Texas attorneys know the Pattern Jury Charges as valuable guide to properly instructing a jury at trial. But most don’t know all the work that goes into creating and updating the various volumes. In this episode, Todd Smith and Jody Sanders visit with Judge Dan Hinde, Chair of the State Bar’s Pattern Jury Charge Oversight Committee, about the process by which new editions are developed and published every two years. A board-certified civil trial lawyer who spent more than 10 years as judge of Harris County’s 269th District Court before becoming a partner at Schiffer Hicks Johnson, PLLC in Houston, Judge Hinde discusses his experience on the bench and the PJCs’ importance and utility in jury cases. He also provides insight on the work that goes into each volume and its subsequent updates and how attorneys throughout Texas work to provide practitioners with the best possible resource to use when preparing jury charges.
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Overseeing The Texas Pattern Jury Charges | Judge Dan Hinde
Our guest is former judge Dan Hinde from Schiffer Hicks Johnson PLLC in Houston. Welcome to the show, Judge Hinde.
Thank you for inviting me and having me.
We generally like to have our guests introduce themselves, give their elevator speech, as it were. Why don’t you tell our guests generally about yourself, your background and maybe the early part of your career?
I’m a partner at Schiffer Hicks Johnson in Houston, practicing Complex Commercial Litigation as well as handling ADR work. Before I joined the firm at the beginning of 2019, I spent a little over ten years as a judge at the 269th District Court of Harris County. In Harris County, we divide our courts up by subject matters, so we have criminal courts, family courts, juvenile courts and civil courts. I had one of the civil courts.
I handled mainly civil lawsuits but had a little bit of quasi criminal activity along those lines. I was there for over ten years. Before I went on the bench, I practiced law for about nine years at Vinson & Elkins and had moved to a trial boutique for a few months before the governor appointed me to fill the vacancy in the 269th.
Before that, I clerked for U.S. District Judge Sim Lake in Houston, in the Southern District of Texas. I was there for two years. That’s back when just about everyone did a District Court clerkship for two years, and it was an amazing two years. I got there by way of the University of Texas School of Law. I graduated in ‘97. While I was there, I was on the Texas Law Review Editorial Board. One year I participated in their musical troupe Assault & Flattery. I was in the band. I also was involved in what was called the Aggie Law Students, which you can imagine was an interesting group to have at the University of Texas School of Law.
In fact, I led a yell practice outside the office of the dean of the law school the day before the bonfire and had my picture taken and published in The Daily Texan the following day. In the ALS, we called it the A&M School of Law in Austin, but we were in the minority on that front. Obviously, I went to college at Texas A&M, received a degree in Electrical Engineering and promptly went to law school. That’s how my adult life got to where I am right now.
I have a great number of Aggie friends who happen to go to that law school. When I first encountered that phenomenon of the combination of Aggie and UT Law grads, I always asked them how they could live with themselves because they were a walking contradiction.
Once an Aggie, always an Aggie.
You all seem to have persevered. Some very good lawyers with that combination of degrees. I’m interested in knowing a little bit more about your clerkship with Judge Lake. We’ve talked on the show about basically every variety of clerkship that can possibly be had, but largely in doing what we do, most of the time what you see is Appellate Court clerkships. We have had a few people who’ve had some District Court clerkships on the Federal side.
We’ve had a few Federal district judges. Jeff Brown was on our show. He is a unique animal in the sense of his experience on the bench, but being on the Federal district bench, he had done that for a while when he came on as a guest. Tell us generally about your experience clerking for Judge Lake. He’s a legend.
It was pretty much the best job I’ve ever had, even when I was the boss of my own court. Working for Judge Lake, he’s an immensely intelligent man and yet he doesn’t flaunt it. He would have hearings every Friday afternoon and he’d spend the morning just going through the files for the cases that were set for hearing in the afternoon.
It seems so many times he would know the case better than the lawyers who were before him. He would never flaunt that or say that, but he’d ask them questions to show he had consumed some details about their case that maybe the lawyers had overlooked or that they hadn’t focused on before. It was amazing watching him. He didn’t lord it over people or flaunt any of it. He was very humble in that sense.
