Jury Charges in State Court

Presented by:

Hon. Mary Murphy

Court of Appeals for the Fifth District of Texas at Dallas

Scott Stolley

Thompson & Knight LLP – Scott.Stolley@tklaw.com

Kirsten Castañeda

Locke Lord Bissell & Liddell LLP – kcastaneda@lockelord.com

Written materials prepared by Kirsten Castañeda

Dallas Bar Association Trial Skills SectionJuly 8, 2011

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Our goal in this presentation is to provide some practical tips for drafting andobjecting to Texas state court jury charges, as well as sharing our collective experiencesand perspectives from both sides of the trial and appellate court bench. In addition tothe insights we’ll be discussing at the presentation, these written materials provide:

an overview of recent changes to pattern jury instructions and questions;

summaries of two Texas Supreme Court opinions to keep handy whendrafting and objecting to jury charges;

some practical drafting tips;

a list of useful drafting resources; and

a discussion of considerations and preservation issues when makingobjections.

Amended Texas Rule of Civil Procedure 226a

In addition to the Texas Pattern Jury Charges, pattern jury instructions areprovided in Texas Rule of Civil Procedure 226a. Rule 226a was amended in mid-March2011, effective April 1, 2011. The amendments substantially revise the instructions to begiven to the venirepanel before voir dire, the instructions for the jury after being swornin, and the initial instructions to be included in the Court’s Charge. A copy of theamended rule is attached for your convenience. The amended rule is available online onthe Texas Supreme Court’s website (http://www.supreme.courts.state.tx.us/rules/trcphome.asp) as part of the online Texas Rules of Civil Procedure and as a stand-alonedocument.

New Editions of the Texas Pattern Jury Charges

2010 volumes of the Texas Pattern Jury Charges are now in effect. Among thechanges to the prior versions are the following:1

All three civil litigation volumes contain new or revised instructions on:

Jurors’ use of electronic technology (new instruction)

The meaning of “new and independent cause” (comment revised toadd the phrase “unbroken by any new and independent cause” tothe proximate cause definition)

1 This list was compiled by reference to the article “Changes in the 2010 Pattern Jury Charges”presented by Justice Jeff Brown, Brett Busby, Justice Tracy Christopher, and Jeff Levinger atthe State Bar of Texas 24th Annual Advanced Civil Appellate Practice Course, September 2 and 3,2010.

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Imputing gross negligence to a corporation (instruction revised todelete the “manager” option)

The general negligence and intentional personal torts volume contains:

Revised prefatory language in multiple damages questions

Revised language in damages question for injuries of a minor child

Revised comment to damages question for parent’s loss of servicesof a minor child

Additional “or” and “and” added in several questions for clarity,based on survey of trial judges and study with mock jurors

Revised comment on proximate cause in a negligent entrustmentclaim

New chapter on limitations (PJC 14.1)

The malpractice, premises, and products volume contains:

New comment and proposed instruction regarding “lost chance ofsurvival”

New comment regarding “reasonable” as opposed to “ordinary”standard of care in certain malpractice cases

New comment to several questions regarding the effective date of aresponsible third party designation

New comments regarding emergency medical care

Revised definition of ordinary care for a non-medical professional

Revised comment regarding distinction between contractualretention of right to control and the actual exercise of control inpremises cases

New comment regarding manner of determining status of a plaintiffwhen defendant is an exclusive or non-exclusive easement holder

New and revised questions and comments regarding negligence andnegligent undertaking in products cases

Correction to the conditioning instruction in breach of warrantyquestion

Revisions to damages question regarding injury to a minor

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New examples of measures of economic damages in legalmalpractice cases

The business, consumer, insurance, and employment volume contains:

New questions and instructions regarding claims for violation of theTexas Securities Act

New comment regarding use of PJC 104.1 when the existence of aformal fiduciary duty is disputed

Substitution of question and instruction (104.3) for prior commentregarding modification of breach of fiduciary duty question whenburden does not shift to the fiduciary

Revision of the justification defense question in the tortiousinterference chapter

New comment to the conspiracy question regarding evidence ofdivisible damages from multiple underlying torts, when there is adispute about which torts were a subject of the alleged conspiracy

Two Cases to Keep Handy

Regal Finance – “if” does not mean “only if”

In Regal Fin. Co. Ltd. v. Tex Star Motors, the Texas Supreme Court threw some jurycharge curveballs. --- S.W.3d ---, 53 Tex. Sup. Ct. J. 1034, No. 08-0148 (Aug. 20, 2010).Eight justices formed the majority, while Justice Johnson dissented.

