Winning Cases on Leg ...

Winning Cases on Legal Issues Before and During Trial

April 19, 2024 | by D. Todd Smith

Listen to the podcast here:

As civil trials become more expensive and less frequent, proactive attorneys should look for ways to streamline or end their cases before trial. Luckily, both Texas statutes and court rules provide some helpful tools. In this episode Todd Smith and Jody Sanders discuss ways parties can address legal issues before, during, and after trial that can simplify or dispose of a case. This episode offers practitioners effective ways to save their clients time, money, and the stress and uncertainty litigation creates.

You’re going to get the unique pleasure of listening to two appellate nerds sit around and pontificate about some finer points of appellate legal issues. Jody and I are going to talk about the topic that I  describe as winning your case on legal issues before trial. This episode is geared toward trial lawyers, but we’d love to hear from our appellate lawyer brothers and sisters on these issues too.

The idea came to me just as a thought for workshopping a potential CLE paper on this issue because, and I know some of these topics, all of them have been covered in depth in other papers before. Just to recenter these procedural devices in the context of ways that in a trial court, an appellate lawyer can help a trial team and can present legal issues in a way that could dispose of all or part of a case, either short of trial or shortly after trial and before an appeal.

With that, I guess, Jody, we identified several different devices that we can talk about. I think I’ll just run through the list and just name them off and then we’ll just launch into the first one and see where the conversation takes us. We’ve got, for example, Texas Rules of Civil Procedure 91A motions. We have a plea to the jurisdiction. We have motions to dismiss under the Texas Citizens Participation Act. We have motions for summary judgment, both traditional and no-evidence motions.

I threw in here in this phase of the timeline, permissive appeals because that seems to go along in time with more or less summary judgment motions. Then there’s one of my favorite devices, I would just call it a motion for disposition on legal issues under Texas Rule of Civil Procedure 166 G which we’ll get into.

Then I think you can also advocate for legal issues in the motion and limiting stage of a trial. And also of course, during the jury charge stage, then during trial or post-trial, you have the traditional motion for directed verdict and motions for JNOV. In the end, around the time that there is potentially going to be or has been recently a judgment rendered by the trial court. Let’s just launch into rule 91A, Jody. I know you’re super familiar with this. Why don’t you start off the discussion and I’ll chime in.

Sure. Unlike federal court, Texas has never had a 12b6 equivalent, a pretrial dismissal based on the pleadings idea. They had special exceptions, which are something you can use, but they’re a little bit more difficult and cumbersome than a 12b6 motion. A few years ago, the court created, based on some statutes, rule 91a, which is the pre-trial dismissal equivalent.

Now it’s not quite the same as a 12b6. You have to explain why the cause of action that you’re challenging has no basis in law, fact, or both. Texas courts seem to apply a little bit higher standard than federal courts do in a 12b6. That’s what it is. It’s not exactly a perfect correlation between 12b6 practice, but it’s the closest thing that we have right now.

It has some deadlines associated with it. We’re not going to get into what those are. That’s a little bit too deep for what we’re doing here today, but just be aware that the rule does have some deadlines that are keyed from the filing of the particular cause of action that you want to challenge. Just be aware of that. Be aware that depending on whether the other side non-suits or amends their pleadings, that impacts it.

Ultimately, if you file a Rule 91A motion, there’s a timeline where you have to have a hearing on the motion. The court can but doesn’t have to have a hearing, but it can’t look at evidence. It is based solely on the pleadings, which is where it gets to look the most like a 12b6. That’s why it’s a little bit more difficult in Texas because we have a more lenient pleading standard here than you do in federal court.

To show that something has no basis in fact is a little bit more difficult with our fairly lenient pleading standard, particularly when you can’t use evidence. If you look at the way that courts have interpreted these, I think it’s a little bit harder to get a 91A dismissal. Now no basis in law, on the other hand, which is the point that we’re talking about here today. Maybe a little bit easier. For example, if it’s a cause of action that doesn’t exist in Texas, or if on the face of the complaint, they have shown, for example, that they’ve pleaded themselves out of some cause of action or pleaded themselves into some exception.

