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Equal-inference Rule
If the only evidence is meager circumstantial evidence, and can give rise to multiple inferences, then that meager circumstantial evidence is no evidence at all
Preserving Error on Appeal
Objection (must be (1) timely and (2) specific) + Ruling = Preservation of Error Must be a ruling Must be on the record Cannot appeal on error if judge sustained that lawyer's objection; only way to preserve error after sustained objection is if the lawyer moves for a mistrial, and the judge denies the motion
Default Judgment
Purpose. A default judgment permits the trial court to render judgment for the plaintiff on its petition without a trial. Only a plaintiff is entitled to a default judgment; a default judgment cannot be rendered for a defendant on the merits of its answer. I. Two types: (1) No-answer default (2) Post-answer default
No-Answer Default Judgment
I. A no-answer default judgment can be rendered when the defendant does not file an answer. II. The answer date is on or before 10:00 am the Monday next following the expiration of 20 days. If the 20th day is a Monday, then it's the Monday after.
Four kinds of summary judgment
1. Plaintiff files MSJ on own case -- plaintiff has to conclusively prove all elements of claim 2. Plaintiff files MSJ on defendant's counterclaim -- plaintiff has to disprove one element of defendant's affirmative defense 3. Defendant files MSJ on own counterclaim -- defendant has to conclusively prove all elements of affirmative defense 4. Defendant files MSJ against plaintiff on plaintiff's claim -- defendant has to disprove at least one element of plaintiff's claim
No-Evidence Motion for Summary Judgment
I. Can only be filed against a party that has the burden of proof at trial (usually the defendant). II. The burden of proof is on the non-moving party instead of traditional MSJ where the movant has the burden of proof. Non-moving party has to provide some evidence for court to deny motion.
I. Settlement usually involves one party giving compensation and the other party giving releases; sometimes both parties give releases. II. Release: the giving up of a cause of action. III. In TX, unless a party is named in the release with reasonable certainty, then that party is not released.
Stowers Doctrine (Settlement)
If a plaintiff makes a demand within policy limits and the insurance company rejects it, then if the case goes to jury trial and the jury renders a damage amount in excess of the insurance limit, then the insurance company has to pay the limit plus the excess amount
Mary Carter Agreement
Example: A situation where A sues B and C. Claim is for $1,000,000. Before trial, A settles with B for $100,000, but neither party informs the court or C. B shows up to trial, testifies against C. Jury renders high damages on C. A gives B $100,000 rebate from damages received from C. I. TX courts have judged MC agreements void and a fraud on the court.
Offer-of-Settlement Rule
I. Allows a party to shift attorneys' fees to other party if once the rule is invoked: (1) an offer by the defendant is rejected, and turns out to be less than 80% of the actual jury verdict; or (2) if the offer by the plaintiff is rejected, and turns out to be greater than 120% of the actual jury verdict. II. Must wait at least 60 days after defendant appears before the Rule can be invoked. III. Must be invoked at least 45 days before trial. IV. Deadline to make an offer is 14 days before trial.
Pretrial Conference
I. Purpose: narrowing issues, disposing of pretrial matters (legal issues, dispose of uncontested issues of fact, pending motions, admissibility of evidence) II. Scheduled in one of two ways: (1) by court (2) attorneys can request, but court doesn't have to give you one III. Order on Pretrial Conference: (a) must be in writing, (b) must specify the actions taken and rulings made at the pretrial conference, (c) must give parties notice of pretrial or docket-control order
Request for a Jury Trial
I. Deadline to file jury request: 45 days' notice of the first trial setting so that a party can make a timely request for a jury trial II. In civil cases, a party has to invoke the right to a jury trial -- at least 30 days in advance. Within 30 days -- judge's discretion.
Motions for Severance & Separate Trials
I. Purpose. The rules permit a court to divide a lawsuit into separate lawsuits or separate parts. II. Distinction between motions for severance & for separate trials: (Severance) When a court grants a motion for severance, it divides a lawsuit into two or more independent lawsuits, each of which will terminate with a separate, final, enforceable, and appealable judgment. (Separate trials/bifurcation) When the court orders separate trials, the court divides the case into two or more parts, which are tried separately to the same jury and resolved by one final judgment.