The opinions involve a UCC Article 9 claim and a jury instruction on the term“commercially reasonable.” Article 9 requires a secured creditor to prove it disposed ofthe collateral in a commercially reasonable manner before the creditor may recover anydeficiency. 53 Tex. Sup. Ct. J. at 1036. Article 9 provides several non-exclusiveexamples of commercially reasonable dispositions, including a disposition “inconformity with reasonable commercial practice among dealers in the type of propertythat was the subject of the disposition[s].” Id. The question on the Article 9 claimprovided only one instruction on the meaning of commercially reasonable: “A sale iscommercially reasonable if it conforms to reasonable commercial practices amongdealers in the type of property that was the subject of the sale.” Id.

There were no proper objections to the jury instruction at issue. Accordingly, theCourt did not consider or decide whether the instruction given was proper or whetheradditional instructions were required in order to properly and fully instruct the jury.Instead, Texas law required that the sufficiency of the evidence be measured against thedefinition as it was given. But, the threshold question was whether the definitionlimited the jury to “conformity with industry practice” as the sole method of establishing“commercially reasonable” in this case. Id. at 1036.

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The majority opinion answered “no.” 53 Tex. Sup. Ct. J. at 1036-38. Furthermore,in its analysis of the sufficiency of the evidence, the Court used other legal standards for“commercial reasonableness,” even though none of those standards were included in thecharge. Id. at 1038-40. The Court’s holdings on these two points have broaderimplications with regard to Texas jury instructions.

By using the term “if” instead of the phrase “only if,” theinstruction did not limit the jury to the stated method indetermining whether the sale was commercially reasonable.

“If” does not mean the same thing as “only if” even though there is only onedefinition/example given in the instruction. See 53 Tex. Sup. Ct. J. at 1037-38. Thisholding has far-reaching implications because the Texas Pattern Jury Charge uses “if” todefine many terms. See, e.g., PJC §§ 101.4, 101.5, 101.24, 101.25, 101.26, 101.27, 101.28,101.29, 101.30, 101.31, 101.32, 101.33, 101.42.

For example, the PJC defines “apparent authority” as follows:

Apparent authority exists if a party (1) knowingly permits another to holdhimself out as having authority or, (2) through lack of ordinary care,bestows on another such indications of authority that lead a reasonablyprudent person to rely on the apparent existence of authority to hisdetriment.

PJC § 101.4 (emphasis added); see also Regal Fin., 53 Tex. Sup. Ct. J. at 1043 (Johnson,J., dissenting). Under the majority opinion in Regal, this instruction would not limitthe jury to the listed methods in determining whether apparent authority exists. If youwant the appellate courts to review your case and the jury’s findings under the standardthat these are the only two ways that the jury can find apparent authority, do you nowneed to object in the trial court, propose a substantially correct instruction, and cite toRegal? Under Regal, perhaps the instruction should say “Apparent authority existsonly if a party . . .” or “Apparent authority means that a party either . . . ?” It alsowill be interesting to see whether Regal spurs any revisions to these types of instructionsin the PJC.

If the evidence is sufficient to support any of the legallypermissible methods of proving commercial reasonableness,the evidence may be sufficient even if the jury was neverinstructed on those legal standards.

It also appears that the majority made the following determination: Where the juryis instructed on only one of several methods for determining commercialreasonableness, and the charge (without objection) does not instruct that the jury islimited to the stated method, the evidence is sufficient to support a finding ofcommercial reasonableness if there is evidence sufficient to support any of the legallypermissible methods of proving commercial reasonableness, even if the legal standardsfor commercial reasonableness are beyond the common understanding of laypeople andthe jury was never instructed on those legal standards.