He’s immensely intelligent. In my experience watching him, he brought an amazing temperament too. I only saw him raise his voice in court twice in two years I was there and neither time had he actually lost his temper. It was calibrated to accomplish a specific priority, like he had a witness that was about to jump out of the witness stand, come after someone, and he raises his voice so the witness remembered who was the boss, at that point.
There was that combination. People don’t realize this. He has a very good sense of humor, but it’s so deadpan and he’s got a reputation of being so intelligent and knowledgeable people walk in his courtroom a lot of times very nervous that he’s going to ask a question they don’t know the answer to or they’re going to be caught flat-footed. They don’t know when to let their guard down and realize that he’s trying to inject a slight little bit of levity in there to bring the tension down.
It was just a fantastic opportunity. I’m biased because I did a District Court clerkship instead of an Appellate Court clerkship, but I thought I got the best of both worlds because he sat by designation on the Fifth Circuit several times. When he was on a Fifth Circuit panel, he used us like Fifth Circuit law clerks, so we wrote a bench memo. He took me to New Orleans for an oral argument.
While I didn’t do day in and day out the work that the appellate clerk did, I did do enough of it to have the flavor for it while also having all of the experience of what happens in the trial court, unless you’re doing immigration appeals or certain regulatory actions, you got to go to the trial court before you get to the Appellate Court. Getting that experience on how a single judge approaches and analyzes things and reaches their decision is an incredible insight to bring to the practice of law.
District Court work and also some Fifth Circuit work while you’re there. You mentioned being appointed by the governor to the trial bench and having served there for ten years. Did your experience with Judge Lake influence how you conducted your own courtroom while you were sitting on the trial bench?A great judge is able to manage a case with the right touch; not too heavy handed and not too light handed. Click To Tweet
I think there was no way it could not have influenced it. One of the things that made Judge Lake such an incredibly good judge is he has a very methodical and systematic approach to his job. He taught all his law clerks and me step-by-step analysis, sober reflection, even temperament and everything. A lot of what a judge does is managing a docket or a case with the right touch, not too heavy-handed and not too light. One of his sayings is the most important tool for generating settlements is a firm trial setting.
In every case, as soon as an answer was on file, I’d issue a docket control order. With the trial date, the state courts have a volume of cases that is orders of magnitude larger than the Federal courts. It’s harder to say we had firm trial settings in the state court than we had in Judge Lake’s court, but the concept was still there. We can listen to lawyers and modify it and adjust it to the needs of everyone’s cases in that particular case but set that up early so everybody knows what the deadlines are so that they can start prioritizing their work. That’s a way that the judge can assist the lawyers.
Another thing was just getting the work done on time. Lawyers want the ruling to go in their favor, but they at least want a ruling. If you’re not getting rulings out, then it grinds the case to a halt. The case isn’t going to settle because you haven’t ruled on the pending motion for summary judgment. Judge Lake knew that and I learned that. I figured one of the things I had to do is I tried to get the decisions right, but I had to get them out on a regular basis.
Every judge does it differently, but I did all my uncontested orders on Mondays because you get a flood of different things all throughout the week in a state court. If you just start doing things as they come in, you’re never going to be able to focus and get things done in a regular matter. I said, “I’ll do all my uncontested orders, nonsense dismissals, substituted service, things of that nature, agreed orders and do those on Mondays.” My clerk would know to pile them up. Unless a lawyer called and said, “We need this sooner than Monday,” and then we try and help them out there.
On Tuesdays, I would do my written submission docket. In Harris County, we do the deadline for written submissions, 8:00 AM Monday. I still waited a day in case anything came in late and then I would spend Tuesdays reviewing all the written contested motions that weren’t going to have a hearing. Wednesdays, I would look at the dispositive motions and the Daubert motions that are set for Friday because those motions usually were longer and more detailed. We needed more time to look at them and they were usually less likely to actually get past as opposed to a motion to compel or some of the other things.
Thursday, I would handle getting ready for the other matters I had set for Friday and then Fridays were my hearings. All this time, I could be in a trial at the same time too. You had to learn to manage your time and juggle it. That’s one of the things that Judge Lake is a master at, focusing and prioritizing. He had a saying, “Never let the urgent crowd out the important. The judge decides what’s urgent.” You do that with input from the lawyers.
