Jury Charges And Ora ...

Jury Charges And Oral Argument | David Keltner

January 26, 2023 | by D. Todd Smith

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When people think about appeals, they may not realize that some of the most important appellate work happens in the trial court. One of the keys to a successful appeal is making sure that the jury charge includes the right questions and instructions or that error is preserved from the failure to do so. In this episode, Jody Sanders and Todd Smith continue their conversation with David Keltner, who shares his unmatched expertise in crafting and objecting to jury charges. David also offers his insights on oral argument and ways to use that time valuably to assist an appellate court in crafting the most favorable opinion.

We’re back with our second episode with David Keltner. We’re going to dig into a little bit more substance. We talked about the history of David and Appellate Law in Texas. We’re going to talk some more nuts and bolts stuff. One of the things I want to start with is the court’s charge because, as you alluded to in the last episode, there are probably few people in Texas that know more about how to submit a jury charge than you do.

One of the things that struck me when I first started doing appeals because I started doing them with you was anytime you got a new case in from a jury trial, the first thing you did was take the charge and the charge conference. You got multiple colored markers and multiple colored pins and marked it up. I had no idea what you were doing. Why don’t you explain what that process is, and then maybe we can talk about why the charge is so important? I started doing litigation. The charge was something you did the night before it was due and got on file. I realize now that was not the way to do it.

I can’t wait to hear this.

I’ll tell you why. When you get a major verdict, whether it’s trying to sustain the verdict or reverse it, one of the things you do is you have to look at the court’s charge. Everything runs through the charge. The real truth of the matter is the jury’s answers come from it, but the evidence is what the charge has submitted, as we know. Unless there is an objection, then we have a slightly different look at it, but everything comes through the charge.

Jury Charges: When you get a major verdict, whether it’s trying to sustain the verdict or reverse it, you have to look at the court’s charge. Everything runs through the charge.

You can learn a lot about the case by looking at the charge. You can also see immediately what went wrong by looking at the charge. The courts in recent years, ever since Pennzoil versus Texaco, the Texas Supreme Court has been very interested in how cases are submitted. In the last episode, we mentioned Island Recreational. We didn’t talk about Ebey and the like. We will talk more about that later. Appellate courts pay more attention to the charge than anything else.

What I do is get the charge. I get the charge conference and mark out in one colored pen what was objected to and what was submitted. These things get dense with ink, as Jody is saying. I do it all on one document and call it the master charge. We put it in. Our legal assistant is instructed that it never leaves the file. The file goes with it. The secretary knows who has it at any period in time.

In a large case, I did one that took two days to do effectively with multiple parties and the like. Sometimes people do things. I want to adopt all of the objections my co-defendant made. If the judge says that’s okay, there’s not a whole lot of Texas Law about what the impact of that is. You’ve got to go in there. That can create some other problems. I go through that. It’s a long process, but it’s a process that pays a lot of dividends. You understand the case.

I try to do that before I talk to the referring lawyers so I can ask them questions, “Why in the heck did this go in? What was the evidence that supported this instruction? Did it come from the PJC? Did it not?” I have copies of the PJC. I interlineate those as well. I know generally where they came from. From that, I believe I’ll be able to reverse engineer anything but evidence, admission, and rulings. I’ll be able to determine generally what happened.

It points out to you where a dispositive motion could have been successful and ask whether it was submitted, when it was done, the whole bit, whether there was a directed verdict and all those kinds of things. We get it in time enough for a JNOV. We can error preserve as you did in United Scaffolding. We can do some additional error preservation, but the charge is the guts of the jury trial. If you look at it, it’s the result of the jury trial. Kleber Miller once told me, “If you let me ask the question, I can tell you what the answer will be.” Within some bounds, that’s true.

Maybe we should set the stage a little bit if we’re going to talk a lot about jury charge practice. We had Judge Dan Hinde come on the show. Judge Hinde is the Chair of the Oversight Committee for the PJC. In addition to many other things he’s done, he had a lot of good background information for us. I would refer our readers back to that previous episode. Texas charge practices are different from federal charge practices. You talked about this a little bit in the last episode, but how did we get here?

It’s an interesting deal. I’ve looked at that largely because Walter Jordan, the judge I replaced on the Court of Appeals, was the original chair of the PJC committee. Judge Jordan thought that in routine cases, it was easier to do a cookbook of charges and do it that way. Like any recipe book, you could put in additional things as needed or to taste and, in other words, modify it to your case. That best describes what the PJC process is, but what happened is, if you remember, for the longest period, in the days of the Republicans and soon thereafter, we had a general verdict practice. It is liable on how much. We got away from that because no one could reverse it.