I’m thinking about the statute of limitations, for example. If they don’t plead the discovery rule, but they’ve pleaded facts that show they are outside the statute, you may have a 91a basis there. It is interesting and I don’t think the courts are completely clear on what constitutes fact versus law for purposes of 91a because it does blend, but just be aware that that’s a thing. Then you can get fees for a 91a dismissal, which is nice. I think it can go either way. Is that right?

I think that’s right. The prevailing party, I believe, they’re discretionary in this instance. The court is one of those. The court may award. I believe the rule does say that the court may award the prevailing party its attorney’s fees for bringing the motion or I guess if you’re the prevailing party and the motion is denied, it would work the same way.

Now there’s been a lot of talk about fee shifting in our state in the last few years and a lot of buzz whenever the legislature’s in session about trying to make Texas more of a loser pays system. This arguably makes progress towards that but I think the one thing to keep in mind in advising clients on this is, yes, it’s a very early stage motion of dismiss. Yes, you might be able to recover your fees if you prevail, but if you lose, you’re equal, it’s the other edge of the sword.

There’s some argument that there’s some possibility that you might expose your client to having to pay the other side’s fees. The good news, and again, it’s a double-edged sword. If you file this motion and you prevail on it early, you might get fees, but your fees ought to be rather minimal because you, in theory, wouldn’t have incurred a lot of fees at this stage of the case.

The flip side is your exposure, if you file it and lose, ought to be relatively low depending on the other side’s fees too. I think just as a practical matter in advising the client, “Look, we see this issue. We think it’s a good 91a issue.” They’ve pleaded themselves out of the case or they’re asserting a cause of action that doesn’t exist in Texas or if maybe there’s a split of authority in the Courts of Appeals and your jurisdiction hasn’t decided the issue, that could potentially be a 91A issue, but it’s probably better when you’ve got settled law.

When it’s squishy like that, then you probably are at a little more risk of being exposed to the other side’s attorney’s fees. The upside is, if you win, if you’re the movement then you wind up with a final judgment. Unless it applies to only part of the lawsuit, the causes of action that are asserted. You can see just logically how this could benefit primarily a defendant.

It’s not going to come up on the plaintiff’s side but you can see how this device is, when it’s used properly and applied in the court goes with it can have the effect that it’s designed to have, which is to weed out so-called frivolous claims. One thing you did mention, Jody, is special exceptions, and I left that off the list earlier. How would you say that other than the time sensitivity and the fee issues, what would be the advantage of a 91a motion over pursuing special exceptions in the trial court because that can ultimately more or less lead to the same place?

I think it can, but it’s a longer road. The way that I typically see special exceptions used is you left out something, you need to tell us more, there’s something defective with your pleading, and almost every single time, I think the case law backs this up, the court gives them a chance to amend. This is fair, but with a 91A motion you can amend, it changes it, but it’s not, it just has a little bit more teeth to it than special exceptions.

A lot of times I’ve seen judges who just don’t grant special exceptions because they just feel like you can figure this out in discovery, which is their approach but with a 91a, you have certain deadlines that are set, things that have to be done. Just anecdotally, when this came out, I thought we would see it a lot more.

I just haven’t seen it as often as I expected and I think it may be the fee thing that dissuades people a little bit. It’s a relatively high standard for what it is based on the way the courts have interpreted it and so I think that coupled with the possibility of having to pay the other side’s fees if you don’t prevail, maybe that’s why people aren’t doing it as much. I don’t know.

I have heard in discussions with other lawyers that they’re starting to see more of these granted. I think the reason could be that the fee provision, I think, was mandatory at first. It’s been changed along with other similar procedural devices.

It’s been changed to allow the trial court discretion on whether to award fees. That being the case for one, I think it does color the decision whether to file the motion in the first instance. I think it also colors the court’s decision whether to grant or not because if you’re if you have no discretion, the legislature has taken away your discretion, whether to award fees or not.