If the collateral is being loaded on a ship in the port of Houston bound for North Korea, then you probably can’t wait until tomorrow to decide on that. You probably need it so that the order can get down to the port in time if you agree to grant it. My discovery deadline is in a week and I forgot to issue any discovery. It’s an emergency that you give me an extension on my discovery deadline.
It’s important to the lawyer. I’m glad that they raised this before the deadline, but it might be something that I may not get to until tomorrow or something like that. Learning prioritization, time management skills and so forth were key influences on how I did things. I’m sure there were tons of other things that I absorbed through my time with Judge Lake that came out while I was on the bench myself.
As a state court judge, we learned that there’s an indirect connection between you and Jody because of Jody’s experience clerking at the 269th. Let me let Jody take this line of questioning. How did that work with your clerks? Did you have any permanent court staff or did you rely on interns in terms of helping you produce the legal work? What was the job that you did for Judge Lake?
From time to time, I would have interns. There was a law clerk that Judge Wooldridge had hired that was still there when I took the bench. I kept him on until he finished whatever term and he was about to graduate from law school. He had a job waiting for him. I kept him on. I didn’t hire a law clerk. The difficulty I experienced with that is unlike the Federal courts and the Courts of Appeals, there’s very little budget for a law clerk for the State District Courts. At least here in Harris County. We were basically given a budget where we could pay $11 an hour. The only people who were on that pay scale that would be interested would be law students. The difficulty there was you’d have them for just a few months.
By the time you got them trained up, they were moving on. The areas where I could use legal-wise that helped the most were areas where I was going to need someone who was going to be around longer. I found myself when I would have law student interns, I was handing them off stuff that I knew was extremely boring for them. It’s useful for them to learn, but if you’re not being paid or you’re only being paid $11 an hour, you can only tolerate so many motions for default judgment before you go insane. It was fome for me because I was paid a salary.
The other difference is the state district judges don’t have to write opinions. Sometimes we will, but you don’t have to. We’re basically just signing orders. It seemed like a lot of make-work to send projects to an intern or a law clerk to write up a memo recommending what I should do when our local rules require both sides to submit proposed orders. If I’m going to grant and assign an order, I’m going to deny and assign the other.
I didn’t think that I was going to be giving the law clerks a very good experience other than they’ll get to see a lot of trials, which would be nice, but it didn’t seem like it would necessarily be the kind that they were signing up for. I didn’t feel right in bringing people on to do that. I did find one area where it was productive. That was in high school and college interns to be quite honest.
I couldn’t give them legal work like review and analyze this motion for summary judgment, but there’s so much else going on inside a court that we could use help on because we’re so understaffed that you could have interns helping out on that front. It’s not the legal work, but there was another type of work out there. I found a few diamonds in the rough in that process and one of my college interns went on to be one of the chancellors at UT Law School, and then clerk for Judge Lake, and now is an associate at Gibbs & Bruns.
She did it all on her own, but I’m still going to try and take credit for finding, discovering and setting her on a path. She’s incredibly bright, intelligent and is going to be a great lawyer, but that’s how I did it. Frankly, I’m going to blame it on the budget. If we had a budget where I could have paid a law clerk like the Courts of Appeals can pay a briefing attorney, I would have hired one but we didn’t have the budget for it.
I completely understand that and I think I was making $10 an hour when I did it. The thing that was great for me was the flexibility of it. I could come in for a couple of hours here, couple of hours there and that’s what worked well, but it was a good experience. The best part was getting just to see all the trials because you got to see so many civil trials on every possible thing you can think of because Houston is just such a great legal market, which is what I loved getting to do. That was a lot of fun.The most important tool for generating settlements is a firm trial setting. Click To Tweet
Now that I mediate cases when I introduce myself to the parties, I tell them, “I was a judge for ten years in Harris County. If there’s a case that can be brought in a civil court in Texas, I’ve seen it.” After ten years, an oil and gas royalty case here in Harris County is still producing and paying quantities. I even had that to tell them about it. There were those experiences there. We see all kinds of stuff in the State District Courts in Harris County. You did get a great experience seeing that activity.