Here was the problem. It goes back to Sam Houston’s time. Sam Houston was also a gifted lawyer. He was, at the time after the revolution in San Jacinto, very much in demand. He would go around and try cases throughout the state, mainly East Texas, because that was the state at the time, especially criminal cases. He would say in almost all of them, “This man was with me at San Jacinto.” Sometimes that was true. Sometimes it was not, but the issue is they can never get a reversal in those kinds of cases.

You couldn’t get a reversal in any transactional case unless you were able to prove that it was impossible to turn out as the jury said it was. You didn’t need appellate lawyers. The whole thing was horrible. Eventually, we started right after the turn of the century, going forward into a more special issue practice. With all things to get over-engineered, it got to be exceedingly specific.

I got out of law school in ’75. In ’73, the state legislature passed comparative negligence for the first time. At that point, the big issue was inferential rebuttal issues. We had amended the rules of procedure to say, “You can’t ask an inferential rebuttal question.” For those younger types who don’t remember, the inferential rebuttal was asking the same question in a negative way or asking a question that would undo the general question. If you would say, “Was it negligent?” the answer to that would be yes, but then you say, “Did it assume the risk?” No. The effect of the inferential rebuttal question would be to conflict with the general question. You couldn’t get a verdict.

First off, we started breaking those apart. This is in the ’30s and ’40s. By the ’40s and ’50s, it was important to have very specific questions. They did them element by element. In Ebey, Island Recreational and the other cases that came up before Ebey was decided, the courts called those granulated charges, but what they did was take each element and submit them individually. The issue is it didn’t make any difference because if the jury was going to go for you in negligence they would answer everything for you, but in some circumstances they would not do that.

It was very specific. It wasn’t who was right and who was wrong. Surprisingly, in the federal system, which came up a different way, it was more of a general charge with no real questions except one on liability but a huge amount of instructions. We still see that. The hangover of that is still in federal court. You can’t tell what the jury did or why they did it, which gave rise to all the poison apple charges, “This was contrary to that instruction. Therefore, it must have impacted the jury verdict.” But if the instruction was wrong because the jury doesn’t know whether an instruction is right, maybe you could get a reversal. Otherwise, you couldn’t.

We became more formalistic. The Pattern Jury Charge Committee was designed to make it easier and more general questions, but at that time, in response to the general question type of thing, any error was harmful. If you look at cases in the ’20s and ’30s, things are getting reversed because of the minutest matters. That was causing cases to be tried time and time again, but the reason for that was, generally, you couldn’t tell by the time it got to the jury what the jury decided.

As we came forward, we got more formalistic so we could tell exactly what the jury was deciding, but it made it harder to recover. You can’t separate any of this from the contributory negligent rule, which was where most cases were being tried in the ’60s and ’70s because even a percent of negligence would bar recovery. When the state bar finally convinced the legislature to adopt comparative negligence, we began to get rid of the inferential rebuttal issues.

Chief Justice Pope, before he was Chief Justice, said, “We ought not to have submitted all things this way.” Things started relaxing. Eventually, we got to Ebey, but before we got to Ebey, we got to Pennzoil and Texaco. If you remember, Luke Soules was the brilliant lawyer on the plaintiff’s side who studied Texas Supreme Court cases and figured out a way to submit a contract issue whether there was a contract. The question there was, “Did the parties agree?” Luke had researched that to a great extent.

The jury, evidently to the extent that there were huge jury interviews, and there were some, said, “Joe Jamail’s final argument had been in Texas when you shake somebody’s hand over an agreement or shake each other’s hand and say, ‘We agree,’ you’ve got an agreement.” That’s all it takes. Remember, this was a merger of Getty Oil into Pennzoil. Eventually, when they reach that handshake, what happens is Getty Oil markets itself to Texaco. Texaco eventually is successful. Pennzoil sues, saying, “You interfered with our contract long before there was a tortious interference cause of action.”

In the issue of an agreement, people realized if you ask the question right, you can get the right answer. The fascinating thing about that is that eventually, the issue on which the United States Supreme Court based its grant of cert in Pennzoil-Texaco was an agreement wouldn’t fit the merger requirements of the SEC regulations. That’s an aside for another day, but that is how the charge got so important.

Todd, let me follow up on your question. What then happened was trial judges knew that it was their responsibility to do the charge. At some point along the line, because we give no help to trial judges, we give the judge a clerk who’s got all kinds of other responsibilities or a court reporter who has responsibilities and no other legal help for most trial judges in state district court.

Courts quickly took what we call the court’s charge in the rules and made it the party’s charge by requiring the parties to submit it. That’s why the burden of proof came to be so important on the issues of what your complaints are. Judges on the appellate courts quickly realized that if a plaintiff had submitted a charge and had the burden of proof on it, there was a different standard on the review on appeal in dealing with that. You won’t find anything in the rules to control that as much as Case Law.

Jury Charges: Courts took the court’s charge in the rules and made it the party’s charge by requiring the parties to submit it. That’s why the burden of proof came to be so important on the issues of what your complaints are.