It’s probably easier from a trial court’s perspective to just say, “Nah, move on to the next phase of the case. I’m just going to deny it.” Here a court can look at this and say, “I think you have a good motion, but I think it’s a close call and I’m not going to award any attorney’s fees.” That may be the dynamic that trial judges have in their thinking that they’re going through.

If anecdotally it is accurate that more 91a motions are being granted, I’d love to see stats from OCA for 2023 or 2024 following the change in the rule to see if that’s backed up because I think if it is, probably would put 91a motions in an even higher position in terms of something that you ought to be considered in the right case. It has to be the right case. You can’t just file it saying take Micah’s and Vinnie’s approach and everything that guy says is BS. That may be true, but is that going to get you relief under 91a?

The answer is probably not. It has to be based on the plaintiff’s pleading for the most part. Did they plead themselves out of or into something that gets rid of their claim?

Yes, and If you attach anything to your motion, it’s going to basically be denied. Not treated as a 91a motion and the best argument in response to something like that is to say, “This is something that might be appropriate for summary judgment after discovery.” Not a 91a motion before we ever really get out of the gate.

Pre-Trial Strategies: If you attach anything to your 91A motion, it will be denied.

Be mindful of that. I think that one of the best tips to come out of this discussion is to avoid the temptation to attach a bunch of stuff to your 91a motion because you’re confined to the four corners of the plaintiff’s pleading and whatever attachments that they have. I think there is a very narrow exception to that.

Yes, I think there is too.

I can’t remember the scope of the exception. As we said at the beginning, this is not meant to be a detailed explanation of all these devices. No CLE credit for this one but just be aware, be mindful. Again, just consider this as an arrow in your quiver.

By the way, the rule does say it doesn’t affect a motion to transfer venue and it doesn’t affect any personal jurisdiction arguments. You’re not waiving anything by filing a motion to dismiss. Just FYI if you’re concerned about that it does require that you file it pretty early in the lawsuit.

You just reminded me this is why we’re doing this as a workshopping and not as a CLE presentation. You reminded me that any complete discussion of these topics probably ought to include a special appearance. I’ve got two more that I’ve added to the list just based on the last 10 minutes of conversation. This conversation is serving its purpose. We can talk a little about special appearances, but that’s a really specific device based on jurisdictional arguments.

Yes, that’s not so much a legal issue. I mean, it is, but it’s also really not. Be aware that that’s obviously out there, and there are some time limitations on it in due order of pleading-type limitations to it. Just know that that’s a thing.

That’s the trap is the due order of pleading issues for special appearances. I think you’re right that it does fall into a different category than a lot of these other devices that we’re talking about because it’s pretty common that you would have some limited amount of discovery on jurisdiction to support a special appearance.

It isn’t quite the same. I mean, yes, it can, it’s a device, not all that unlike summary judgment in some ways that can be used to dispose of a lawsuit if you’ve got a non-resident defendant. Be mindful of it, but we’re going to not talk about that in any great detail here. I do want to just mention a little and talk about a little bit about jurisdiction.

You think of this in the context of governmental defendants more often than not. I think that’s largely true and there is an entire body of law that addresses that situation where you’ve got a governmental defendant who says, “We’re immune from suit.” We’ve got, there’s no exception. There’s no waiver of immunity, which has to happen to sue a governmental agency.

That is the best example of this device as a whole topic in and of itself. There’s a ton of case law on it. You have to be a little careful about getting bogged down in the weeds on that. If you’ve got a situation where the entity or person that you sued is not a government defendant, but you still have jurisdictional issues like, let’s say, subject matter jurisdiction, personal jurisdiction.

That’s where the special appearance comes into play. When I say plea of the jurisdiction, I’m literally thinking something apart from, whether there’s personal jurisdiction in play. If for example, you’ve got a monetary limit to the jurisdiction of the court that the plaintiff has sued in, and yet they’ve alleged damages far exceeding the monetary limit. I think a potential situation in which a plea to the jurisdiction could be brought.

