez's handgun possession was illegal. The proposed jury instruction seems to be to be a gross oversimplification of the law. The opinion states that Hernandez was trying to recover property stolen from his employer by a third person. The opinion neither indicates nor claims that Hernandez's attempt was illegal or improper. It is the defense lawyer's duty to provide the trial court with an accurate statement of the law. This does not appear to have been done, and appears to render any error harmless, though it might be a basis for a writ.

The Main Real Lesson of Rouse v. State

A defendant pleads guilty without a plea bargain(an "open plea"). The crime: shoplifting that turned into a robbery. (The law used to be that if a shoplifter grabbed or pushed someone while leaving the store, that would be a misdemeanor theft, now it's a felony robbery.). The defendant used to have a good job, and has fallen into crime by becoming addicted to drugs. The defendant has priors. The lawyer was hired, not appointed.
The defendant is shocked to get prison time, real prison time, not probation or the substance-abuse punishment facility. " . . . I was misled," said the prisoner. The trial judge says, "I don't believe that's true."
Defense lawyer faxes the trial court coordinator a paper titled "Notice of Appeal" 31 days after sentencing,apparently stating that counsel had told the defendant that the plea could be withdrawn if the judge's sentence were harsher than the defendant would like and complaining- accurately- that the judge had been impermissably involved in plea bargaining. The appeal notice is not followed up. More than three-and-a-half years later, the defendant seeks, and gets, an out-of-time appeal. The opinion of the Austin Court of Appeals is assigned to retired presiding judge of the Court of Criminal Appeals John F. Onion, Jr., who reverses the trial court and remands the case to it.
Now this case can be said to be about the importance of filing a motion for new trial timely, having whatever evidence is necessary for it to be presented to the trial court . It is not, though. The trial court stated in the record that it did not believe the defendant's claim of having been misled. The trial judge had considered the defense argument, and disagreed. This trial judge was no prosecution whore. The trial judge was elected out of Austin and contributed to MoveOn.org back in the day
The trial judge really made a judgment about the situation at the beginning, knowing the circumstances and observing demeanor of the witness before him. Every appellate judge is, by comparison, a paper-shuffling latecomer to the situation.
If the motion for new trial had been OK, the Court of Criminal Appeals would likely have found some other reason to reverse.