That changed. That became a very interesting dynamic. At the same time, our sisters and brothers in the federal court process were looking at ultimate questions with a huge amount of instructions. They went another way. Other states like Oklahoma went to an idea where their pattern jury charge is mandatory. If you fit within a particular cause of action, it is an error and automatic reversal if you deviate from their pattern jury charges. That is true in a lot of other Plains States as well, which is interesting, but what happened is as lawyers took over the charge, we had the burden of proofs, which gave rise to the standard of review, which differs based on who had the burden of proof at the trial court level.

The assumption behind those is that it is the person who must have submitted that question. They’re responsible for that. The objections were baked into the rules as they changed to require you to make the objection to the trial judge as a prerequisite to making it to an appellate court. That was a trial judge change because trial courts thought they were being ambushed by lawyers who weren’t fully making the objections to them. There’s some truth to that. I’m not so sure it’s not the judge’s trial. It’s the people’s trial. I don’t completely understand that, but that’s how that got baked in.

I’ll say one thing about our system. If you think about it, it’s logical. If you read the rules and read them again a 3rd and 4th time as if you’re going to understand the Bible, you have to understand Revelations, which is one of the hardest things in the world to understand. For the Old Testament, Deuteronomy is one of the hardest things to understand, but if you read it over and over again, you get it. It is logical. It makes it easier for me to remember, but if you think about all the technicalities, they’re all there to protect the trial judge, making the objections separate to each question even though the same question may be asked.

I’ll tell you this story. I was in San Antonio in an antitrust trial. It was being tried by Fred Bartlit Beck. Skadden Arps was on the other side. He had great lawyers. The other side had Dick Tinsman, who was the best salesman in the room, but the most consummate trial lawyer I ever saw was Fred Bartlit. It was a clash of mighty people. Fred was organized. Dick was not. That probably made all the difference, but when we got to the charge conference, two things happened. One was they had submitted monopoly and attempted monopoly, and then under each had separate questions for the various actions.

We started the charge conference at 5:30 and finished at 3:30 in the morning. Here’s why. On the other side were one of the DeBoses and Richard and Jennifer Hogan. San Antonio, at that time, had one law clerk for all of their district judges. They had been Supreme Court clerks with that guy. He gave their charge. I had the same objection to each of the 40 deals. I had to give the objection 40 times. In the middle of it was John Specia, a sweetheart of a judge. I said, “Judge, the rules say I’ve got to do that.” He said, “That’s unnecessary. I know what you mean.” I said, “I appreciate that. Let me show you the rule.”

He looked at the rule. Gunn was there too. One of the funniest things I ever heard was, “Do I dare?” I said, “I can’t.” I did the objection to each one of them separately. The whole reason for that rule is trial judges didn’t want you to bury an objection. That’s silly except for the fact that years ago, I tried a case against a great trial lawyer, Bob Gibbons. Bob ended up in Austin, but for the longest time he was in West Texas.

It was an insurance case. The judge gave his charge. I started going through it. Bob fell asleep during the charge conference. I’m sitting there. I get in. I have one good objection. I buried it in between a couple of bad ones. Gibbons’ eyes flash open. He looks at me and says, “Let me hear that one again.” I’m guilty of trying to sandbag them too. If you look at it, the idea that a good objection obscured by bad objections obstructs the trial judge. The idea that you can’t make a point on appeal of something you didn’t raise to the charge is on the trial judge. The idea that if you had the burden of proof, you have to submit the issue instead of objecting is to protect the trial judge.

It’s the presumption that you are going to submit your case, not the other side to do it. Think about this. In urban counties and pretty much all rural counties that I know, judges are requiring pre-trial submissions of charges, but they don’t want just your questions. They want to submit the other side’s questions as well. We put all kinds of disclaimers on it if we don’t think there’s evidence. We’re not asking you to submit this and all those kinds of things, but that is contrary to the Rules theory.

I had a judge in Dallas who took the position that we needed to give the pre-trial submission of the charges to the jury. During the trial, I had to point out to her that one of the two 70s rules says it’s submitted after the evidence closes. She said, “Why is that?” I said, “There might not be evidence of one or more of these things.” We have gotten away from those things, but the reason we got there to circle back to the original question is for the protection of trial judges. It’s logical but needless at this point. We tried to change it in the Supreme Court Advisory Committee. Trial judges don’t want it.

It makes it harder because you have to remember to object to this, do I submit to this, “How does it need to be phrased? Is there a problem if we do it this way?” It’s broad form when feasible, or whatever that means.

We haven’t gotten into broad form and then when feasible and done all that. There are lots of stories on cases about that. All of us know what the cases are, but eventually Justice Pope convinced the rest of the Supreme Court that broad form practice made the most sense because fewer cases would be reversed. Island Recreational was a rush to that judgment. Remember that in Island Recreational, the issue was whether the contract was fulfilled. The defensive issue was waived. The performance was waived. The charge doesn’t have the word waiver in it or anything that looks like a waiver.