I’ll jump in with a quick practice tip here. JP court is a place where there’s a pretty standard jurisdictional limit but if you’re in statutory county courts in Texas, they’re all different. There’s a standard civil jurisdiction, but some of them have unlimited, and some of them have concurrent. Whichever county you’re in, if you’re in a county court at law, check the statute because they’re not all one size fits all there.

Our state is unique in that way. With 254 counties, it’s like our constitution. You can’t expect to know from memory unless you practice in a jurisdiction all the time, exactly the way that the court systems are set up and work. That’s a really good example of that but that’s all I have to offer on pleaded jurisdiction, just something to keep in mind if you think you have a jurisdictional argument. It operates a lot like some of the other procedural devices that we’re covering just with a very specific focus and you were going to add something, Jody?

One thing I’ll throw out there is standing is a component of subject matter jurisdiction. In the last few years, the Texas Supreme Court has clarified what they mean by standing in the state of Texas. A lot of people understandably, because a lot of the cases, I think, confuse the issue of standing and capacity. Standing is potentially a basis for a plea to the jurisdiction. Capacity is not.

Unless you’ve looked at the more recent case law on that in the last five or six years, you may miss the analysis. Just take a few minutes, and read the Pike case from the Texas Supreme Court in particular. If you’re challenging the subject matter jurisdiction of a court, just know that Texas district courts, in general, have very broad subject matter jurisdiction. You do have to be able to explain why it’s lacking.

For example, does some other court have exclusive jurisdiction? Does some agency have exclusive jurisdiction? Is it something like that is a claim preempted by some federal law or something along those lines? It’s got to be a pure subject matter jurisdiction and that can include standing but the goalposts for where standing is now are a little bit different than where they were a few years ago.

Great point. I’m glad you mentioned that. Do you want to kick us off on everyone’s favorite statute or formerly favorite statute? The TCPA?

Sure. Anyone who’s done appeals or trial work in Texas in the last 10 years probably loves or hates this statute, depending on your experience with it, or maybe both. The Texas Citizens Participation Act, which is Chapter 27 of the Civil Practice and Remedies Code, is Texas’s anti-SLAP statute, which was passed, I think, with the good intention of trying to keep people from using lawsuits to strategically prevent public participation.

The idea was essentially if some big company sues somebody who posts a negative website review to try and basically use the court system to silence them, then this would give them a remedy. The problem was the legislature wrote it very broadly and the courts took them at their word and said, “This applies a whole lot of places you probably didn’t intend.”

It’s now been two or three legislative sessions. They’ve amended it and they finally have narrowed the scope to be a little bit more in line with what I think the original purpose was. I am not seeing these as often as I did for probably, six or seven years. Every case you had to worry about because it was just broadly written and read in such a way in courts that interpreted it in such a way that it could apply in a whole lot of scenarios that don’t seem like an anti-SLAP issue, but it did.

I’d consider this if you do have a case where the claims implicate the right to free speech, the right to association, and the right to petition, which is now more in line with when you think about those constitutional rights, what they look like, a matter of public concern. Something related to your First Amendment rights.

That’s the case where this is appropriate and you file this motion to dismiss based on, again, a tight timeline like Rule 91a. It stays the case, it stays discovery immediately. It’s a powerful tool and then it gives you the chance to invoke the court and get rid of their claims, some are on basically you have to show whatever their claims are, fall within the scope of the statute, and relate to your rights that I described.

If you do that, that shifts the burden on the other side to come back with clear and specific evidence, supporting each of their causes of action that have been challenged. For the longest time, the biggest litigation was over the scope. Then, it’s shifted now more to what is clear and specific evidence that the legislature has confined those definitions a little bit more.

Just know that that’s out there and it’s incredibly powerful because it does stay discovery and the trial court has very limited discretion to allow it. That is nice if you’re faced with this type of thing. If you prevail the movement fees are mandatory. That’s another powerful thing. You can get discretionary sanctions and the non-prevailing party can get sanctions slash fees in very limited circumstances and the trial court has to make some very specific findings.

