|
I. OVERVIEW
|
7
|
|
II. JUDICIAL SURVEY OF COMMON MISTAKES, LIBRARY REFERENCES AND RECOMMENDED USES OF THE JURY CHARGE BEFORE AND DURING TRIAL
|
7
|
|
A. Judicial Survey on Common Mistakes
|
7
|
|
B. Library References
|
8
|
|
C. Recommended Uses of the Jury Charge Before and During Trial
|
8
|
|
III. EVOLUTION OF THE RULES GOVERNING JURY SUBMISSIONS
|
9
|
|
A. Background History
|
9
|
|
B. Proposed Rule Changes
|
9 |
|
IV. HOT TOPIC QUESTIONS
|
10 |
|
A. When is Broad Form Submission Not Feasible Under Casteel?
|
10 |
|
B. What is the Latest Word From the Supreme Court on Instructions?
|
12 |
|
C. How Do You Preserve Error and What Requires a Remand Versus a Rendering on Charge Errors Under Payne
|
13 |
|
D. What is the Family Law Application of the "Whenever Feasible" Requirement?
|
14 |
|
V. CHECKLIST FOR PRESERVATION OF ERROR IN THE COURT'S CHARGE
|
15 |
|
A. Court's Charge Functions as the Verdict
|
15 |
|
B. Three Kinds of Charges: Questions, Definitions, and Instructions
|
15 |
|
C. Three Kinds of Problem Charges: Omitted, Defective and Unnecessary Charges
|
15 |
|
D. "The Test" for Preservation of Error in the Charge Conference
|
15 |
|
E. Rules for Preserving Error
|
16 |
|
F. Step-By-Step Analysis
|
16 |
|
1. Omitted Questions (Yours)
|
16 |
|
2. Omitted Questions (Theirs)
|
16 |
|
3. Omitted Definitions and Instructions (Yours or Theirs)
|
17 |
|
4. Defective and Immaterial Questions, Definitions and Instructions (Yours or Theirs)
|
17 |
|
5. Limiting or Exclusionary Instructions
|
17 |
|
GETTING IT RIGHT
|
|
|
VI. PRE-TRIAL ORDERS - Tex. R. Civ. P. 166
|
18 |
|
VII. PLEADINGS - BLUEPRINT FOR THE CHARGE - Tex. R. Civ. P. 47, 278
|
18 |
|
VIII. FAIR NOTICE REQUIRED IN PLEADINGS - Tex. R. Civ. P. 47
|
18 |
|
A. Test of Fair Notice
|
18 |
|
B. Cannot be Surprised, Prejudiced or Misled by Evidence
|
18 |
|
C. Test for Fatal Variance
|
19 |
|
IX. TRIAL BY CONSENT - Tex. R. Civ. P. 67
|
19 |
|
A. Exceptional Cases Only
|
19 |
|
B. Evidentiary Stage
|
19 |
|
C. Charge Conference
|
19 |
|
D. Trial Amendment
|
19 |
|
E. Appellate Review
|
19 |
|
X. THE CHARGE CONFERENCE
|
19 |
|
A. Request and Tender Stage - Rules for Requesting Charges
|
19 |
|
1. Should Be in Writing
|
19 |
|
2. Should Separate Requests From Other Requests
|
19 |
|
3. Should Separate Requests From Objections
|
19 |
|
4. Requests Should Be Marked, Refused, Signed, and Filed
|
19 |
|
5. Must Present Before Submission
|
20 |
|
6. Must Be Raised by Pleadings and Evidence
|
20 |
|
7. Must Be Broad Form "Whenever Feasible
|
20 |
|
8. May Submit Multiple Grounds Within Question
|
21 |
|
9. Must Submit Ultimate/Controlling Questions Only
|
21 |
|
10. Omitted Claims or Defenses Are Waived
|
22 |
|
11. Omitted Elements of Claims or Defenses Are Deemed Found
|
22 |
|
12. Definitions and Instructions Act Only as Aids to Jury
|
22 |
|
13. Wide Discretion Given on Definitions and Instructions
|
22 |
|
14. Test for Abuse of Discretion on Definitions and Instructions
