D. Todd Smith's slide deck from his recent talk on jury charges in commercial cases.

1. Jury Charges
in Commercial Cases
D. Todd Smith
Austin • Rio Grande Valley
www.appealsplus.com

2. Introduction
• The right of a defendant to be “judged by a jury properly instructed in
the law” is “fundamental to our system of justice.” [Casteel].
• Yet, Texas charge practice has been described as a procedural “tangle
of perplexities” and a “labyrinth daunting to the most experienced
trial lawyer.” [Payne].
• The “passage of time has not improved things.” [Payne (C.J. Hecht)].
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3. Jury Charge Fundamentals
• Made up of questions, definitions, and instructions. [TRCP 273].
• Refused or modified instructions, questions, or definitions—when so
endorsed by the court—constitute a bill of exception. [TRCP 276].
• Court may only submit questions, instructions, and definitions that
are raised by the written pleadings and evidence. [TRCP 278].
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4. Jury Charge Fundamentals
• But parties are generally not entitled to submission of any question
raised only by a general denial and not raised by affirmative written
pleading. [TRCP 278].
• Charge must be read to the jury by the trial court in the “precise
words in which it was written, including all questions, definitions, and
instructions which the court may give.” [TRCP 275].
• Charges must be written, signed by the trial court, filed with the clerk,
and made a part of the record. [TRCP 272].
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5. Goals in Charge Practice
• Create a roadmap for discovery and case strategy
• Ensure submission of theories and defenses raised by pleadings and
evidence
• Correctly instruct the jury on the law
• Allow for advocacy when appropriate—i.e., when the law isn’t clear
• Preserve error for appeal
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6. Roadmapping
• “Begin with the end in mind.” –Stephen Covey
• Preparing a draft charge early helps guide strategy throughout the
case.
• Focuses attention on exactly what must be proved or disproved.
• Allow counsel to make adjustments to evidence or theories.
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7. Where Do You Start?
• Live pleadings—match theories and defenses between parties
• Summary-judgment or other pre-trial briefing
• Court rulings affecting the theories to be submitted.
• Pattern Jury Charges
• Previous charges from your trial judge
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8. A Note About the PJCs
• Each volume is updated every two years. A new Business volume is
due in 2016 that will cover the Texas Uniform Trade Secrets Act for
the first time.
• Great for general format and admonitory instructions.
• Good for settled areas, but not authoritative.
• When drafting, you’ll often need to delve into statutes and case law,
particularly when the PJCs don’t specifically cover your topic.
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9. Transition from Special Issues to Broad Form
Understanding Texas jury charge practice, requires
understanding its history.
• Before 1973: Granulated, special-issue charge submission
prevailed in Texas. Required submission of “‘each issue,
distinctly and separately, avoiding all intermingling.’”
• In 1973, SCOTX expressed a “preference for” broad-form jury
submission by revising TRCP 277 to allow trial courts the
discretion whether to submit “‘separate questions with respect
to each element of a case or to submit issues broadly.’”
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10. Transition from Special Issues to Broad Form
• Broad-form submission was favored because of its ability to:
1. Reduce conflicting jury answers;
2. Reduce appeals;
3. Avoid retrials;
4. Expedite trials by simplifying charge and charge conference; and
5. Make questions easier for the jury to comprehend and answer.
• In 1984, SCOTX CJ Pope wrote: “Judicial history teaches that broad
issues and accepted definitions suffice and that a workable jury
system demands strict adherence to simplicity in jury charges.” [Lemos].
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11. Transition from Special Issues to Broad Form
• March toward broad-form submission culminated in 1988 with
further amendments to TRCP 277 affirmatively requiring broad-form
submission “whenever feasible.”
• Submission whenever feasible means “[u]nless extraordinary
circumstances exist,” and “in any or every instance in which it is
capable of being accomplished.” [E.B.]
• Today, Casteel and its progeny have signposted the unfeasible
situations noted in TRCP 277 where deviation from broad-form
submission is allowed.