If it’s denied, you get an immediate interlocutory appeal, which is still going on while everything is stayed in the trial court. What I was seeing in these cases is people would file an anti-slap motion that probably shouldn’t have been filed. The case would then be stayed for a year and a half or two years while it wound its way up to the appellate courts. Now with the legislature clamping down the definitions, I don’t see that nearly as much except in cases that are much closer for questions, but it still is out there.

Yes, there’s the potential, you could even describe it as a lot of mischief and using this tool. It was overused as you point out for a long time. My observation is the same as yours. I’m not seeing as many of them. If you get in, say a defamation case, it’s automatic in a case like that, just because this is exactly the type of thing it was supposed to deal with and intended to communicate with.

One thing I’ll mention is that this is a device that can be employed for counterclaims. If you’re a plaintiff who has filed a lawsuit and the defendant brings a counterclaim against you and that counterclaim invokes the protected classes of communications, it’s something that plaintiffs have available to them to use just the same as if they were the defendant dealing with those same claims.

Now there are the practical considerations of, do I want to do this and stay my lawsuit that I’m trying to prosecute. There are potentially good reasons to not do that. At the same time, if you do have a qualifying claim, it doesn’t have to be frivolous necessarily, that you think you would like to get rid of long before you get to a jury. 

This is what we’re talking about here today, then I think a plaintiff could well consider using the tool that the legislature’s made available just for that purpose. You would suffer some delay, but these are supposed to be accelerated. There’s an accelerated process for considering the motion, but the interlocutory appeal that’s created as a result of any denial is also accelerated.

I don’t have a great feel for what acceleration means in the appellate world anymore. It doesn’t seem like it means very much because I don’t think that they’re given the priority that they’re supposed to be. It depends on the court you’re in but in theory, it should be something that doesn’t cause a case to languish for years and years by virtue of just having filed one of these motions.

The problem that our appellate courts are stuck with is there are so many interlocutory appeals now, all of which are accelerated. It goes on the pile of accelerated appeals, which is already a huge pile. Then there are criminal cases that get priority. It just, unfortunately, gets shoved in with everything else.

100%, that’s an issue for the Office of Court Administration to track and report to the Supreme Court. It would be interesting to see what the timelines for disposition of accelerated appeals were compared to appeals from final judgments or other appeals that are not accelerated by statute or rule.

Of course, the legislature to consider when they’re determining legislative or judicial budgets to make sure they have the resources they need to decide the cases.

100%. That would take us then to motions for summary judgment, in which we don’t have to lecture trial lawyers much on what this device is. They generally know what it is and how to use it. It’s just something that when I first started practicing many years ago, it was almost a useless exercise to file a motion for summary judgment because trial courts, again, depending on the jurisdiction, but they were pretty rarely granted.

We see now if you’ve got a clean legal issue that ought to be dispositive of your case. That maybe lends itself to the traditional motion, which of course requires the movement to submit evidence in support of the most visionary judgment in immiscible form, which is part of the tricky part of MSJs.

If you’ve got that clean issue, I think that it is picked up with courts being more willing to grant them. The trial courts understand that we’re in a backlog of cases and you’ve got procedural devices available that if you meet your burden as a movement and the other side can’t. Once the burden shifts to the non-movement when the conclusive proof has been given on the reason why the motion ought to be granted.

Pre-Trial Strategies: Trial courts understand that we’re in a backlog of cases.

I think courts are more inclined these days to actually grant those and then of course with the no-evidence motions, I think those have a particularly very specific use. When you’ve been through discovery and the whole thing with those is you’ve got to bring them after there’s been an adequate time for discovery with no evidence motions.

Suppose you’ve gone through discovery and you don’t see anything that your opponent has been able to produce either in response to a written discovery or in depositions to meet certain elements of their claims or defenses. In that case, I should point out that this is another one that’s quite beneficial to raise in response to defenses that the other side has brought up if you’re on the plaintiff’s side.