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After deciding the meaning of the “commercially reasonable” definition given to thejury, the majority turned to the question of whether the evidence was sufficient tosupport the jury’s finding. Regal Fin., 53 Tex. Sup. Ct. J. at 1038. In determining thatthe evidence was sufficient to support the jury’s finding of commercial reasonableness,the majority cited various legal factors that courts have relied upon to find commercialreasonableness, as well as the policies underlying Article 9. Id. at 1038-39. However, asthe dissent pointed out, Texas law did not allow the jury to use any of that informationin reaching its decision unless: (1) the charge instructed the jury that such law applied;or (2) the law was injected into the trial through evidence, such as expert testimony. Id.at 1044 (Johnson, J., dissenting).

The charge did not instruct the jury on any standard for commercial reasonablenessother than compliance with industry practice, and there was no expert testimony orother evidence telling the jury about any other way (i.e., other factors or policies) toestablish commercial reasonableness. See id. at 1044-45. For example, Regal did nothave a qualified expert witness testify as to what were reasonable commercial practicesamong dealers in the same type of property that Regal was liquidating, or that Regal’sactions conformed to such practices. Id. at 1045. Thus, regardless of whether “if”means “only if,” the dissent concluded that the charge functionally gave the jury – whohad no common understanding of the legal standards applicable to “commerciallyreasonable” – only one way to find commercial reasonableness. Id.

Nevertheless, because the charge did not limit the jury to the stated method, themajority examined the other methods available at law when it analyzed whether theevidence was sufficient to support the “commercially reasonable” finding. Id. at 1038-39(majority op.).

Hawley – the jury must be instructed on applicable standards anddefinitions

In Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex.2009), the Texas Supreme Court provided useful guidance on the types of instructions ajury must be given to flesh out the basic or pattern questions and instructions. InHawley, the trial court had refused to give proposed instructions regarding lost chanceof survival and a physician’s independent contractor status. 284 S.W.3d at 854. Withregard to lost chance of survival, the evidence conflicted as to the patient’s chance ofsurvival at the time of her diagnosis. Id. at 859. The defendant requested the followinginstruction:

You are instructed that [patient] must have had greater than a fifty percent(50%) chance of survival on [the date of diagnosis] for the negligence of[hospital] to be a proximate cause of injury to [patient].

Id. The trial court refused to give the instruction, although the lawyers explained inclosing arguments that this was the law. Id. at 861.

The Texas Supreme Court held that the trial court was required to give theinstruction because it “would have provided to the jury the standard it was required by

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law to apply in making its finding on a hotly-contested issue.” Id. at 862. The Courtconcluded that “[i]t asks too much of lay jurors, untrained in the law, to distill thecorrect Texas legal standard for loss of chance from the general proximate causeinstruction given by the trial court.” Id. Because the requested instruction would haveassisted the jury, was an accurate statement of applicable law, and was supported by thepleadings and evidence, the trial court abused its discretion by refusing to give it. Id.

In addition, the defendant requested the following instruction regarding thephysician’s status as an independent contractor:

In considering the negligence of [hospital], do not consider the acts oromissions of the pathologist, Dr. Valencia.

284 S.W.3d at 863. The trial court instructed that a hospital acts through its employees,agents, nurses, and servants. Id. The defendant did not object that this was anincorrect or improper statement of the law, but contended that the additionalinstruction was necessary to prevent the jury to improperly include the pathologist inthese categories. Id. Because the word “agent” has a common meaning and was notdefined in the court’s charge, the jury could have considered the pathologist to be thehospital’s agent. Id. The requested instruction “was effectively a limiting and properdefinition of the term under the evidence.” Id. at 863-64. Because the requestedinstruction would have assisted the jury, was an accurate statement of applicable law,and was supported by the pleadings and evidence, the trial court abused its discretion byrefusing to give it. Id. at 864.