The defense asked for it, but it was fully argued. The court says, “It’s in there somewhere. It’s in the plaintiff’s liability question somewhere.” In the heat to get to the result to bless raw form submission, they made the submission somewhat unfair. Island Recreational has been cited occasionally for some things, but that holding has not been cited in some years. Thank God. It’s one of those cases I look for. I’ll search Supreme Court defendants to see if they’re going to resurrect it.

It seems like the Supreme Court has gotten more forgiving on preservation than it has been. They want to take it on the merits rather than a technical point.

Let’s think about that for a second. That’s very true, Jody. The Texas Supreme Court is looking past waiver and error preservation in all cases because it can consider a broader range of cases that way. I’m not saying that’s wrong, but that’s certainly what they’re doing. When Dale Wainwright was on the court, he famously said at one COE event, “We don’t much care about waiver.”

He was very honest, but they’re now saying if you hint at it, it’s enough. Think of all the cases we have talked about mentioned in the summary judgment of the defensive theory. You disagree with one thing that replaces what happens in the charge conference. You look at each one of those cases and say, “I understand that,” but does it follow the rules? Absolutely not. You have to be worried about that, but they are more forgiving.

That whole trend started in that very famous Supreme Court case authored by our now Chief Justice Payne case, which is the irony of the name of that case. Their jury charges are full of pain.

The theory of Payne was if the judge can understand it, that’s all you need, which is wise. That makes great sense. The problem with that is sometimes you run into a particularly obtuse judge. What I do is I take a picture of the judge and put it in the brief. He says he couldn’t understand anything. That’s probably not appropriate, but on the other hand Payne was a step in the right direction.

We have retreated from Payne, but if appellate lawyers get a case in which there’s no error preservation, Payne is the first case we go to. In Payne, you find every case you need. Sometimes the Supreme Court follows and sometimes it doesn’t, but it’s a whole other ballgame in the Courts of Appeals. They’re more serious about error preservation.

It’s those that don’t have a discretionary docket.

They don’t have to take things. They don’t have to stretch to get anything. They apply those. That’s good. One of the frustrations of people who either went to Baylor or took time to read the rules and understand them is that people sometimes seem to get away with things that the rules don’t permit. That’s a shame. I hate that, but on the other hand Nathan Heck was right. If the judge understood what your objection was, that ought to be enough.

It goes back to the purpose of the rules that you talked about. It’s to protect the judge if you’ve told them everything.

That’s the way it should be, but we’re off on a tangent there. In the previous segment, we talked about the one time one of the members of the court infamously sat at an advanced appellate course. He doubted that there were twelve lawyers in Texas. It was the two 70 rules. Immediately afterward, he was at the Four Seasons. There were a number of us that met at the bar and tried to determine who those twelve people were. Each of us was convinced we were in the twelve, but we quickly became much more obsessed with the idea of who wasn’t in the twelve, which is human nature that says we are bad people.

There has been some effort to make it easier, the PJCs in particular. There was a lot of work that went into adding a provision within each of the volumes and the cheat sheet on error preservation that contains the basic rules. If it’s your burden of proof and it’s omitted, you’ve got to submit a question. You can’t just object. There are different variations on that, which I remember charting out in law school to try and understand what they are talking about, object versus request. It’s still not easy to understand.

In the heat of battle, you’re trying to think. Generally, judges are now giving lawyers time enough to look at the charge. You’ve had a pre-trial submission of the charge. I can go through those and mark where’s the burden. Is there a shifting burden? Employment cases are horrible. They’re shifting burdens. If you follow the Fifth Circuit forms, you wonder whether the instructions match the questions. That is something that seems horrible to me. The PJC committees and the oversight committee both do a remarkable job. That’s a thankless task, but the people who work hard on that are heroes.

When in doubt, object and submit.

A submission always is better than an objection, but sometimes pre-dictating all those things is difficult to do.

Have you ever handled a jury charge conference if you haven’t written one out by hand?

Everyone who’s had a significant practice like this knows what I do is I xerox photocopies of whatever you do old school. If I’m not taking a computer or having somebody take a computer that can operate it for me, it’s the heading of the cases. I can take scotch tape and scissors. I’ll tape it into a legal piece of paper, write the question, and submit it.

That’s the voice of experience right there.

That’s why I still carry quarters for the telephone too.

You can’t find anywhere to spend them.

I want to go back real quick to the issue. Should you prepare a complete charge? I’ve resisted that at some points because I don’t view it as my job to do the other side’s work for them, but from personal experience where it does come in handy to have gone through that exercise is those instances in which your trial judge doesn’t give you a lot of time to take a look at the charge of the court as well as what the plaintiff submits and what the defendant submits.

