So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.

I have been writing on this blog about how Dallas County juries have shifted over the years from pro-defense to pro-plaintiff, or at least to a point where most prospective jurors in Dallas County don’t necessarily consider lawsuits a bad thing.  In the era of tort reform, this attitude among prospective jurors in Dallas County is very interesting.  My previous posts are here, here, and here.

But why do we care about juries anyway?  There are the constitutional reasons, and the traditions in our legal system that are tied inextricably to the jury trial process.  There are the defenders of the jury trial as the last line of defense against oppression.  And these are good reasons to care about the juries.

But my focus on why juries matter is more practical.  In Texas, juries matter because once a jury renders a verdict it is extraordinarily rare for the jury’s verdict to be overturned.  It happens, but not very often.  This is because legal and factual sufficiency challenges to a jury verdict are judged against very high standards.

The Dallas Court of Appeals just released a decision in Adams v. Bellas affirming a jury verdict where the court went through the standards for legal and factual sufficiency challenges to a jury verdict.

To overturn a jury verdict on legal sufficiency grounds, the court must first credit any evidence favoring the jury verdict if reasonable jurors could disregard contrary evidence if reasonable jurors could not.  If more than a scintilla of evidence supports the jury’s verdict, then the court has to uphold the verdict.  There is no weighing of the evidence on one side or the other.  The court simply looks at whether there is some evidence that would “enable reasonable and fair-minded people to reach the verdict under review.”

To overturn a jury verdict on factual sufficiency grounds, the jury’s verdict must be against the great weigh and preponderance of the evidence.  This means that the jury verdict will be set aside “only if it is so contrary to the overwhelming weigh of the evidence as to be clearly wrong and manifestly unjust.”

Taken together, the high standards for legal and factual sufficiency protect the philosophical value that we place on the role of the jury in our legal system. We have assigned the jury the role of weighing the evidence and resolving any conflicts or inconsistencies in the evidence.  We then shield the jury’s verdict from second-guessing by creating high standards for overturning the jury’s verdict.

So why do juries matter?  Because under our system, once the jury delivers its verdict it is procedurally and practically very difficult to overturn the verdict.  Oh, and also for all those constitutional reasons and tightly-held traditions long associated with our legal system.

Outside of my work as a litigator I train in Brazilian Jiu-Jitsu.

Fighting
Copyright: shaffandi / 123RF Stock Photo

I am a beginning white belt in jiu-jitsu, while I am entering my 17th year of practice as a lawyer.  But the parallels were immediately obvious to me when I started martial arts training.

At its most fundamental, jiu-jitsu is about positioning and leverage.  How can you improve your position and increase your leverage over your opponent?  How do you survive the attack from a bigger or stronger opponent, stay comfortable in the middle of the fight, and wait for your opportunity to improve your position and submit your opponent.

This principle informs my litigation strategy.

Recently I represented a partner in a business.  The partnership had soured and my client was accused of theft of hundreds of thousands of dollars’ worth of products and cash belonging to the partnership.  Like many small businesses, the records were less than impeccable.

My client, while absolutely innocent, was very nervous.  She was such an honest person that the mere accusation of theft made her feel guilty.  And, in feeling guilty, she looked guilty. On the other side we faced a professional litigant of sorts who had made a second career out of filing dozens of lawsuits. She had also always gotten her way in the relationship.

Our opponents’ strength lay in the disparity between the two key witnesses in what amounted to a she said/she said case.  My client, while innocent, appeared nervous and guilty. In contrast, our opponent had plenty of experience on the witness stand.

The business lacked good records and the Plaintiff and her lawyer were resistant to readily and fully providing information.  So, we built a record through discovery requests and written correspondence.

This resistance became the theme of our case. We set the traps, improved our position and waited for our opponent to give us our opportunity.

At the beginning of trial, we pushed a motion to exclude key evidence of Plaintiff’s claimed damages because of their failure to timely disclose information.

After a half-day evidentiary hearing the Court was poised to strike Plaintiff’s evidence because the Plaintiff and her attorney had repeatedly resisted legitimate discovery requests.

As the trial began, Plaintiff’s counsel realized the damages evidence would likely be struck by the Court.  We settled at the end of the first day of trial.  Plaintiff took nothing and agreed as a condition of the dismissal to put in writing that it had been a misunderstanding that had led her to file the lawsuit.

We had survived the stronger adversary’s attack, improved our position, and were ready for the opportunity we were given.

My client never took the stand.  And, in the end, we submitted our opponent.

The other day I was in a multiparty deposition, with 15 or so lawyers sitting around a long conference room table.  One lawyer was asking questions, and two or three lawyers were lodging the obligatory objections to questions that just did not sound right to the lawyers who were actually paying attention. Normally this scenario would not merit mentioning, let alone justify a blog post.  But at one point in the deposition during an exchange one lawyer boldly exclaimed “CERTIFY THE QUESTION!”  And that got me to thinking about what it means to “certify the question” in a deposition.  Do you have to “certify the question” to evoke the court’s ability to compel an answer to the question?  Or for that matter, what special steps must you take to ensure that the judge can rule on objections asserted during a deposition?