I hadn’t thought about it that way, but what you said hit home. That ten years on the bench as a trial judge, I can totally see how in your ADR practice and your complex commercial practice would be a huge advantage to having seen so many cases come and see what has worked in terms of strategy among the lawyers over that period of time and what hasn’t just as importantly and be able to not only guide lawyers as a mediator. Are you doing arbitration work too, or is it primarily a mediation? Then you continue to be the decider, as it were. I’m sure it’s a role you’re comfortable with, but also extending that into the litigation world as well. That has to be a nice advantage for you.
It’s been helpful. I’ve mediated several trade secret cases, non-compete cases, amongst other things. I saw the good trade secret cases that resulted in jury verdicts for the plaintiff. I saw the cases that didn’t even get a TI granted. I can tell folks in mediation, “I don’t get to decide who’s right or wrong here, but there’ve been times I’ve told the plaintiff, I’m not seeing the evidence I would see in winning cases like you did a forensic audit of the laptop and you discovered that they downloaded 10,542 files 1 hour before they walked out of the building for the last time.”
Those are the cases that usually result in a favorable ruling for the plaintiff, or I can say to the defendant, “I don’t get to decide this, but they’ve got a ton of evidence on you and you’re going to have to do a lot of explaining in trial to explain why you took 15,000 files an hour before you left the office.” It does help on that front.
One of the major reasons why we asked you to come on the show is because of your position as chair of the oversight committee for the pattern jury charges, among the different committees that exist. You can probably list them off without being prompted. By way of background for the reader, we have several different volumes of pattern jury charges that lawyers and judges get together and produce.
By way of example to move things along, we have general negligence and intentional personal towards in workers’ compensation volume. There’s a malpractice premises and products volume. Business consumer insurance and employment volume, which I was fortunate enough to be a member of that committee for a few years. Then we also have a family of probate and then separately oil and gas, but those are 5 or 6 committees that I rattled off.
Don’t forget the criminal.
I can’t forget the criminal.
They have three volumes.
Thank you for correcting me on that. It is important. One thing that folks don’t really know much about, I don’t think, is that oversight committee. The additional committee is on top of all of those. Tell us your role on that committee and what it does?
You rattled off the names of what I call the subject matter committees. Each of these committees, their responsibility is the subject matter of their volume and looking at the pattern jury charges, see if there is any need of revision, deletions or anything new needs to be added. There are 6 committees with 8 volumes and we want consistency in the way we charge juries across the state. That’s why we have a pattern jury charge. The finding several years ago is when we’re starting to see some different paths taken on some common matters amongst the various subject matter volumes. For example, proximate cause is going to be charged or found, in general, negligence is going to be found in malpractice.
It’s probably going to be found in oil and gas and probably in business and commerce because you will have some torts in there, proximate cause as a doctrine. We want to make sure that all the volumes charges instructions on the proximate cause are consistent with each other. We don’t want to have something where the plaintiff is proposing PJC X.
They can point chapter and verse on this instruction job. The same topic is also in another volume, so the defendant’s giving a different one and the judge is going, “There is a difference between what these instructions or these charges say. Are they material? Why do I have to decide this? Isn’t that the point of if I’m going to go by the PJC, should I nail this PJC?”
One of the reasons we have the oversight committee is to look for problems with consistency on cross-volume documents. I gave proximate cause as an example, but there are other areas. Every one of these volumes has a chapter on preservation. There are others about the whole process. We have Rule 226A, the mandatory boilerplate that has to go in jury charges and so forth. There’s stuff that’s common through all of them.
Oversight is there, first of all, to watch out for making sure everything’s consistent with each other, with the law. That’s another issue that we need to make sure it’s consistent with the law. It’s also consistent with the way that we instruct juries. We do broad form here and some volumes have more experience in broad form charging than others and writing charges. If you spend enough time reading the PJC, which as a trial judge I spent a ton of time reading, you absorb it and it’s almost hard to iterate exactly how to write charges, but there’s a way that we write them.
You get a sense for the feel that we write them. There are rules and standards that we go by for that. Part of the oversight process is to make sure that we’re still doing that. An example, our negligence question is did the negligence of Don Davis proximately cause the injury in question. If not, do you find by a preponderance of the evidence that Don Davis breached his duty of care and that breach proximately caused injury, that injury proximately resulted in damages?