Sometimes what the court gives you doesn’t always look like one or the other or even both. I have found that it’s better for me to know all the nuances of the other side’s theories, the different variations, what may be submitted, and what instructions might need to be included. It helps me in that when I’m under the gun at that moment.

I don’t want to give the other side their charge. I sometimes resist that, especially in more complicated cases, but I always prepare their charge and keep it myself. I also break out for the instructions I’m going to submit because who has the burden of proof on instruction can become tricky. You have to assume you do. I was in one very good judge’s court in Houston. She looked at me and said, “If you want it, you must have had the burden on it.” You’re thinking, well under that theory. We went around on that, but you have to be careful.

I have a follow-up question that’s pretty general. Maybe there’s not a great way to answer it, but since I’ve got the opportunity to pick the great David Keltner’s brain about jury charges, I’m going to do it anyway. We generally talked about the PJCs and the value that they bring. It’s not quite painting by numbers, but in most cases it will take you pretty far down the road. What are your thoughts on when it’s appropriate to deviate from the PJC?

Having been on various PJC committees for years, I quite often deviate. I am getting less acceptance from judges as time goes on. They will tell you, “If it’s not in the PJC, I’m not going to submit it. Don’t even ask me.” If it’s important to preserve an error, I will submit it and say, “Judge, I know you didn’t want this. This is not PJC. It’s based loosely on 1.203 and all those things, but it’s not PJC. I’m going to submit them.”

First, two things are important. Submit the case that was tried. If it is based on specific facts, don’t submit the extraneous things in the PJC. PJC is, by nature, general. Let’s make it specific to the facts of the case so the jury is not tempted to go outside the record about what they think. That’s one. If the PJC doesn’t deal with the situation you have, that happens not infrequently. More of from the PJC is one structure to general submissions. Submit everything you have with Case Law that says, “This is the law.” That is the time to deviate.

Jury Charges: Submit the case that was tried if it is based on specific facts. Don’t submit extraneous things in the PJC because the PJC is, by nature, general. Make it specific to the facts of the case.

You have a retaliation claim in an employment law context. The retaliation is the filing of the lawsuit, but the plaintiff filed the first lawsuit. You’re protected in filing a second lawsuit as a counterclaim to the first, but there’s nothing in the Employment Law statutes or the Fifth Circuit charges that deals with that at all. The way to preserve it is to go in and say, “That’s not a legitimate cause of action for retaliation.”

You should take instructions regarding the counterclaim, but if not you’re instructed that you had a constitutional right to file a counterclaim and do these things. It’s agreeable unless it’s not reasonably based in law and fact. You will find the last part in some of the retaliation clauses and Supreme Court cases, but you won’t find the whole thing related to a counterclaim. That situation is when you depart from the PJC.

What you also said about submitting the case that was tried makes sense. If you’ve got a straight-up breach of contract case, don’t try it as a fraud case.

You don’t need every question that’s asked in a breach of contract. Did someone comply with X? If we know what they’re claiming the breach is, why don’t we limit it to that instead of the contract itself? That’s the thing I’m talking about because what may happen is some extraneous facts come in that deal with performance or the other guy is a bad guy. You will have a juror more likely than not come out and say, “He was a jerk on X. That has to be a breach of contract.”

You have to be careful with causes of action because, as we have seen, the Supreme Court has no problem saying, “You flat submitted the wrong cause of action. Too bad for you.”

We especially have had that in premises cases of negligence, but we have seen it in contract cases, too, when the wrong things are submitted. Red Deer is a classic example of that. Traditionally, when you don’t have production and paying quantities, it’s based on the last day when there was production in paying quantities, but the contract varied that. You have to be careful with those kinds of things because the Supreme Court is. God loves them for it.

I want to switch over and talk about the other thing I have seen you do more than any other lawyer I know, which is oral arguments. It’s something that you do better than any other lawyer. You’re not going to take credit for it, but you do. I want to talk about first how you prepare for oral arguments and then your thoughts and tips on giving the most effective oral arguments.

There are a lot of differences between trying lawsuits and doing appeals, but one of the things that great trial lawyers do is reduce everything to its lowest common denominator. They do it for the burden of persuasion. That applies to appeals. We ought to make the decision for the Court of Appeals as easy as we can make it and say, “We’re right because of X.” That’s important. That’s difficult to do. You generally have to write a very complex or complicated brief to be able to reduce it to its lowest common denominator.

David Gunn does a very good job at that. David comes by it naturally. I’ve got to structure myself into it. The second thing in oral argument is you need to think like your audience. They’re there to write an opinion that fits within the fabric of the law and is woven in with other cases, especially when you’re at the Supreme Court. If you are not dealing with that issue, you’re not helping the court do its job. It’s got to answer a question and be satisfied with why this fits within other Case Law or if it doesn’t create an exception. You’ve got to do that. That needs to be part of your simple explanation to the court.