|
23 |
|
15. Presumption of Average Intelligence on the Jury
|
23 |
|
16. Must Only Define Words of Art
|
23 |
|
17. Must Submit Charge in Substantially Correct Form
|
23 |
|
18. "En Masse" Requests Must Not Be Confusing and Must Be Totally Correct
|
24 |
|
19. Must Predicate All Conditional Questions
|
24 |
|
20. Try to Keep It Simple
|
24 |
|
B. Objection Stage - Rules for Objecting to Charges
|
24 |
|
1. Must Object Before Submission
|
24 |
|
2. Must Make Objections Before the Court
|
25 |
|
3. Ruling Should Be Apparent
|
25 |
|
4. Purpose of Objecting Before Submission
|
25 |
|
5. Objections Must Be Distinct and Specific
|
25 |
|
6. Test: "Was the Court Fully Cognizant
|
25 |
|
7. Stock Objections
|
26 |
|
8. Obscured and Concealed Objections
|
26 |
|
9 Invited Error
|
26 |
|
10. Voluminous Objections
|
26 |
|
11. Laundry List Objections
|
26 |
|
12. Look at Entire Charge
|
27 |
|
13. Order of Submission
|
27 |
|
FIXING ANY ERRORS
|
|
|
XI. SPECIFIC AREAS OF OBJECTIONS
|
27 |
|
A. Objections to the Charge as a Whole
|
27 |
|
1. Charge Not Signed by the Judge
|
27 |
|
2. Charge Not Filed With the Clerk
|
27 |
|
3. Charge Not Presented to Counsel for Inspection
|
27 |
|
4. Reasonable Time Not Given
|
27 |
|
5. Reasonable Time Not Given
|
27 |
|
6. Charge Submits a Ground Which is Not a Basis for Recovery
|
28 |
|
B. Omitted Charges
|
28 |
|
1. If It Is the Proponent's Question
|
28 |
|
2. If It Is the Opponent's Question
|
28 |
|
3. All Definitions and Instructions, Proponent or Opponent
|
28 |
|
C. Defective Questions
|
28 |
|
1. No Pleadings
|
28 |
|
2. No Evidence
|
28 |
|
3. Variance Between Pleading and Proof
|
28 |
|
4. Duplicative Questions
|
29 |
|
5. Shades and Phases
|
29 |
|
6. Burden of Proof Not Placed on Either Party
|
29 |
|
7. Burden of Proof Improperly Placed on the Wrong Party
|
29 |
|
8. Comment on the Weight of the Evidence
|
29 |
|
9. Advises the Jury of the Effect of the Answer
|
29 |
|
10. Disjunctive Submission
|
30 |
|
11. Not an Ultimate Question Controlling the Disposition of the Case
|
30 |
|
12. Inferential Rebuttal Question
|
30 |
|
13. Uncontroverted Question
|
30 |
|
14. Immaterial Question
|
31 |
|
15. Questions Permitting a Double Recovery
|
31 |
|
16. Assumes Material Controverted Facts
|
31 |
|
17. No Predication or Improper Predication
|
31 |
|
18. Questions of Law
|
32 |
|
D. Defective Definitions and Instructions
|
32 |
|
1. Misstates the Law/Misleads the Jury
|
32 |
|
2. Inclusion of Instruction
|
33 |
|
3. No Pleadings
|
33 |
|
E. Immaterial, Unnecessary or Superfluous Charges
|
33 |
|
XII. APPELLATE REVIEW
|
33 |
|
A. Standard of Review - Abuse of Discretion
|
33 |
|
B. Trial Court's Requirements
|
34 |
|
C. Test for Abuse of Discretion
|
34 |
|
D. Test for Reversal
|
34 |
|
E. Reversal: Remand or Rendition
|
34 |
|
APPENDIX 1 - PRESERVATION OF ERROR/COURT'S CHARGE CHECKLIST
|
36 |
|
APPENDIX 2 - FORMS FOR SPECIFIC OBJECTIONS
|
38 |
|
TABLE OF AUTHORITIES
|
41 |