Motion for Severance
I. Motion: (a) not interwoven; the severed cause is not so interwoven with the remaining action that it involves the same facts and issues; (b) for justice; granting the motion to sever will do justice, avoid prejudice, and further the convenience of the parties and the court. II. Severance is not permitted: (1) indivisible injury; the court cannot sever claims against several defendants when the injury is indivisible; (2) dividing a cause of action; the court cannot sever a single cause of action into multiple claims; (3) compulsory counterclaim; the court cannot sever a compulsory counterclaim that arises from the same transaction or occurrence as the issue in the main suit; (4) prejudice; the court cannot sever a case if separate trials of the claims would prejudice one of the parties.
Motion to Bifurcate Exemplary Damages
I. Defendant's motion. Only the defendant may move to bifurcate the issue of exemplary damages from the suit. II. Deadline. The defendant must make a motion to bifurcate the trial before the voir dire examination of the jury or the time specified in a pretrial order. III. Plaintiff's burden. (1) Preponderance of the evidence. The Phase I issues of liability for and the amount of actual damages must be decided by a preponderance of the evidence. (2) Clear & convincing evidence. The Phase I issue of liability for exemplary damages and the Phase 2 issue of the amount of exemplary damages must be decided by clear and convincing evidence. To decide liability, the plaintiff must prove in Phase 1 that the harm for which it seeks recovery of exemplary damages resulted from fraud, malice, or gross negligence. (3) Actual, not nominal, damages. Nominal damages are not sufficient to support an award of exemplary damages. 4. Unanimous jury. The jury must render a unanimous verdict on liability for and the amount of exemplary damages.
Motion to Amend Pleadings -- Pretrial
I. Purpose. A party amends its pleadings to correct errors and defects in the pleadings. Amendments should be freely allowed unless it is prejudicial or a surprise to opposing party; if amending party has been "slacking off," but not prejudicial or a surprise, then the court should grant a continuance. II. Leave to amend required. A party must secure leave of court to amend pleadings in the following instances: (1) after deadline in pretrial order. (2) less than seven days before trial. (a) Procedural change. If a change to the pleading is merely procedural and does not change any substantive issues in the trial, the court must permit the amendment. (b) Substantive change. If a change to the pleading is substantive and changes the nature of the trial, the trial judge has discretion to deny leave to amend. (c) Less than 45 days before trial. If an amendment changes a case from a Level 1 discovery-control plan to a Level 2 or 3 plan and is filed less than 45 days before trial, the party must file a motion for leave to amend, showing that good cause to file the pleading outweighs any prejudice to the other party.
A subpoena: (a) is a writ; (b) commands a person to appear and give testimony, or order a person to produce or permit inspection and copying documents or other tangible things. (c) Two types: trial subpoena and discovery subpoena. (d) 100-mile subpoena rule: anyone who lives or can be found within 100 miles of the border of the county in which the courthouse resides. (e) If a person fails to show after being subpoenaed, then the court can issue a writ of attachment; person can be held in contempt of court.
A continuance: (a) is a postponement (b) supported by verified facts (not conclusions) (c) no timing requirement (d) demonstrate diligence in motion
In Limine Motions
In Limine Motions: (a) used to prevent potentially damaging evidence (even if likely inadmissible anyways) from being presented at trial; (b) allows the court to decide whether the jury will be able to hear evidence; (c) best timing is right before voir dire; (d) order has to be in writing; (e) motion should be in writing, does not have to be; (f) violating the order -- attorney can be held in contempt, attorney can be sanctioned, judge can order mistrial; (g) no standard of review because you cannot appeal a court's ruling on a motion in limine.
Motion to Challenge the Judge
I. A judge may be removed from a case for one of three reasons: (1) she is subject to a statutory strike as an assigned judge, (2) she is constitutionally disqualified, or (3) she is recused under rules promulgated by the Supreme Court. II. Purpose. A motion to challenge the trial judge seeks to remove the judge from the case so another judge can be assigned to preside over the case. III. Four types of challenges to the trial judge: (1) Objection to assigned judges. An objection to an assigned judge is a peremptory challenge that, if timely made, results in the automatic removal of the assigned judge. (2) Motion to disqualify. A motion to disqualify seeks to prevent a judge from hearing a case for a constitutional or statutory reason. (3) Motion to recuse. A motion to recuse seeks to prevent a judge from hearing a case for a nonconstitutional reason. (4) Tertiary motion to recuse. The third (or later) motion to recuse or disqualify a judge in the same case by the same party is called a "tertiary" motion.