Sometimes when we’ve had some volumes look to create a new charge for a topic that we haven’t had a turn for, we’ll get a question that starts out with, “Do you find by whatever the standard of evidence?” You have that and another thing we try to do with our questions is keep them simple sentences. They’re in the question form, but they’re usually simple sentences with certain keywords in there and then we unpack the keywords in the instructions below the question.
For example, with negligence, we then have a definition. Negligence is the failure to use ordinary care that is failing to do that which a person of ordinary prudence would do in the same or similar circumstances or not having done that which a person of ordinary prudence would do in the same or similar circumstances.
I’ve read that instruction 100 times, so I know it. That’s the way we approach it. Sometimes you would have proposals from various volumes that packed a lot of that, usually to put instructions into the question. We’re also trying in oversight to ensure that we’re asking the questions in the same way. Criminal’s a little different story because they’ve approached jury charges differently than the civil courts have.
There’s a little bit of a different approach there. We’re still trying to make sure that they’re consistent within their volumes and with some general topics. We also do a last check before you get in front of a judge to make sure that the law is right. There have been a few times when the oversight committee has looked at something and asked the subject matter volume to take another look as it seems like our understanding of the law was not consistent with what they had proposed. That’s another process that we serve there.
Do you come to that stuff independently? Do you do a De Novo review of everything or is it people bring up specific issues to you or maybe a combination of both? How did the issues end up with the oversight committee?If you just start doing things as they come in, you're never going to be able to focus and get things done. Click To Tweet
We mostly wait for the volumes to send stuff to us. Anything that the volumes want to change, add or delete from their next edition comes up to the PJC Oversight Committee. We have a two-year cycle for each volume. Soon after their newest addition, they’ll start with working on new stuff and they try to send it to as piecemeal over two years instead of waiting until right before the publication deadline because there’s no way we could approve them. Usually, it’s a matter of waiting for those volumes to bring stuff up because they have some long-term projects. I believe the business volumes have been working on a rewrite of the contract chapter for several years.
I’m hearing word that we may be seeing that pretty soon at PJC Oversight, but that’s not something you just do in 1 or 2 meetings for a subject matter. They put a ton of work into that. As we have enough work, there’s not much of an occasion for us to make work unless it’s on a topic that touches more than one volume.
For example, years ago, when the Supreme Court handed down the Rohrmoos Venture case on attorney’s fees, where they said, “We meant it in El Apple.” Justice Green was the chair of the oversight committee. She didn’t ask the subject matter volumes. She formed an ad hoc committee that included members of all of the subject matter volumes and members of the oversight committee to look at it and see how is attorney’s fees being charged in all the volumes and how we should change it if at all to stay consistent with Rohrmoos Venture.
There will be situations where we see something major like that and we’ll make a suggestion, “We think you all should go look at this now. It looks like there may be a change here that we need to adjust to the PJC.” It’s mostly driven by what the PJC volume committees are generating, not what we’re asking them to do.
You mentioned the preservation of error provision that appears across volumes. I assume that was the same working process. That’s something that has plagued practitioners for generations, almost it seems.
That one’s a little different because I believe that we may be seeing in the 2022 volumes some more revisions on that. I believe some of the volumes are working on that. Sometimes the volumes on their own work together. There’s a lot of overlap between general negligence and malpractice. They will on their own reach out to each other and say, “We need to go look at this.” On the preservation of error, we just looked at something for the family volume on that, but it is tricky and it touches on another thing we have to be careful with all the PJCs, what our role is. It’s not to be a treatise and it’s not to tell people how to brief things.
It’s more to touch on the major legal issues and the major legal doctrines that are governing this. The reasons why something’s in there and so forth and give people notice, “Here’s an issue with this charge or this instruction,” with the idea that, “The lawyer needs to go out now, the judge needs to go out now and research that issue if they want to make an issue of it.” Preservation of error is something that crosses volumes. Sometimes they take their own initiative. They see something and they want to suggest something. That’s the way they’ll get the conversation started.
How do people get involved with the PJC process and, in particular, the oversight committee?
These are all committees of the State Bar of Texas. They go through the same process for appointment as any of the other state bar committees. You can go on the State Bar website.
There’s a link or a place where you can express your interest in being considered for one or more committees and then there’s a process. The folks at the State Bar ultimately are appointed by the President of the State Bar and confirmed by the board of directors of the State Bar.