Those are major things. The other thing I see a court being confused about at the end of oral arguments more often than I would suspect is wanting to know what you want. I don’t know how many times I’ve been in a courthouse, either in my arguments or other people’s arguments. At the end of it, one of the judges is saying, “I want to make sure what you want,” or the Texas Supreme Court is saying, “Would you be happy with a remand rather than a render because that’s what your argument is?”

The other thing is this. You’ve got to fully understand what the standard of review on appeal is for each one of your issues. It sounds easy, and it generally is, but you have to operate within those frameworks. That’s very important. My son, who’s in law school and is about to graduate, is going to clerk for the Court of Criminal Appeals. He asked me about one matter. I had over 200 hours preparing for one oral argument for fifteen minutes. The price for him was prohibitive, but what happened in that case was I got out, “May it please the court,” and questions.

You had to be able to respond with their prior decisions. Remember your audience. Let me give you examples of that. If you’re arguing to a three-person Court of Appeals, that’s a finite thing. You should learn everything you need to know about those people by reading prior opinions in similar cases, but generally book them and see what their practice was and all those kinds of things.

In the Supreme Court, we have had a change over a period of 5 years of 3 or 4 judges. That changed the dynamic of the court. Some people generally tend to vote with others. That has changed dramatically. The viewpoint of two of the new judges that brought a third along has changed to a more fundamentalist view of pretty much everything. I’m not critical at all about that. It’s just that you’ve got to know that it’s there. Knowing the audience is extremely important.

In one case, I had 20 questions in 15 minutes. There’s nothing wrong with that. First off, we want to encourage questions because if the court has any doubt about what it wants to do, you need to be able to explain why you think you’re right. If you don’t know what their concerns are, you can’t address them. I build in phrases right before for the pause to invite questions.

I want to know whether they agree or disagree with a major premise I’m going to make. If they disagree, my argument changes. If they agree, we continue down the line we’re going, but remember that one judge may ask you a question. If you answer favorably to what you think he or she wants, you may be losing another vote. You have to be careful with that.

If the court is unsure of one issue in their prior decisions, say that or demonstrate it. They don’t want to say that they’re not all in agreement. You might need to say, “Your Honor, in Barrow Shaver, the court was splintered on that issue. If you recall, Justice, you held why. You had another view. We think you don’t have to decide that matter here because, under either of your theories, this is the way you would interpret this phrase.”

Sometimes I see advocates globbing onto one question, thinking it is adversarial and trying to convince that one judge, and they’re losing the two votes over here they had to have. That’s terribly important. If you are in a court, and you’re criticizing prior opinions, be ready for the question, “Should we reverse our previous case?” Almost always, you want that answer to be, “It’s not necessary.” You can provide an exception but be ready for those matters.

Jury Charges: If you’re in a court and criticizing prior opinions, be ready for the question, “Should we reverse our previous case?” Because almost always, you want that answer to be “no.”

One of the things that you do particularly well is concessions.

You just made one.

It’s important to concede. I watched Mike Cantrell and Greg Coleman do this for a long period. Both of them had the ability to say to hypothetical questions, “If we were to decide this, you would lose.” Even in very hostile courts, I saw both Greg and Mike stick to that gun. First off, they know you’re being honest with them. Two, they think, “He’s got a way to get around this.” They’re likely to ask you that question next. If that’s right, how do you deal with this? It is exactly the question I wanted because I want to explain something.

Sometimes we forget that, especially at the Texas Supreme Court and certainly the Fifth Circuit as well, the judges are talking to each other. They’re not necessarily talking to you and answering questions. They won’t ask a question. They will say, “The law is certainly A, B, C, and D.” What do you say? Regardless of that, you can’t say that. You have to know enough to be able to say, “Justice, I understand your opinion on that. That may put that issue in some doubt. Is that what you were referring to?” If the answer is yes, say, “This is what I need to decide.”

One of the worst arguments I ever heard was from a lawyer who’s no longer living and whose name I won’t mention to protect the guilty. I’ve got a huge amount of questions from one judge. It was a very technical issue relating to firearms. It had nothing to do with the appeal. The lawyer said, “Justice, I know you’re not with me on this case. Would you mind if I answered another judge’s questions with another lawyer?” Be stoic. Have a stoic base when you’re sitting at the counsel table.

Justice Baker stopped an argument I was making, addressed the lawyer sitting at the other table, and said, “If you make one more grimace or roll your eyes, you’re not going to get your rebuttal.” That wasn’t the chief justice at the time, but at another time, I had the chief justice, and this is Greenhill, stop an oral argument so a lawyer could compose himself. He was getting very agitated and starting to yell and things like that. You never want to do that. You want the court to consider you as someone who is there to help them because they know you’re an advocate, but you truly are there to help them reach a decision, hopefully from your client’s viewpoint.