Motion to Recuse or Disqualify
I. Applies to active, non-active, or defeated judges. II. Must state a reason within the rules. III. Deadline to file. A motion to recuse must be filed at least 10 days before the date set for the trial or other hearing. (1) Late motion to recuse. A movant can file a motion to recuse after the 10-day deadline only if the movant learns of the reason for recusal after that deadline and files the motion immediately after learning of the reason. (2) Late motion to disqualify. A motion to disqualify based on a constitutional ground can be presented at any time; the motion is not limited by the 10-day deadline. (3) After remand. When a case is reversed for retrial, the parties may make a motion to recuse after remand.
Recusal -- Grounds for Disqualification
I. When the judge's interest can be "reasonably questioned." II. Judge has a financial interest in the case. Mutual funds do not count as disqualifiers. III. Judge served as a lawyer on either side of the case. IV. Judge has demonstrated bias. V. Judge is related within the third degree to one of the parties (attorneys not included). VI. Judge is related within the first degree to one of the attorneys.
Jury Panels: Strike Zone/Shuffle
I. Strike Zone: add all possible strikes to number of jury members; i.e., 6(D1)+6(D2)+12(P) = 24, first 24 fall within strike zone without consideration to challenges for cause II. Shuffle (adjust having too many bad jurors within the strike zone) Can only shuffle before voir dire begins; voir dire begins once first question has been asked and answered of a potential juror; can only shuffle once per case
Jury Selection -- Equalizing Strikes
I. Parties on the same side, but antagonistic to each other, will get their strikes equalized as opposed to being limited to 6 or 3 strikes II. In order to reallocate the strikes, a motion to reallocate is made before voir dire, if the court finds that the parties are antagonistic, then the court grants those parties extra strikes III. Equalizing the strikes does not necessarily mean granting all parties the same amount of strikes; i.e., 1 P gets 6 strikes, 4 Ds get 24 strikes -> 4:1 ratio is excessive; 2:1 ratio is ok
Batson Challenge
I. Citizens have a constitutional right to serve on a jury, and that right is violated if the juror is struck for race, ethnicity, and gender II. Applies to peremptory strikes, not shuffles III. Once the jury has been sworn in, a Batson challenge is too late IV. Procedure: If one party believes the other party used its peremptory strikes in a discriminatory manner, the Batson-movant should follow the three-step procedure: (1) Movant makes prima facie case; (2) Respondent offers neutral explanation. If race, gender, or ethnicity play any part at all in the explanation, then the explanation is invalid; (3) Court analyzes arguments. V. If Batson challenge upheld then those jurors eliminated improperly can be reinstated.
Opening Statement
I. Purpose. Immediately after the jury is impaneled, the parties make opening statements in which they briefly tell the jury the nature of their claims or defenses, the relief sought, and what they expect to prove. Assertions made during opening argument are not evidence and are not judicial admissions. II. The rule - P goes first. The party with the burden of proof on the whole case has the right to make the first opening statement to the jury. Even if the plaintiff has only one question that goes to the jury, the plaintiff goes first. III. Rules for opening statements. (1) Brief. The parties must briefly state to the jury the nature of their claims or defenses, what they expect to prove, and the relief they seek. (2) No details. The parties may not detail the evidence by naming witnesses they intend to call and outlining the substance of their expected testimony. (3) No display. The parties may not read from, describe, or display documents or photographs to the jury.