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12. Broad-Form Problems: Commingling Valid and
Invalid Liability Theories in One Question (Casteel)
• Over D’s objection, jury charge combined 13 liability theories—
some of which were improper—into a single question.
• Possible the jury based its liability finding solely on one or more
of the erroneously submitted theories.
• Impossible for the Court to conclude that the jury’s answer was
not based on one of the improperly submitted theories.
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13. Broad-Form Problems: Commingling Valid and
Invalid Liability Theories in One Question (Casteel)
• SCOTX: A trial court errs by submitting a single broad form liability
question incorporating multiple theories of liability when one or more
theories is invalid and the appellate court cannot determine whether
the jury based its verdict on an improperly submitted invalid theory.
• In this situation, harm is presumed, and a new trial is required.
• “When the trial court is unsure whether it should submit a particular
theory of liability, separating liability theories best serves the policy of
judicial economy underlying Rule 277 by avoiding the need for a new
trial when the basis for liability cannot be determined.”
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14. Broad-Form Problems: Lump-Sum Damages When
One Element Lacks Evidence (Harris County)
• Trial court submitted two broad-form damage questions, each
instructing the jury to consider several elements and award a
single lump-sum amount. Defendant objected that one element
in each question was supported by no evidence.
• SCOTX: Commingling valid and invalid damage elements in a
single, broad-form submission was harmful because it
prevented the reviewing court from determining whether
the jury based its verdict on an improperly submitted invalid
element of damage.
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15. Broad-Form Problems: Fault Allocation When
One Liability Theory Lacks Evidence (Romero)
• Over D’s objection, trial court submitted two liability questions—
negligence and malicious credentialing—leading to one fault-
allocation question. The jury was told to consider the hospital’s
liability under both theories when apportioning responsibility.
• SCOTX: No evidence of malicious credentialing.
• But couldn’t the jury have made the same apportionment of fault
without that theory?
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16. Romero: Fault Allocation When One Liability
Theory Lacks Legally Sufficient Evidence
• SCOTX: The “jury is as misled by the inclusion of a claim without
evidentiary support as by a legally erroneous instruction.”
• If the jury must consider an invalid liability theory or
unsupported damage element, the error is reversible unless the
reviewing court is reasonably certain that the jury was not
significantly influenced by the issues erroneously submitted.
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17. Further Expansion of Casteel Has Been Limited
• SCOTX has considered two cases involving inferential rebuttal
theories. [Urista and Thota].
• Inferential rebuttals are not alternative theories of liability, but
involve disproving an element of a claim or affirmative defense.
• When a broad-form question submits only a single liability
theory, Casteel’s multiple-liability-theory analysis does not apply.
• No presumed harm in this situation.
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18. The Casteel Line’s Effect on Broad Form
• Before Casteel, Texas courts examining charge submissions did
not presume error, but applied the “harmless error rule.”
• Following the Casteel line of cases, harm is presumed when the
court can’t determine “whether the jury based its verdict solely
on [an] improperly submitted invalid theory or damage element.”
• In other words, the error “probably prevented the appellant from
properly presenting the case to the court of appeals.”
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19. The Casteel Line’s Effect on Broad Form
• The best a reviewing court can do in such instances is “determine
that some evidence could have supported the jury’s conclusion
on a legally valid theory.”
• But doing so “would allow a defendant to be held liable without
a judicial determination that a factfinder actually found that the
defendant should be held liable on proper, legal grounds.”
• Therefore, “broad-form submission cannot be used to put before
the jury issues that have no basis in the law or the evidence.”
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20. Strategic Considerations Post-Casteel
• Submitting alternate liability standards when the law is unsettled
could be a situation in which broad form is not feasible.
• Combining legal theories—claims or defenses—into a single
question opens the door to reversal if the validity of one claim or
defense is questionable.
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21. Strategic Considerations Post-Casteel
• When relying on a novel theory, a litigant may need to consider:
1. Requesting that the claim be included with others and run
the risk of reversal and a new trial;
2. Requesting that the claim be submitted separately to avoid
that risk; or
3. Abandoning the claim altogether.
• Consider alternatives to broad form whenever a no-evidence
objection is made to a charge that includes multiple elements or
theories.