You can reach out if there’s a particular committee, if you know members of the committee, you go talk to them or if you know the chair of a committee, go talk to them. There are different voices in that process. Start with looking at the State Bar website. It’s a process that usually you can start signing up sometime in September or October for the following year.
The PJCs are not treatises, as you say. I have found that in addition to doing charge work and preparing charges, that they’re a phenomenal research tool just from the standpoint of knowing what the Black Letter Law is on a certain issue and using that as a starting point, like a very scaled-down version of maybe O’Connors, but obviously not meant to be comprehensive. You read the question. You read the instructions.
You look in the comments below and you typically see the key cases like, as an example, you mentioned attorney’s fees and Rohrmoos. That question has been updated quite a bit in light of that case, but that’s the process. The committees are charged with keeping up on what the latest issues or the emerging issues are that could influence how the juries are being charged in using these questions, instructions and definitions. I’m surprised sometimes by how helpful the books are and getting me to a starting point if I’m struggling a little bit with what the law is on a certain topic.
They’re great finding tools. That’s the way I think of them, the same way as the professor’s case book. You don’t look at the case book as all the binding precedent on the first amendment or whatever, but it’s going to tell you what the major cases are that you want to start with. I remember, back when I was on the bench, I had a case where it was a bench trial, but I needed to talk about whether a breach was material or not. I went to the PJC to find out, “What’s the case that talks about materiality. It’s a missing pipe.” That sent me to the right case, rather than trying to come up with a Boolean search on Westlaw or something like that. You just go to a PJC and it tells you what the major precedent-setting cases can be.
Every two-year process, you went through a round of revisions for 2020 that came out. What were some of the things that changed for some of the 2020 volumes? I’m not asking you to tell us every single thing because I know that’s a ton, but were there any big issues that came up that the oversight committee was concentrating on?
The oversight committee concentrates on so much as we know it was a big issue for the volumes, because I don’t want to understate how much work the volume committees and their members do on this. These are big issues for them and sometimes there are some controversies with us, but some of the big things we revised attorney’s fees, the business and consumer volume revised the chapter on piercing the corporate veil that has asubstantial change or update on that.
The general negligence and the malpractice volumes had a couple of major changes to pre-existing conditions. That was probably the most substantial or the most visible work that they did because part of it was what’s called the Eggshell Skull Plaintiff doctrine. Whether and how that should be charged and instructed also looped into the general instruction for pre-existing conditions.
There was a lot of work. We have great lawyers. We try to make sure on all the volumes that we have lawyers for both sides of the bar. You have plaintiff’s lawyers and defense lawyers, and sometimes there are some very strongly held views that don’t always mesh, but that’s why we have this committee process. That was one where that was going on. The business volume also had a major look into the fraud question and the elements of fraud and particularly the reliance element.
You couldn’t tell it by looking at the actual revision that they made to it, but an enormous amount of work went into their suggestion that justifiably be put in brackets in the element for the reliance of the question on fraud. You see one slight change on the red line, but there was a ton of work that those lawyers did in trying to figure out whether and what to do about that.
The negligence volume also added some material on uninsured, underinsured motorist claims and there are some changes to the defamation provisions in the business volume. The oil and gas volume added a few items. They added a question on statutory waste and a provision on the reasonably prudent operator events. There’s more, but those are some of the big things that the various volumes had worked on for 2020 additions for those volumes which came out at the beginning of 2021.Learning prioritization and time management skills are key influences on how you get things done. Click To Tweet
I hear you go through that list and almost to a point on each one, I can think of maybe some of the drivers for the changes that were made. We’ve talked about Rohrmoos already on attorney’s fees, piercing the corporate veil. It’s not a recent statutory change, but the legislature and some of the case law have made clear what you have to show to get there to pierce the corporate veil. It’s not the old Castleberry versus Branscum standard, which so many lawyers don’t know and maybe you don’t until you pick up the PJC volume. I was in the room for some of those discussions and you’re right. That’s a good cross-section of the bar, debating what the Supreme Court meant when it held in such and such case. Did it mean to change the law as this significant effect on the law? Those are the kinds of debates that go on with this.
I didn’t even hold anything on that as it mentioned it in passing as it was addressing a different issue.