Leading Questions
I. A question that suggests the desired answer. II. Should not be used on direct examination, except as necessary to develop the case. III. Can be used on direct examination if witness is adverse or hostile. Adverse = status; hostile = attitude. IV. Permitted on cross-examination except if cross-examination is on friendly witnesses, i.e., your client V. Permitted on child witnesses
I. Can use both a witness's deposition and his live testimony in trial. II. Can use a witness's deposition in trial only if witness is unavailable. III. Unavailability means: lack of memory, refusal to testify in court, if witness is exercising a privilege, witness is dead, etc. IV. Witness is given the opportunity during deposition to correct statements made V. A witness cannot keep their deposition from being admitted by not signing it
Request for Admissions
I. Questions usually admitted to or denied. II. If suing a corporation, RAs must be served on entity, not on a specific person III. 6 possible ways to respond: (1) Admit (2) Deny (3) Set forth in detail why they cannot admit or deny (4) Object (5) Assert a privilege (6) No response - deemed admitted IV. Once RA question has been admitted, the answer is now a fact as a matter of law; no evidence can be admitted to the contrary -- though can ask to withdraw answer if good cause is shown
I. Questions that are asked to a party that requires written answers II. Answer given under oath III. Primary purpose is to find out what the other party knows IV. Can ask for factual contentions, legal theories, description of facts, identify documents V. Cannot ask about experts -- done in requests for discovery VI. Cannot require them to give everything you are going to present at trial VII. Limited to 25 interrogatories VIII. Can only use the answers against the parties that answered them IX. Ongoing duty to supplement response if answers change X. Not conclusive evidence XI. In trial, can only use interrogatory against the party that answered it XII. Denials in interrogatories cannot be used in trial
Requests for Disclosures
I. Treated very much like interrogatories II. Pre-approved by the Rules -- can only ask those questions III. Ongoing duty to supplement any changes IV. Can only use the answers against the parties that answered them V. Not conclusive evidence
Expert Testimony -- Dogbert Test
To be admissible at trial, expert has to be: (1) Qualified, (2) reliable, and (3) relevant
Expert Testimony -- Robinson Test
To be admissible at trial, the court weighs 6 factors: (1) Theory can or has been tested, (2) technique relies on subjectivity, (3) theory has been subject to peer review (4) potential for error (5) accepted by relevant community (6) non-judicial uses that this technique has.
Bill of Exception/Offer of Proof (informal bill)
I. When evidence is excluded from the record during trial, party should offer of proof the evidence so the evidence can be presented on appeal II. Documents in offer of proof are marked differently from admitted documents III. Witness testimony in offer of proof can be heard outside of the jury; opposing party is allowed to cross-examine IV. Deadline. Before the charge is read to the jury. V. If judge refuses to let the attorney make a bill of exception, it is both harm and error that results in reversal.
Formal Bill
I. Done in writing after trial; supplements the record; requirements: (1) in writing, (2) be specific as to what occurred, (3) present it to the judge and opposing party; if opposing party agrees to what's in the writing, then the judge has to put the bill on file; if opposing party disagrees as to what's in the writing, then the judge has discretion whether to put the bill on file; if judge does not supplement the formal bill to the record, then there will be a hearing II. Deadline. 30 days after judgment.
Motion for Directed Verdict/Instructed Verdict
I. Purpose. The motion for directed verdict is a procedural device to ask the court to render judgment without submitting the charge to the jury because there is nothing for the jury to decide. II. Who Can Make the Motion & When. 1. After the plaintiff rests the defendant may make a motion for DV. 2. After the defendant rests, either party may make a motion for DV. 3. After both sides close, either party may make a motion for DV. 4. If the jury is unable to reach verdict, the court may consider one of the party's motions for DV. 5. On the court's motion. 6. On the pleadings. III. Grounds for DV. 1. No evidence. 2. Conclusive evidence. 3. Defect in pleadings.
Motion to Reopen for Additional Evidence
I. Purpose. A party should move to reopen the evidence when it is necessary to include additional evidence in the record. II. Grounds. When asking the court to reopen, the party should show all of the following: Diligence; Decisive evidence; No undue delay; No injustice. III. Standard: A trial court should permit a party to reopen the evidence when it clearly appears necessary to the administration of justice. IV. Deadline: After the jury returns the verdict, the court cannot admit evidence on a controversial matter.