I’m going to interject and ask for another Keltner take on something. I don’t get the benefit of being down the hall from you all the time as Jody does. What is the Keltner view on visuals at oral arguments?

I don’t like them as much as most people like them. Some of our colleagues use charts in every matter. At the Texas Supreme Court, that’s difficult to do, given the layout of the courtroom. Pointing to a chart can be problematic. I don’t like to use them. If I’m going to do something, I’ll do a bench book. The bench book will have what I need in it. There are visceral reactions to bench books. Some of the judges believe that if we’re talking about statutes or contracts and you’ve got that, then it’s all over your brief. I don’t need to see it again. You’re going to highlight it as you did in your brief. Don’t show that to me again. You can’t get in evidence outside the record.

Generally, I don’t think they’re all that helpful. I have seen very good lawyers try to do PowerPoint presentations to the Court of Appeals. I’ve never seen it work. If one is going to do it, they have to be simple bullet point kinds of things. For example, if someone is saying there’s no evidence of something, I may take out bullet points that disprove that with record citations and hand it to them. He’s going to say yes. I’m going to say no, “Look at these and make your judgment.” I generally don’t want that, but sometimes everything goes out the window.

All of us have had bad times. I’ve made way too many oral arguments. Many bad things happen. I was in the Fifth Circuit once with an interesting panel. The chief judge happened at that time to be the chief judge of the circuit as well. The Fifth Circuit changes up at times periodically. During that period, they were announcing, like in the Texas Supreme Court, the next counsel. The marshall, who was a clerk staff, stands up and says, “This will be David Keltner for the appellants.” They were petitioners. We were appellants.

I stood up, walked to the podium, opened my notebook, and said, “May it please the court.” The chief judge looked up and said, “You’re not David Keltner.” I laughed. I was struggling for an answer. The best answer I could come up with is, “When I woke up, I didn’t feel like myself,” but I thought, “I’m not going to do that.” Fortunately for me, the judge sitting to her right said, “That’s David. That’s him.” Both Texas judges said, “That’s David Keltner.” They start laughing. The senior judge, who is not the current chief judge, gets angry. It did not go well for the rest of the time, but I’ve had disrespectful comments, good comments, and bad ones.

Once, I was arguing out of state. A judge said, “We don’t much care what rich Texas lawyers think about this.” My response was, “You’ve got one of those right.” Everybody laughed. That didn’t go very well with him either. Things can be testy. Looking at the United States Supreme Court, you can see this. There are a lot of judges that ask a number of questions in cases they’re specifically interested in, but generally they’re not advocates. They may be talking to other judges on the court. They may be talking about posterity. Newer judges feel the need to get on one side and be an advocate.

In knowing your audience, you have to know that and be prepared for it. You’re defending an opinion that is yet to be written. It’s good to know that they’re hostile. I argued out of state in which that was very much the case. I was able to finally get that judge to laugh about the matter. The way I did it was by saying, “Judge, you write them, and I read them. What you think about is more important than I do, but the case you’re holding says A, B, C, and D.” I looked at her, and she started laughing. Another judge jumps in and says, “That’s exactly what we meant.”

You get your point across that way. Once, I had to argue a case in the Supreme Court. It was whether one of those claw machines that the kids use and drop down to get a little toy and everything was an illegal lottery. There is a provision in the Tax Code called the Fuzzy Animal Exception. I looked at the Supreme Court and said, “I never thought I would be here talking about fuzzy animals, but here we are.” Humor is okay, but more often you have to be scarce with it and probably not do it much.

Here’s the last thing I’m going to say. There are a bunch of finites in appellate work, especially in oral argument. The record is the record, but it’s finite. It is possible for you to know it better than anybody else, even the people who had tried the case. The Case Law is finite. You are capable of knowing more about Case Law than anybody else, including the people who wrote the cases. You may be in a better position to meld them all together than the judges who wrote them.

With those finites, it’s impossible for you if you work hard not to know more than anybody else in the universe about your case when it is argued. When the court gets the idea that you will concede what you need to but that you know the ins and outs and it’s okay for the case to turn out your way, you succeed. That’s my theory about oral arguments.

I like that a lot. One of the things that draw some people to appellate work is the finites. You don’t have all the extraneous discovery battles, lots of motion practice, and all the things that go into the product that the jury sees. Once the jury renders its verdict and the judgment gets signed, everything is locked in. Your universe is limited, which is both the beauty and the horrible part of appellate work at the same time.

Sometimes you think there’s not enough. The most nervous I’ve ever been is when I know there’s something I haven’t quite mastered yet. I’m thinking, “It’s not going to be important to the court. I’m going to get a question on this.” I’m nervous before every hearing, whether it be a special exception or making an oral argument, but hopefully my preparation has been such that when I open my mouth all of that nervousness and anxiety goes away. I hope most of the time that’s true, but not all the time.