The Court found the first jury charge error to be harmful and presumed that thesecond error was. 284 S.W.3d at 864-65. Thus, the trial court’s judgment was reversedand the case was remanded for a new trial. Id. at 865.

Drafting Tips

Outline the claims and defenses

Overall, it is enormously helpful to outline the elements of the claims anddefenses at issue. This outline not only assists in double-checking your draft charge forcompleteness, but also provides a handy reference when analyzing measures ofdamages, causation standards, and other aspects of each question. The best time toprepare this type of outline is at the outset of the case. It is invaluable in crafting writtendiscovery requests and oral deposition questions, analyzing how issues requiring experttestimony fit into the bigger picture, and preparing summary judgment motions.However, if you’ve delayed drafting this (and your charge) until just before trial, someresources that may be helpful to draft your outline (in addition to the live pleadings andthe language of any statutes at issue) are any summary judgment motions,Daubert/Robinson motions, and motions in limine filed in the case.

Proper measure of damages. Damages must be measured by a legal standard.Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 90 (Tex. 1973). The proper legalstandard must be used to guide the fact finder in determining what sum would

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compensate the injured party. Id. Thus, at trial, the jury must be told how to measurethe damages sought. Id.; see also, e.g., Texas Pattern Jury Charges Business, Consumer,Ins., Emp’t 115.2 cmt. “Instruction required” (stating “PJC 115.2 may not be submittedwithout an instruction on the appropriate measure of damages” [emphasis in original]).Although the examples given in the PJC sometimes are helpful in crafting the measureto be used in your jury charge, it is often the case that none of the sample measures fitthe facts, and your measure must be crafted from the case law as applied to yourcircumstances.

Whether viewed in the context of the jury charge, a summary judgment motion,or a Daubert/Robinson challenge, knowing the proper measure of damages is critical.Likewise, assembling evidence of the proper measure of damages is essential. If you arethe plaintiff and your fact and expert evidence uses an improper measure of damages,you will be unable to establish an essential element of your claims. If you are thedefendant, you need to know whether the plaintiff has an essential-element problem,but also you want any controverting evidence to focus on the proper measure ofdamages.

Causation standard

Many times in the PJC, the causation linkage is not stated using legal causationterminology (e.g., PJC 115.20), but instead using phrases such as “resulted from” (e.g.,PJC 115.2, 115.19) or “because of” (e.g., PJC 115.11). Be aware that these phrases maynot limit the jury to the proper causation standard. You may want to propose a questionusing the proper legal causation term and an instruction defining that term, and youmay need to object if the trial court refuses to use your proposed language.

Conditioning.

Pay attention to which questions you’re linking together by conditioninglanguage. Evaluate spots where conditioning may be absolutely mandatory to avoidpossibly conflicting answers. Also analyze whether some questions should not beconditioned in order to eliminate the need for a new trial if one or more of the jury’sanswers is/are found to be without legal or evidentiary support. Finally, think criticallyabout which questions should be the basis for your conditioning in any punitivedamages predicate and damages questions.

Don’t assume the pattern is correct. And do read the comments.

Know where the potential pitfalls are. The wording of the proximate causedefinition. Causation linkage in damages questions. The language in the conspiracyquestion/instruction. These areas are some of the spots where the Pattern Jury Chargemay not be correctly worded. In addition, don’t forget that many of the PJC commentsdiscuss alternative language or modifications that should be made in a variety ofcircumstances. If those circumstances exist in your case – or if analogous circumstancesexist in your case – you should consider what alterations should be made to the patternlanguage in proposing questions and instructions for the court’s charge.

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Drafting Resources

In addition to the questions, instructions, and definitions in the Texas PatternJury Charges, there are several other resources you may find helpful in drafting yourproposed charge.