Motion to Amend Pleadings - Trial & Post-trial
I. Purpose. A party amends its pleadings to correct errors and defects, to add or delete claims or defenses, and to conform the pleadings to the evidence. II. The only time the court may refuse to permit an amendment is when the party opposing the amendment objects and presents evidence of surprise or prejudice, or shows the amendment presents a new cause of action or defense and thus is prejudicial on its face. III. Grounds. 1. Amendment to correct procedural defects. 2. Amendments to add allegations.
The Charge, Special Issue Charge
I. Opposite end of the spectrum from the general charge, the jury is asked to find separate findings for every element of the charge. II. If there is a question as to the specifics on the damages, the court should give a special issue charge.
The Charge, Miscellaneous Info
I. Jury instructions should be given in almost every case, the jury needs to be explained the law. II. It is error to include jury-instruction surplus because it could nudge the jury one way or the other III. Questions should be structured so that "yes" answers benefit the plaintiff. IV. If a question is not "yes or no" then the question should be based on the preponderance of the evidence. V. No direct comments on the effect of the answers VI. Must properly place the burden of proof.
The Charge
I. Purpose. The charge is the collection of questions, definitions, and instructions the court submits to the jury to resolve the factual disputes in the case. It is the trial court's responsibility to submit a proper charge. II. Preparing a Draft. a. Each party should have prepared a complete version of the charge before engaging in discovery. b. Broad-form submissions must be used whenever feasible. A broad-form submission is not always feasible when the governing law is unsettled or when there is doubt about the legal sufficiency of the evidence.
The Charge, Formal Charge Conference
I. Assume that everything will be denied, because it probably would have been at the informal charge conference. II. Judge will inquire as to why you are just now bringing up material that should have been raised at the informal charge conference. III. Deadline to object & request. a. The parties must make all objections and requests to amend the language of the charge before the court reads the charge to the jury. b. Exceptions: 1. It is not necessary to challenge the legal sufficiency of the evidence before the charge is submitted to the jury. A legal-sufficiency challenge can be made for the first time in a motion for JNOV or in a motion for new trial.
Preserving Error, Where Objection & Ruling Alone Will Not Preserve Error
1. Challenges for cause 2. Batson challenge 3. Limiting instructions 4. Motions in limine
The Charge, Preserving Error on Limiting Instructions
I. Who is relying on the instruction/definition? 1. You, judge is omitting it -> make a request for submission 2. You, judge is defectively making it -> objection 3. You, judge omitted instruction/definition -> make a request for submission and objection 4. You, judge is making defective instruction/definition -> objection (no R/S) 5. Your opponent, judge is omitting it -> R/S or objection 6. Your opponent, judge is defectively making it -> objection 7. Your opponent, judge omitted instruction/definition -> objection and R/S 8. Your opponent, judge is making defective instruction/definition -> objection (no R/S) 9. When in doubt, make a R/S and object
The Charge, Hung Jury
I. When the jury has been kept together so long as to make it improbable that they will not come to a verdict, the court can declare a hung jury II. If calamity or accident requires a discharge (e.g. 9/11) III. If the jury says they're hung, and the parties agree, then the judge can declare a hung jury a. The judge can alternatively "urge" the jury to come to a verdict (aka Allen charge/Dynamite charge), but the court cannot "coerce" a verdict b. Cannot give multiple Allen charges IV. If multiple Allen charges are given, or the court is being "coercive" the parties should object
Final Argument
I. Purpose. After all the evidence is introduced, the attorneys summarize their case to the jury and argue the effect of the evidence. II. Attorneys may argue: 1. Questions of fact. 2. Inferences from the facts. 3. Fair criticism 4. Effect of answer under evidence III. Attorneys may not argue: 1. Questions of law. 2. Legal effect of answer. 3. Outside the record. 4. Matters covered by order in limine. 5. Personal criticism. I. If plaintiff fails to raise damages in opening argument, the opposing attorney should object "failure to fully open" -- the court can restrict the plaintiff to not arguing damages or allow the plaintiff more time to open II. If plaintiffs leaves out one or more full causes of action, the opposing attorney should object "failure to fully open"