Since 1999, oral depositions have been covered in Rule 199 of the Texas Rules of Civil Procedure.  Rule 199.5(d) requires counsel to cooperate and be courteous to one another and to the witness.  It also encourages the witness to not be evasive, and prohibits private conferences between the witness and the witness’s attorney during the actual taking of the deposition.  That all seems straight-forward.

Rule 199.5(e) limits the objections to “Objection, form,” “Objection, leading,” and “Objection, nonresponsive.”  The first two objections are targeted at the questions, and the last objection is targeted at the answer.

Under Rule 199.5(f), an attorney can instruct a witness not to answer a question only when necessary to preserve a privilege, to comply with a court order or the Texas Rules of Civil Procedure, or to protect a witness from an abusive question or one for which any answer would be misleading.

If an attorney objects to a question or instructs a witness not to answer a question, the attorney must be prepared to “give a concise, nonargumentative, nonsuggestive explanation of the grounds for the objection or instruction if asked by the party who asked the question.

Rule 199.6 sets for the procedure for obtaining a ruling on any objections or instructions not to answer.  The party asking the question may, at any reasonable time, request a hearing on an objection or an instruction not to answer to preserve a privilege, and the party seeking to avoid the discovery must present evidence to support the objection or instruction through affidavits filed seven days before the hearing, or through live testimony at the hearing.

And in a nutshell, that’s all there is to the rules controlling depositions taken under the Texas Rules of Civil Procedure.  So where’s the “certify the question” language?  A long time ago there was a procedure for certifying questions during oral depositions, but that procedure has not been around for years.  Nowadays when an attorney blurts “certify the question” the attorney is showing his or her age.  Under the Texas Rules of Civil Procedure, there are no special words to say to empower the court to rule on objections or instructions not to answer.  As Rule 199.6 plainly states, all that is required is that the asking party request a hearing “at any reasonable time.”

So why do attorneys still “certify the question?”  The practical reason is to alert the court reporter to mark the question so that the party asking the question easily can find the particular part of the transcript that is at issue.  Theoretically an attorney could use any descriptive term or language so that the term is easily searchable once the transcript is available.  I have heard attorneys request the court report to mark the question, and the court reporter then notes in the table of contents that there is a question marked with the page number.  Whether you certify the question or mark the question, you just need a way to find the disputed question so that you can put the disputed question before the court in a hearing “at any reasonable time.”

So the next time you hear an attorney certify the question, you’ll know that certifying the question in an oral deposition is just a way of highlighting the transcript so that the attorney asking the questions can go back later and review the question and decide whether the attorney wants to move to compel the witness to answer the question.  And the next time you believe that you are entitled to an answer to a question that the witness will not answer, look straight at the court reporter and say “hakuna matata.”

Copyright: chagin / 123RF Stock Photo
Copyright: chagin / 123RF Stock Photo

Of all the methods of discovery permitted under the Texas Rules of Civil Procedure, Rule 194 Disclosures are often the most overlooked. Although this type of discovery is exchanged in virtually every civil matter, it is easy for attorneys to become formulaic in their approach to answering disclosure requests. Rule 194 provides parties with the framework for discoverable information under the Texas Rules.

Specifically, Rule 194.2(i) permits parties to request disclosure of “any witness statements described in Rule 192.3(h).” The Rules define witness statements as: “(1) a written statement signed or otherwise adopted or approved in writing by the person making it, or (2) a stenographic, mechanical, electrical, or other type of recording of a witness’s oral statement, or any substantially verbatim transcription of such a recording.” Tex. R. Civ. P. 192.3(h).

At first blush, this provision appears to encompass traditional written accounts of an event, such as incident reports, statements provided to a governmental agency, or recorded accounts taken pursuant to an internal investigation. However, it is important for attorneys to consider other forms of statements which may not fall under the purview of those traditionally provided in response to disclosure requests. After all, if a party wishes to introduce such a statement at trial, it must have been disclosed to the other parties pursuant to Rule 194. See Tex. R. Civ. P. 193.6 (stating that, as a general rule, “[a] party who fails to make, amend, or supplement, a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness . . . who was not timely identified.”).

With this in mind, and with the influx of the use of social media and other forms of new technology, it is imperative that parties disclose any posting to Facebook, Twitter, Instagram, or other statement given on the internet in which the person making the statement can be identified. Similarly, parties need to disclose quotes given to the media, whether such statements be in written or recorded form. Should a party wish to offer these accounts into evidence at trial, they must be included in the party’s responses to Requests for Disclosure.

The implications of this are two-fold. Not only must an attorney cast a wide net on what courts may consider to be “witness” statements under the Texas Rules of Civil Procedure, but there are also lessons to be learned when counseling your clients. Texas attorneys must be diligent in reminding their clients that any post to social media or any statement given to the media regarding the subject matter of a lawsuit may come into evidence at trial. We have seen myriad examples of the negative implications of posting to social media without considering the potential consequences of making such a statement. Beyond public embarrassment and negative implications from the person’s employer, a simple Facebook post or tweet could have significant bearing on the evidence admitted in a litigation matter should a lawsuit ensue.