I remember one debate on the Rohrmoos point on attorney’s fees that someone was of the view that most of the analysis in that Paul Green decision was dictum. That’s the thing that you have to look at, but then you mentioned defamation too. That is such a tricky area of the law and the Supreme Court has had a significant case in the last years on that issue that seemed to adjust the law fairly substantially.
These are all driven, it seems like, by just monitoring and keeping in touch with how the law is evolving, whether it be over my statute through what the legislature is doing or through the common law, mostly through what the Supreme Court is doing, but sometimes not, sometimes paying attention to trends in the Courts of Appeals too.
As another example of that, I’ll mention trade secrets because I know that was a struggle, and a big job to the committee as it had to draft a set of instructions and questions from whole cloth when the legislature a few years ago enacted the trade secrets statute. It’s also worth mentioning those maybe a point for further discussion that the courts don’t necessarily accept these PJC instructions, definitions and questions as gospel.
I’m interested in knowing from your perspective as a former trial judge, did you feel like you could pretty well rely on the PJC as adequately stating the law? Maybe we’ve already answered that question because we’ve been bragging on what a good resource they are, but sometimes the Appellate Courts have said, “That’s not exactly right. We’re going to reverse a decision in which the jury was charged correctly under the PJC, but the courts have found that to be an error.” What do you have to say about that?
It’s ultimately the courts that decide those things. The challenge that we have with PJC is there are fewer opinions with the Supreme Court or Court of Appeals that are addressing a lot of these legal issues in the context of charge error. That’s one of the challenges I mentioned earlier about how we have a consistent way of writing things, writing instructions. A lot of times, people will say, “I got this blurb straight from Smith v. Jones.” It was part of the boilerplate throat clearing that the Court of Appeals did in one paragraph on a summary judgment before the Court Appeals turned to the issue in the case, which didn’t have anything to do with that doctrine.
One of the challenges is finding cases where there’s charge error because, to me, as a committee member, they’re the most helpful in terms of figuring out how to craft a pattern jury charge. That’s part of it. As a committee member, I don’t mind if the Court of Appeals or the Supreme Court says, “This PJC has it wrong,” in the sense that we’re trying to do better. We’re trying to get this right. If they say, “This PJC is wrong,” and we said it years ago, when we held that this language that you use is wrong, that’d be a different story, then I’d be embarrassed.
All the work that the subject matter volumes do and the oversight committee does once we publish, a ton of work has gone into trying to figure out what the courts say about this. In terms of when they say, “I didn’t get it right.” Proximate cause is an example of that from many years ago when the Supreme Court adjusted the way to phrase it to be a more producing cause from DTPA in Ledesma.
Sometimes the PJC has got to go with what it’s got and they don’t have good case authority. Supreme Court or the Court of Appeal feels like they need to clear the air about certain laws. There is authority out there, although I don’t know that it’s necessary binding authority that when the charge error is an error where the court went with the pattern jury charge, reviewing court has the discretion to remand for a new trial instead of rendering judgment, because everybody was following the PJC so in the interests of justice, since they were following the PJC. It’s fair to go ahead and let’s try it.
This isn’t a case where you didn’t try to get the jury charge right. You ignore the PJC or some witness. It’s not necessarily mandatory that they remand for a new trial, but there are Supreme Court cases, which one it is in a Court of Appeals cases, that will say it’s appropriate in that situation when there’s the charge error to remand for a new trial.
That’s an advantage there of using the PJC. I’m speaking for myself, I wish I could say I speak from most judges, but I don’t know the opinion of most judges. I thought the PJCs were a starting point, but if the lawyers could show why this particular case, in a supported, a departure or an adjustment to it, I listened to it. If they’d made a persuasive argument, I’d go with it.
Sometimes you look at it and you also wanted it in that situation to be set up in a way to where the issue wasn’t going to be waived on appeal. Whatever I decided, if it went up on appeal, the Court of Appeals is going to have a chance to make the clarification needed to you. You try to avoid coming up with waiver arguments and everything.
I usually started with PJCs if there was a PJC on it. I tried trade secret cases at least once or maybe several times before we had PJCs on it. There is a common law trade secret. I had to come up with charges based on what the lawyers had suggested in their submissions. I had to do an adverse possession case. Until the oil and gas volume was first published, we did not have PJCs on adverse possession. I had to try and figure out how to charge adverse possession. Oil and gas came out with it for oil and gas cases and we talked about it in oversight.