Motion for New Trial Based on Jury or Bailiff Misconduct
I. Misconduct. Four types of misconduct: 1. Jury misconduct during deliberations. 2. Bailiff misconduct 3. An unauthorized communication to the jury 4. An incorrect, material juror answer on voir dire II. Unanimous verdict required if only 9 jurors left on panel III. Unanimous verdict required on punitive damages IV. Either attorney can ask judge to go through and poll all the jurors as to their answers to determine validity of the verdict
Settlement Defendant
A defendant that has already settled and paid value to get out of the lawsuit; nonsettling defendant(s) can prove that plaintiff has already settled as to a portion of the damages; plaintiff can in turn show that the settlement does not offset or contribute to the nonsettling defendant(s) damages
Contribution Defendant
Example: Plaintiff sues defendant, defendant thinks its someone else who is liable, defendant brings the "contribution defendant" into the lawsuit
20/90 Day Rule
I. If clerk fails to send out judgment notice, and an attorney finds out between 20 and 90 days after judgment is signed, the attorney can motion for a deemed judgment and if the judge grants it, then the judgment is treated as signed on the day the attorney finally found out; allows attorney a 2nd chance to appeal a. After 90 days, if the attorney finds out about the judgment, its too late II. Other than the 20/90 Day Rule, the judge cannot by order extend its plenary power over the case; other mechanisms are in place to extend plenary power over the case
Settlement Credits Under Proportionate Responsibility
I. Settlement of Credits. In most cases (not medical-malpractice cases), if the plaintiff settles with one or more persons, only one type of settlement credit applies -- a dollar-for-dollar credit. In medical-malpractice cases, the defendants can elect which type of settlement credit applies -- either a dollar-for-dollar credit or a percentage credit. II. One-satisfaction Rule. The one-satisfaction rule provides that a party is entitled to recover damages only once for a single injury. The rule prevents a party from recovering more than the amount required for the full satisfaction of its damages.
The Judgment, 3 Ways to Make a Judgment Final
1. Dispose of all parties and claims 2. Sever out an interlocutory judgment 3. Use finality language
Motion for JNOV
I. Purpose. A motion for judgment notwithstanding the verdict and a motion to disregard a jury answer both ask the trial court to disregard all or some of the jury's answer to the jury questions and to render judgment for the movant. II. Grounds. 1. Whenever a directed verdict would have been proper. 2. No evidence. 3. Conclusive evidence. 4. Legal bar. 5. Immaterial jury finding.
Plenary Power
I. Judge retains plenary power over case 30 days after judgment is signed, unless extended a. Judge cannot extend his own plenary power by a sua sponte order b. 20/90 Day Rule II. Motions that extend plenary power: 1. A MNT 2. A motion to reinstate (filed after voluntary dismissal 3. A motion to modify, correct, or reform the judgment 4. A motion for sanctions III. Motion that do NOT extend plenary power 1. Requests for Findings of Fact 2. Unverified motion to reinstate 3. Motion to enforce judgment 4. Motion for Judgment Nunc Pro Tunc IV. Can have more than one plenary power extending motion
Motion for Judgment Nunc Pro Tunc
I. Purpose. The purpose of a judgment nunc pro tunc is to correct a clerical error in the judgment after the court's plenary power has expired. II. Grounds. 1. Clerical error. A clerical error is a discrepancy between the entry of a judgment in the official record and the judgment as it was actually rendered. 2. Judicial error. A judicial error occurs when the court considers an issue and makes an erroneous decision. III. Deadline: 30 days after the trial court signs the judgment.
Foreign Judgment
I. A judgment signed outside of TX II. Given full-faith-and-credit to other states' judgments III. Do not give full-faith-and-credit to foreign nations' judgments a. Exceptions for nations who have treaties with FFAC clause IV. Domesticate judgment from foreign nation: a. File it in a District Court; serve the opposing party with notice that you are trying to domesticate judgment; opposing party has 30 days to make a motion for a new trial, otherwise the judgment becomes valid
Postjudgment Motions, Craddock Test
Person must 1. Prove his failure to appear was not intentional or the result of conscious indifference, but was due to mistake or accident, 2. Set up a meritorious defense, and 3. Show that a new trial would not cause delay or otherwise injure the plaintiff.