Pattern resources

Comments in the Texas Pattern Jury Charges (2010)

Don’t forget to read them, but read with a critical eye. For example,a comment to PJC 2.4 (defining proximate cause in negligence cases) states:“Modify if ‘ordinary care’ not applicable to all. If “ordinary care” is not thestandard applicable to all whose conduct is inquired about, the phrase the degreeof care required of him should replace the phrase ordinary care in the secondsentence of this definition of ‘proximate cause.’ See Rudes, 324 S.W.2d at 206–07.” Texas Pattern Jury Charges General Negligence, Intentional Personal Torts2.4 cmt. “Modify if ‘ordinary care’ not applicable to all” (2010). What thecomment doesn’t say is that the jury then should be instructed on what degree ofcare is required of each actor. See Hawley, 284 S.W.3d at 862.

Oil, Gas & Energy Law Section Pattern Jury Charges (2005) –click on the link at http://oilgas.org/DrawOnePage.aspx?PageID=13, or directlyaccess the pdf at oilgas.org/Content/PDFs/PatternJuryCharges.pdf)

5th Circuit Pattern Jury Instructions – Civil (2006) – click on the“Fifth Circuit 2006 Civil Jury Instructions” link on the 5th Circuit Pattern JuryInstructions page (http://www.lb5.uscourts.gov/juryinstructions)

5th Circuit Labor and Employment Law Pattern Jury Charges (3drev. 2009) – click on the “About the 2009 Civil Jury Instructions” link on the 5th

Circuit Pattern Jury Instructions page(http://www.lb5.uscourts.gov/juryinstructions)

Other resources

Through Westlaw (or LEXIS), it is possible to track down sample state courtcharges. On Westlaw, the State Court Filings database is located in U.S. State Materials> Trial Filings (pleadings, motions, and other filings combined) > State Trial Filings.The filings are broken down by state. You will want to perform a Terms and Connectorssearch in the Texas Civil Trial Court Filings for DT(jury) – DT stands for docket type.

Because this database is state-wide, it is not very useful for finding samplecharges given by your particular trial judge, but it is useful for finding sample charges onissues not covered by the PJC. However, caveat emptor – the court’s charge will not tellyou what objections were (or were not) made to the questions and instructions, nor willit reveal the hotly contested issues on which everyone was (or was not) focused.

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Subsequent history checks are a good idea, as well, to see whether an appeal has beentaken based in any part on the charge.

For example, in your Westlaw search in the Texas Civil Trial Court Filings fordt(jury), you can Locate search for “misappropriat! /50 trade /8 secret!” The first wordrange is large because the jury question may substitute a description of the informationat issue for the generic term “trade secrets.” This search may yield petitions with jurydemands or motions to disregard answers in the jury’s verdict, but it also may yieldsome jury charges on your issue:

Sample federal court charges

Using a combination of Westlaw (or LEXIS) and PACER, it is possible to trackdown sample federal court charges, as well, which may also be useful in state court.Unlike the state-wide database for state court charges, the district-limited database inWestlaw makes it easier to find charges given in a particular district or by a particularjudge. (If you are in federal court, this can be helpful in determining whether your judgeprefers to provide all the instructions followed by a verdict form with questions only, orto ask questions followed by instructions.)

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Currently, you cannot search PACER for types of documents (i.e., jury charges)across cases. Westlaw has a database called District Court Filings. This database islocated in U.S. Federal Materials > Trial Filings (pleadings, motions, and other filingscombined) > Federal Trial Filings. The filings are broken down by district.

If you want to search for jury charges in the Northern District of Texas, click onthe United States District Court, N.D. Texas Civil Trial Filings link, and do a Terms andConnectors search for “DT(jury).” This search will pull up complaints that include jurydemands, but also will include jury charges and verdict forms:

From the docket number on the 2011 Milam verdict form (2:09-CV-003-J), weknow that this is a verdict form (questions only) given by Judge Robinson in Amarillo.Further down the list, there is a court’s charge (2011 Daniell charge) using thequestion/instruction format similar to Texas state court practice.

Sometimes, a search will grab a proposed charge but not the official court’scharge, or (as with the Milam document above) will produce the verdict form but notthe accompanying charge/instructions. In those cases, you may want to access PACERand, using the docket number from the Westlaw filing, check to see if the court’s chargeis electronically available there.

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Tips for Objections2

The same areas identified above in the “Drafting Tips” section are good places tostart when analyzing the other side’s proposed charge (or the court’s own draft).