David, you’ve been so generous with your time. We managed to turn it into not 1 but 2 episodes. We’re so grateful to you for spending time with us. Jody and I have been talking a lot over the last few years. We would like to have you on the show. We might have to get you back. I don’t think we have tapped the full.

There’s more.

It’s our tradition that before we conclude with a guest, we give them an opportunity to offer up a quick tip or a war story. Was there something that you would like to leave our conversation with that would be interesting?

Fifth Circuit was one. I was involved in Marshall, Texas, in a case that had taken four months to trial. I was there solely for preservation purposes. We got an unfortunate verdict. That ended up in an unfortunate judgment. I filed a motion for a new trial, but I did not ask for it to be set. The judge set it. I called the clerk and said, “There’s nothing in this that’s not mentioned in the JNOV except for preservation issues. I’m happy to appear.” She says, “Judge wants to have a hearing.”

I drove out to Marshall. I cannot tell you how many lawyers there were. There was every good lawyer in Marshall. There are a lot of them. We had Sam Baxter, Doyle Curry, Franklin Jones, and Carl Roth on the other side. On our side, we had someone who’s now with Gibson Dunn and then a lawyer from West Texas. I can’t figure out why he was there. And a Kansas City lawyer. He has now become a famous jury consultant that has gone on to other things.

I stand up to make my argument and say, “Judge, you’ve ruled on all these before. I’m happy to go over them, but if you have any questions feel free to answer them.” She said, “I want you to stand right there. I’m going to invite the district attorney in.” That’s never a good story. The district attorney comes in with one other guy. They’re carrying huge amounts of things. I’m thinking, “What is this?” It turns out there are photographs of the jurors at their homes and their businesses and photographs of the judge, some of which are inside her house.

They were taken by an investigator for our side who evidently was convinced that something amiss was going on, but they had followed jurors and the judge. They had gotten inside the judge’s house when the judge was there. The story was that they put this guy on and raised his hands to testify as he was going to a county attorney’s association meeting they take so you will know they take their investigators with them for these conventions. There is some drinking going on and the like.

Our guy, who I never knew existed, never saw him as far as I know in those four months. He shows up and says he has convinced the judge is on the take. These guys know it too. He’s looking for information. He hadn’t developed the film, so he takes them to a Fotomat store. The Fotomat attendant happens to be a friend of the judge in their Sunday school class. He makes two copies, one for the judge and one for our guy.

By the time I looked out, one of the lawyers in the jury consultant had run out of the courtroom back and forth. The judge asked me, “Do you have an explanation for this?” That was my worst afternoon as a lawyer. My explanation was, “Judge, you deserve one. I don’t have it.” She said, “If you could see the look on your face, you would know that I know you had no idea about any of this.” It was an exciting day in the practice of law.

That qualifies as a war story.

It was a bad day.

We appreciate it. Until the next time we have you back for another topic, we appreciate it.

It’s my pleasure.

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About David Keltner

Formerly a Justice on the Texas Court of Appeals, David Keltner has been lead counsel in over 300 appellate decisions. His legal writings have been cited, with approval, by Texas courts.

Mr. Keltner is recognized for his appellate accomplishments. He was honored by Chambers USA as a Star Individual in 2021 and 2022, and has received Band 1 ranking every year since 2007.  Texas Lawyer recognized him as the Go-To Appellate Lawyer in Texas, and he has been chosen as one of the Top 10 Lawyers in Texas, by Thompson Reuters, for the last sixteen years, ranking No. 1 in 2009-2011 and 2021-2022. The Texas Bar Foundation honored him with the inaugural Gregory S. Coleman Outstanding Appellate Lawyer Award. In addition, he was named Best Lawyers® Appellate Lawyer of the Year for Dallas/Fort Worth in 2016 and 2018.

In 2018, Mr. Keltner received Tarrant County Bar Association’s prestigious Blackstone Award, presented to a lawyer who has demonstrated excellence and courage in the practice of law. He is also the recipient of the Chief Justice Jack Pope Professionalism Award from the Texas Center for Legal Ethics and the Jim D. Bowmer Professionalism Award from the College of the State Bar of Texas. In addition, he is recognized on the national stage as a Fellow of the American Academy of Appellate Lawyers, one of only 320 in the country.

Mr. Keltner served as Chair of the Board of Directors of the State Bar of Texas. He was also Chair of the Litigation Section and Chair of the College of the State Bar of Texas. Additionally, he served as Chair of the Fellows of the Texas Bar Foundation.

The Texas Supreme Court appointed Mr. Keltner to a number of its committees. He served on the Texas Supreme Court Advisory Committee from 1993 to 2000 and was appointed Chair of the Texas Supreme Court Discovery Task Force. He was also a member of the Texas Supreme Court Advisory Committee for Professionalism that drafted the Texas Lawyer’s Creed.