We suggested, “We know you all are oil and gas. We know that you’re focused on oil and gas cases, but understand no one else and none of the other volumes have this. People who are trying to have adverse possession cases that don’t have anything to do in oil and gas now look at this. Let’s try and write this to where it is appropriate for oil and gas, but it’s also useful for non-oil and gas purposes. They were receptive to that idea.” I don’t recall if it’s migrated into any of the other volumes yet or not, but it was oil and gas I believe that first had adverse possession.
The three of us could probably sit here and talk about nerdy jury charge all afternoon. We are coming toward the end our time with you. I do want to mention before we go, you did write and present an article at the UT Conference on State and Federal Appeals in Summer 2021. Thanks for sharing that with us. Jody, do you want to take the next phase?
As we’re closing here, it’s our tradition at the end to always ask for a tip or a war story. I mean, you’ve given us a lot of great info about the PJC, but I wondered if you had a specific tip or maybe a war story from trying cases on the bench or anything else that you’d like to share with our readers?In court, you have to make sure that all the volumes, charges, instructions, or proximate cause are consistent with each other. Click To Tweet
I thought about being pithy, like if the document camera isn’t working, check to make sure the lens camera is off before you tell the judge it’s not working or directed to the PJC. Look at the PJC before you submit your proposed charge. I had a bank fraud case, the plaintiff put together a $30 million or $40 million damage model.
Post charge, the damage asks what sum of money, if they only pay now in cash would fairly and reasonably compensate. Paul plaintiff for the fraud you found in question one, and he had to do the line items for the specific measures of damages and line item A was compensatory damages period. The defendant objected because that did not adequately guide the jury in what the measure of damages was.
I looked at the plaintiff’s attorney, “What’d you got?” He’s like, “I got compensatory damages.” I had to sustain that objection. I gave them all the time possible. I gave him a chance to request an instruction after we did the defendant’s objections. This was an example I like to highlight of professionalism, how we can be good lawyers without being mean to each other. The defense lawyer handed him the business and consumer PJC volume so that this guy could try and write up a request of instruction for the damages. He didn’t bring his PJC with him. That’s another one.
Bring your PJC with you to court. I respect the defense lawyer because he could have been a jerk about it and not hinted that he had a PJC. He said, “I’ve got a PJC. Do you want to look at it?” That was one of those things where I was proud of our profession, seeing a lawyer do that because he wanted to win on the merits. He didn’t want to win and put this guy into a malpractice case because he forgot his PJC. Those would be my two war story tips is checking the lens camera, bring your PJC, look at it beforehand and make sure you know what the measure of damages question is going to look like to the jury.
Thank you. Those are great tips and this has all been great information. We appreciate you giving us your time.
You’re welcome. Thank you for inviting me.
- Schiffer Hicks Johnson PLLC
- Jeff Brown – Previous episode
- State Bar of Texas
- @JudgeDanHinde – Twitter
- UT Law CLE Materials Catalog (utcle.org)
- Daniel E. Hinde – What’d I Miss – article on PJC revisions
About Judge Dan Hinde
Dan’s experience spans the full range of civil trial and appellate litigation, focusing on complex commercial disputes, internal governance controversies, non-compete cases, and trade secret litigation. He joined Schiffer Hicks Johnson in 2019 after 10 years as judge of the 269th District Court of Harris County, Texas.
During his time on the bench, Dan tried nearly 300 cases and resolved more than 15,000 matters. Known for his level-headed, analytical approach to the law, he built a strong reputation as an efficient and ethical adjudicator. In 2017, after Hurricane Harvey devastated the Harris County Jury Assembly Building, Dan led the effort to redesign and restore the system for summoning, welcoming, and assigning juries for 85 trial courts in Harris County.
Before his appointment to the court, Dan worked as a trial lawyer in the Houston office of Vinson & Elkins. In this capacity, he represented both plaintiffs and defendants in a wide variety of cases—including commercial, construction, corporate governance, employment, energy, maritime, mass tort, non-compete personal injury, products liability, securities fraud, technology, and trade secret litigation. He has also prosecuted criminal cases and represented indigent defendants challenging their sentences.
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