Claims and defenses. Are all of the necessary claims and defensesincluded? Are all elements encompassed and any necessary definitions given? Ifthe claim is based on a statute, does the proposed question, instruction, ordefinition track the statutory language?

Measure of damages. Are the damages measures included? Are theyproperly stated? Are they adequately limited as to time?

Causation. Is the jury properly asked and instructed about the type ofcausation needed?

Conditioning. Does conditioning appear where needed? Are otherquestions also conditioned, and if so, is the conditioning proper? Does theconditioning link one question to the proper earlier question? Sometimes a flowchart or decision tree can make this much clearer.

Check the PJC and comments. Is there a pattern for each question orinstruction? If so, has the pattern been followed or is there a basis for anydivergence? If not, is the issue covered by any comments in the PJC?

Here are some additional tips in formulating objections to the charge – this is byno means an all-inclusive list, and is meant to provide some practical ideas that may notbe found in practice guides and treatises.

Check any cited case law, and look for additional case law regarding theclaim or even sample questions and instructions. Many times, reading the casescited in support of a proposed question, instruction, or definition reveals that: (1)the case does not actually provide any support; or (2) the proposed language isdifferent from the language in the cited case. Moreover, there may be newercases, or disputes among Texas courts of appeals, about the parameters of aclaim, the burden of proof, the requisite type of causation, or even the wordingthat should be used in submitting the issue to the jury.

Evaluate whether each question properly places the burden of proof.Generally speaking, the question should be asked so that a “Yes” answer favorsthe party bearing the burden of proof. See Turk v. Robles, 810 S.W.2d 755, 759(Te. App.—Houston [1st Dist.] 1991, writ denied). If there is doubt as to whichparty bears the burden of proof (e.g., when both parties assert breach of contract

2 In addition to independent analysis, case law, and experience, this section of the materialsdraws on the discussions and case law cited in the “Jury Charge” article authored by JenniferBruch Hogan, Richard P. Hogan, Jr., and Matthew E. Coveler for the State Bar of Texas CivilAppellate Practice 101 on September 1, 2010.

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claims and both allege that the other party committed the first material breach),the question should ask the jury to answer with substantive information, ratherthan a “yes” or “no.” For example:

Who failed to comply with the agreement first?

Answer “Don Davis” or “Paul Payne.”

Answer: _______________

Texas Pattern Jury Charges Business, Consumer, Insurance, Employment 101.2cmt. “Disjunctive question for competing claims of material breach” (2010).

Determine whether any of the liability questions erroneously comminglevalid and invalid theories. Broad-form submission is not feasible when a singleliability question includes as bases for liability both valid and invalid theories.Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). If the law doesnot allow liability to be premised on one basis included in the liability question, ifthe applicable law is unsettled, or if there is arguably no evidence to supportsubmission of that basis to the jury, that element of the liability question shouldbe submitted as a separate question, if at all. See, e.g., Harris County v. Smith,96 S.W.3d 230, 236 (Tex. 2002).3

Determine whether any of the damages questions erroneously comminglevalid and invalid elements. Asking the jury to award one lump sum of damages isnot feasible when based on multiple elements of damages, one or more of whichis legally invalid or not supported by legally sufficient evidence. Smith, 96S.W.3d at 234.

Determine whether the liability questions are properly tied to damagesquestions. The term “damages question” is somewhat misleading because suchquestions encompass not only the existence and amount of damages, but also thecausal link between those damages and the liability finding. Thus, the court’scharge must include damages questions that are properly tied to the predicateliability questions. See, e.g., Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987).