Postjudgment Motions, Motion for New Trial
I. Purpose. In a motion for new trial, a party asks the trial court to reconsider and rectify trial error -- the court's rulings or the jury's findings -- by granting a new trial. II. Four reasons to file a MNT: 1. To give the trial court one last chance to correct what the appellant will claim on appeal is reversible error, 2. To preserve the error for appeal, 3. To extend the appellate deadlines, and 4. After a bench trial III. Deadlines for MNT. a. Original MNT. A motion for new trial must be filed within 30 days after the date the judgment was signed. b. A premature MNT, filed before the judgment is signed, is deemed filed on the day of, but immediately after, the signing of the judgment
Postjudgment Motions, MNT After Nonjury Trial
I. Not generally necessary; a party does not need to file a MNT to preserve most errors in a nonjury trial. II. Required. If the complaint was not presented to the trial court during trial or in some other postjudgment motions, or if the complaint is one on which evidence must be presented, the complaining party must file a motion for new trial to preserve error.
Postjudgment Motions, MNT After Summary Judgment
I. Not generally necesssary. II. Required: a. Newly discovered evidence; b. No opportunity to file response
Postjudgment Motions, MNT Based on Newly Discovered Evidence
I. Whether the court grants a motion for new trial based on newly discovered evidence is a matter within its discretion. II. To make a claim for a new trial because of newly discovered evidence, the movant must allege the following: 1. The movant discovered admissible and competent evidence after the trial, 2. The late discovery of the new evidence was not due to lack of diligence. 3. The evidence is not merely cumulative of other evidence. 4. The evidence is not merely for impeachment. 5. The evidence is material and would probably produce a different result at a new trial.
Motion for Remittitur
I. Purpose. A request for remittitur asks the court to reduce the damages because they are excessive. Remittitur procedure is designed to discourage the expense and delay of appeals. II. The trial court cannot "order" a remittitur, it can only "suggest" a remittitur as an alternative to a new trial. III. Voluntary remittitur. If the court of appeals reverses the trial court's judgment because of legal error affecting only a portion of the damages awarded, the affected party may, within 15 days after the court of appeals' judgment, voluntarily remit the amount it believes will cure the error.
Motion to Modify the Judgment
I. Purpose. A motion to modify the judgment is the procedure for asking the trial court to change the judgment. II. Examples of when a party should file a motion to modify the judgment. a. Prejudgment interest. A party should file a motion to modify the judgment when the court does not award the correct amount of prejudgment interest. b. Attorney fees. A party should file a motion to modify the judgment when the court does not award attorney fees or does not award the correct amount of fees. c. Costs. A party should file a motion when the court does not award costs, awards costs to the wrong party, or does not award the correct amount of costs. d. Any other error or omission in judgment. III. Deadlines. a. Original or amended motion; within 30 days of judgment signed. b. After MNT overruled but within 30 days; within 30 days of judgment signed.
Request for Findings of Fact & Conclusions of Law
I. Purpose. Findings of fact in a nonjury trial serve the same function as the jury's answer to jury questions -- they resolve the factual disputes in the case. II. In the following instances, parties should always ask the court to file findings of fact. 1. After nonjury trial of facts. 2. After motion for judgment in nonjury trial. 3. After mandamus initiated in trial court. 4. To supply omitted elements of an issue. 5. When part of case is decided by court. 6. To supply specific damages findings in nonjury trial. III. Findings of fact not appropriate in following instances: 1. After jury trial. 2. After summary judgment. 3. After directed verdict. 4. After JNOV. 5. After trial of agreed case. 6. After dismissal on pleadings without evidence. IV. Deadline. The first request must be filed within 20 days after the date the judgment was signed.