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22. Common Charge Errors
• Submitted defective question, definition, or instruction—i.e., one
that incorrectly states the law.
• Omitted question—i.e., leaving out an entire liability theory.
• Omitted definition or instruction.
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23. Error Preservation—How?
• Charge error is generally preserved by objections and requests.
• Objections can be made in writing or dictated to the court
reporter at the formal charge conference. They must point out
distinctly the objectionable matter and grounds. [TRCP 272, 274].
• Requests must be made separate and apart from any objections.
They must be in writing and in substantially correct (not
affirmatively incorrect) form. [TRCP 276, 278].
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24. Error Preservation—How?
• Submitted defective question, definition, or instruction:
Object. Affirmative errors in the charge must be preserved by objection, regardless of
which party has the burden of proof.
• Omitted question
Question relied on by party complaining about judgment: Object and Request
Question relied on by party opposing judgment: Object
• Omitted definition or instruction.
Object and Request without regard to which party has the burden of proof.
• When in doubt, do both.
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25. Error Preservation—How?
• Rulings on objections may be oral or in writing. [TRCP 272].
• Rulings on requests must be in writing and must indicate
whether the court refused, granted, or granted but modified the
request. [TRCP 276].
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26. Error Preservation—When?
• Objections must be made before the charge is read to the jury.
• The parties must receive the final charge and be given a
”reasonable time” to examine it and present objections outside
the jury’s presence. [TRCP 272].
• Sounds simple enough...
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27. Error Preservation—When?
• In 2015, SCOTX held that a response to a pretrial motion was
sufficient to preserve error on a spoliation instruction when no
objection was made to the charge. [Wackenhut].
• SCOTX quoted familiar language from Payne: “There should be
but one test for determining if a party has preserved error in the
jury charge,”—”the party made the trial court aware of the
complaint, timely and plainly, and obtained a ruling.”
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28. Error Preservation—When?
• In 2014, SCOTX upheld a trial court’s discretion to set a deadline
for making charge objections and requests well before the charge
was read to jury. [King Fisher].
• SCOTX decision turned on whether the objecting party had a
“reasonable time” to review the charge under TRCP 272.
• So, comply with any deadline the trial court sets for making
objections and requests, and if not reasonable, object.
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29. Why Is Preserving Charge Error So Important?
• If error is not preserved, sufficiency of the evidence will be
judged against the charge actually submitted, not some
theoretically correct charge.
• If an entire ground of recovery or defense is not submitted to the
jury and error is not preserved, the ground is entirely waived
unless conclusively established by the evidence.
• Omitted findings may be deemed in favor of the judgment.
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30. Common Mistakes That May Result in Waiver
• Failing to make charge objections on the record. [TRCP 272].
• Failing to make charge objections before the earlier of:
1. A reasonable deadline set by the trial court [King Fisher]; or
2. The reading of the charge to the jury [TRCP 272].
• Making objections on the record while the jury is deliberating,
even by agreement and with court approval. [TRCP 272].
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31. Common Mistakes That May Result in Waiver
• Failing to submit requests in writing. [TRCP 278].
• Failing to make requests separately from objections to the charge.
[TRCP 273.]
• Offering requests “en masse”—that is, tendering a complete charge
or obscuring a proper request among unfounded or meritless
requests. [TRCP 274.]
• Failing to file with the clerk all requests that the court has marked
“refused.” [TRCP 276].
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32. Common Mistakes That May Result in Waiver
• Adopting by reference objections to other portions of the court’s
charge. [TRCP 274].
• Dictating objections to the court reporter in the judge’s absence. [TRCP
272].
• Relying on or adopting another party’s objections to the court’s
charge without obtaining court approval to do so beforehand. [TRCP
274].
• Failing to obtain a ruling on an objection or request. [Thota].
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33. Jury Charges
in Commercial Cases
D. Todd Smith
Austin • Rio Grande Valley
www.appealsplus.com