Determine the scope of any punitive damages questions. Punitivedamages should be awarded against the wrongdoer based on: (1) thewrongdoer’s own acts causing (2) harm to the plaintiff. See, e.g., Philip MorrisUSA v. Williams, 549 U.S. 346, 354-55 (2007). To the extent that a punitive

3 The Casteel analysis does not appear to apply to a single theory of liability (e.g., negligence)based on multiple alleged acts or omissions, one or more of which is not supported by theevidence. See Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 857-59 (Tex. App.—Fort Worth 2003, pet. denied); see also Bed, Bath & Beyond v. Urista, 211 S.W.3d 753, 756-58(Tex. 2006); Dillard v. Tex. Elec. Coop., 157 S.W.3d 429, 434 (Tex. 2005). However, the TexasSupreme Court has never expressly addressed this question. See, e.g., City of Fort Worth v.Zimlich, 29 S.W.3d 62, 69 n.1 (Tex. 2000). Therefore, the safest course at this juncture may beto object (and request, as needed) in accordance with Casteel.

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damages question is conditioned on earlier questions imposing liability orculpability on multiple defendants or based on evidence of harm caused to non-parties, the question – even if correctly worded in itself – may be erroneous andobjectionable. Which leads to the next tip . . .

Examine even correctly worded instructions to determine whether theyamount to a comment on the weight of the evidence or require additionalinstructions. Even a correctly worded instruction may be erroneous if it isunnecessary or incomplete. See Wal-Mart Stores v. Johnson, 106 S.W.3d 718,723-24 (Tex. 2003). An unnecessary instruction may effectively tilt or nudge thejury toward a certain answer. Or, a correctly worded instruction may use wordsthat have a specific legal meaning or raise concepts that need additionalexplanation. In those instances, the instruction may be an incomplete statementof the law and require additional definitions or instructions.

In making objections, be mindful of the following preservation requirements:

Objections vs. requests. Some jury charge error is preserved by objection;other jury charge error may be preserved only by objection and a request insubstantially correct wording. See TEX. R. CIV. P. 274, 278. When in doubt as towhether both an objection and a request is required to preserve error, “cautiouscounsel might choose to do both . . . .” State Dept. of Highways & Pub. Transp.v. Payne, 838 S.W.2d 235, 240 (Tex. 1992). But here are the general rules forwhen to object and when to also request:

Object to a defective instruction or definition that isincluded in the court’s charge. TEX. R. CIV. P. 274; Spencer v. EagleStar Ins. Co., 876 S.W.2d 154, 157 (Tex. 1994). Be aware that there areTexas Supreme Court cases holding that an objection is required and arequest, on its own, will not substitute as an objection to preserve error.See, e.g., Willis v. Donnelly, 199 S.W.3d 262, 275 (Tex. 2006); Hernandezv. Montgomery Ward, 652 S.W.2d 923, 925 (Tex. 1983); Tex. Gen. Indem.Co. v. Moreno, 638 S.W.2d 908, 914 (Tex. App.—Houston [1st Dist.] 1982,no writ); but see Payne, 838 S.W.2d at 239-40 (holding that, even ifobjection made was “insufficient,” the complaining party preserved errorby making a request).

Object to an erroneous question that is included in thecourt’s charge. Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex.2003); Religions of Sacred Heart v. City of Houston, 836 S.W.2d 606,613-14 (Tex. 1992). This rule applies no matter which party bears theburden of proof in the question.

Object to an omitted question on which the OPPOSINGPARTY bears the burden of proof. TEX. R. CIV. P. 278; Sears,Roebuck & Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005,pet. denied). This is an express and very limited exception to the rule thata party must object to and request a question omitted from the court’s

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charge. See TEX. R. CIV. P. 274, 278. If there is any doubt about whichparty bears the burden of proof (e.g., in cases where the burden of proofmay shift depending on the circumstances and evidence), it is best toobject to AND REQUEST (in substantially correct wording) the omittedquestion.

Object to AND REQUEST IN WRITING (in substantiallycorrect wording) an omitted question on which YOU have theburden of proof – and the court’s refusal of the request must beclear from the record. TEX. R. CIV. P. 274, 278; ASEP USA, Inc. v.Cole, 199 S.W.3d 369, 377 (Tex. App.—Houston [1st Dist.] 2006, no pet.).Again, when in doubt about which party bears the burden of proof, thesafest course is to follow this rule by objecting to AND REQUESTING (insubstantially correct wording) the omitted question.