Res Judicata & Collateral Estoppel, Claim Preclusion (RJ)
I. Prevents re-litigation of causes of action that were litigated or should have been litigated II. Bar subsequent suit that arises out of single transaction or series of connected transactions III. For business transactions, you look at the expectations of the parties IV. Mutuality of parties required V. Compulsory Counterclaim Rule: once parties are cast as adversaries, all claims arising from same transaction must be brought or forever barred
Res Judicata & Collateral Estoppel
I. Does not attach to settlements or dismissals II. Judgment must be final (not an interlocutory judgment)
Res Judicata & Collateral Estoppel, Issue Preclusion (CE)
I. Prevents re-litigation of identical issues that were fully and fairly litigated and were essential to the judgment II. Mutuality of parties not required (can be privity) III. Offensive collateral estoppel -- plaintiff uses against the defendant a. Frowned upon in the law b. Court has discretion to allow c. Issue is whether use is fair -- does use promote policy behind res judicata? IV. Defensive collateral estoppel: defendant uses to prevent litigation from plaintiff V. Alternative findings: if two issues are equally essential to the judgment, neither issue is essential to the judgment in regards to collateral estoppel
Original Appeal
I. Notice of appeal filed with trial court II. After trial court's judgment, winning party can begin collecting a. When appealing, appellant has to post a supersedeas bond to delay creditor from collecting on assets b. No longer dollar-for-dollar amt required for bond IV. 30 days to file appeal V. 90 days to file appeal if judgment extended VI. 2 parts to record: 1. Clerk's record 2. Court report's record: can consist of tangible things VII. Appellent's brief due 30 days after last record filed -- appellee's brief due 30 days after appellant's brief
Original Proceeding
I. Writ based 1. Writ of mandamus a. Command from a higher court to a lower court to do something particular, pertains to an office or duty; presupposes that justice be served by issuing this writ b. Purpose is to correct a clear abuse of discretion by lower court c. Elements: i. Clear abuse of discretion ii. Inadequate remedy on appeal d. If higher court grants the writ, the court has to issue an opinion on the decision i. Higher court will sometimes condition the writ, without ever granting it e. If higher court denies the writ, the court has option to issue an opinion 2. Writ of procendo a. The lower needs to do something -- proceed to judgment; executed against a lower court 3. Writ quo warranto a. An action that is taken to determine if some official has authority to act 4. Writ of habeas corpus a. Someone is being confined or detained wrongfully 5. Writ of certiorari a. "To be informed," a writ of discretionary review II. Response to a writ is optional, not required
TX Supreme Court
I. Supreme Court is a court of limited jurisdiction II. Restricted to matters of law (sometimes can get around) III. 6 basic areas of jurisdiction 1. Dissent jurisdiction: Supreme Ct. latches onto a dissenting opinion from appellate court 2. Conflict jurisdiction: 2+ appellate courts have differing views 3. Statutory construction: interpretation of statutory meaning 4. State revenue 5. if Railroad Commission is a party 6. If so important to jurisprudence of the State IV. Interlocutory appeals on injunction based on Constitutional rights; four main interlocutory appeals that could go to Supreme Ct.: 1. Trial court receives fiduciary 2. Summary judgment regarding media issues 3. Order that refuses to certify class in a class-action 4. Any other interlocutory judgment that includes dissent or conflict jurisdiction V. Supreme Court's jurisdiction is discretionary
TX Supreme Court: Certification Process
I. Supreme Ct. has authority to receive certification from federal appellate court II. When there is no Supreme Ct. authority on point III. Still discretionary, not mandatory for Court to take IV. Federal court gives Supreme Court issue and facts (cannot be contested facts) V. If involves statute and attorney general is not already a party, attorney general must be notified for chance to join in case VI. Supreme Ct. can have oral arguments VII. Supreme Ct's opinion is binding on TX courts
TX Supreme Court: Petition for Review
I. Improvedent Grant: Supreme Ct grants a petition for review, but later dismisses it II. Not an appeal, it is a request to have permission to appeal a. Must be filed within 45 days of appellate court's judgment or timely filed motion for rehearing III. If someone files a petition for review, any other party has 30 days to file petition for review a. No response required b. Supreme Ct cannot grant petition without a response c. Response due 30 days after petition for review if choose to make one IV. Any opinions, exhibits, orders, motions included in the record should go up to Supreme Ct if Court asks for it V. Once Supreme Ct. grants petition (or sometimes without granting it) the petitioner should file a brief a. Briefs usually due 30 days after the Supreme Ct. asks for one VI. What is included in brief is mostly redundant of petition a. Can file same brief as one filed in appellate court, though not recommended b. Respondent's brief only has to discuss petitioner's brief, due 20 days later VII. Takes 6 of 9 justices to grant petition VIII. Supreme Ct. has to issue an opinion if petition granted

Deck Info