Object to AND REQUEST IN WRITING (in substantiallycorrect wording) a definition or instruction that is omittedfrom the court’s charge – and the court’s refusal of the requestmust be clear from the record. TEX. R. CIV. P. 278; Sears, Roebuck &Co. v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet. denied)(stating rule and collecting cases). See also McCarthy v. Wani Venture,A.S., 251 S.W.3d 573, 585 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

“Substantially correct wording” is not measured by a specific test(of course). The “substantially correct” range appears to fall somewherebetween “perfect” and “not actually incorrect.” See, e.g., S.W. Bell Tel. Co.v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992); Exxon Corp. v.Perez, 842 S.W.2d 629, 630 n.1 (Tex. 1992). The best way to make clearthe court’s refusal of your written request is for the court to endorse therequest as “Refused” and sign it. TEX. R. CIV. P. 276; Dallas Mkt. Ctr. Dev.Co. v. Liedeker, 958 S.W.2d 382, 386 (Tex. 1997). This is the procedurestated in Rule 276, although the Texas Supreme Court has acknowledgedthat this method is not the exclusive means for preserving error in therefusal of the request. See Liedeker, 958 S.W.2d at 386. Whatevermethod is used, the court’s refusal to give the tendered request must be“clear from the record.” Id.

Specificity of objections. Objections must clearly identify the error andexplain the legal basis (or grounds) for the objection, such that the trial court hasan opportunity to correct the error. Tex. R. Civ. P. 274; Castleberry v. Branscum,721 S.W.2d 270, 276 (Tex. 1986). Thus, an objection that an instruction “mayconfuse the jury” is proper ONLY IF you explain why and how, i.e., why theinstruction is legally incorrect and how it would confuse the jury. SeeCastleberry, 721 S.W.2d at 277. On appeal, you generally will be limited to thespecific objections you made at trial. See, e.g., Knapp v. Wilson N. Jones Mem’lHosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.)

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Timing of objections. Texas Rule of Civil Procedure 272 requires thatobjections to the charge be presented before the charge is read to the jury. Thisrequirement cannot be changed by the court or by the parties’ agreement. SeeMo. Pac. R. Co. v. Cross, 501 S.W.2d 868, 873 (Tex. 1973); Methodist Hosp. ofDallas v. Corporate Communicators, Inc., 806 S.W.2d 879, 884 (Tex. App.—Dallas 1991, writ denied). Rule 272 expressly states that “[a]ll objections not sopresented shall be considered as waived.” Although Rule 272 requires the trialcourt to allow a reasonable time for counsel to review the charge and makeobjections, the trial court has considerable discretion in determining whatamount of time is “reasonable.” Bekins Moving & Storage Co. v. Williams, 847S.W.2d 568, 575 (Tex. App.—Texarkana 1997, no pet.). Reasonableness is viewednot simply in terms of the amount of time elapsed from counsel receipt of thecourt’s final charge, but the time counsel had to review earlier drafts and whatsorts of alterations were made. See id.

Trial judge must attend. At the formal charge conference, the objectionsmust be made in the presence of the trial judge. Brantley v. Sprague, 636S.W.2d 224, 225 (Tex. App.—Texarkana 1982, writ ref’d n.r.e.). Otherwise, allobjections are waived. Id. If the trial judge will not comply with thisrequirement, the safest course would be to request that the judge comply, objectto any refusal to do so, and obtain a ruling on the record.

No incorporation of objections. Texas Rule of Civil Procedure 274expressly forbids adopting and applying an objection to one part of the charge toanother part of the charge by reference. Texas courts have applied this ruleequally to prohibit one party from adopting another party’s charge objections byreference. C.M. Asfahl Ag. v. Tensor, Inc., 135 S.W.3d 768, 795 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Wright Way Const. Co. v. Harlingen Mall Co.,799 S.W.2d 415, 420-21 (Tex. App.—Corpus Christi 1990, writ denied).

These tips and observations are a good place to start in drafting and objecting tojury charges in Texas state court. This area of the law is constantly changing, and welook forward to meeting the continued challenges.