Then it’s fair and reasonable to use this device to try to tee those issues up in the trial court and make them show you what their evidence is. Every time you file one of these, you get the response that says, “The plaintiff or defendant on an affirmative defense is not obligated to marshal its proof.” Almost every time you’ll see that in response, but at the end of the day, they’ve got to present in response to a no-evidence motion, evidence that’s sufficient to raise a fact issue or more than a scintilla of evidence on every element of their claim, at least the ones that are challenged in a motion.

If you’ve got hinky damages or causation, it’s probably not so hard. You do see occasionally duty issues that come up here, but I think duty issues can also be appropriately raised in a traditional motion. It’s not necessary either. You see so often either combined traditional no evidence or separate motions filed in the same case. I like to keep them separate because I don’t like there to be any bleedover when the court is considering who has what burden and so forth.

You can argue both of them together in the right case. To me, that the no-evidence motion is right up there with a 91a motion potentially is something that you ought to consider. If you’re just looking at your opponent’s case and you’re just not seeing how they’re going to get there in terms of proving their case to the jury.

This also is a potentially useful device, even in a case where maybe you haven’t taken very much discovery to force the other side to tell you what they’re going to say to the jury because if they don’t, this is their time to do it. If they don’t, a trial judge who looks at it closely is applying the law and recognizes that this is their time, they’ve got to bring forth more than a scintilla of evidence on the challenged elements.

If they can’t do it after being put to this standard, then how are they ever going to do it in front of a jury? No evidence motions can be an extremely useful and effective tool to try and dispose of a case. It is keeping with our focus. It is a legal issue. Do they have the amount of evidence necessary to support even sending the case to a jury on the theory that you’ve challenged?

Yep, I agree with all of that. The only thing I’ll add is to consider objecting to the other side’s summary judgment evidence. If you do, make sure you get rulings. Preferably in a written order that spells out what specifically the court is granting or denying. A lot of times I use one with a table. Exhibit one, grant denied. Exhibit two, grant denied. Paragraph X of this affidavit, grant denied. That way you’ve got a clear record on appeal either way.

I actually had one recently where the trial judge offered to bring in the court reporter. Often, they won’t even bring in the court reporter for an MSJ because it’s a non-evidentiary hearing. I had a trial judge offer that to me recently. I thought that was nice, but I’m like you. I want that written order because it can cause a lot of confusion on appeal as to what objections if any were ruled on or granted or overruled.

The law is not terribly forgiving in assuming what the trial judge may have been thinking. That is something that I actually see trial lawyers miss very regularly. It’s great to have your proposed order granting summary judgment or denying summary judgment. If you’ve raised objections to the other side’s evidence, it is 100% critical to get rulings on those objections, even if you have to pester the judge.

You don’t want that to be an issue on appeal and have the court of appeals having all the time in the world to look at the record and analyze it and analyze the objections and the merits of them to say, “That error wasn’t preserved.” This is the worst-case scenario or the court could have done this, and it turns out opposite the way that you want it to do.

While we’re on that point, I think there’s an art to crafting a draft summary judgment. If you’ve got multiple grounds, the best way to secure affirmance on appeal of a summary judgment order is to have a multiple ground motion in which the trial judge doesn’t specify grounds for ruling on the motion.

Unless, the trial judge just says, this is the reason why I’m granting this. If that’s what happens, you have to go with it but if you’re the movement with multiple grounds, you don’t want the judge to specify grounds because what that does for you on appeal is the other side has to challenge every ground, even the ones that the court maybe didn’t rule on.

If they don’t do that, that’s basically automatic affirmance. Just a little strategic issue there to consider as well on MSJs. It’s one thing to present a good argument on MSJs, but do not overlook objections and get rulings on the objections, because that can short-circuit the benefit of the whole procedure if you fail to do that.

I think that’s right. Like issues on an appellate brief, figure out what is your best summary judgment or no evidence grounds. I think trial judges so often see somebody move on every cause of action, every element, every claim. If you have legitimate grounds, that’s fine but if you don’t think there’s much chance, pick the ones that you think are good.

I again, 100% agree with this and I think honestly, the same is true both for traditional and no-evidence motions. If you know the other side has evidence of damages, don’t include that. Don’t challenge it. The rule requires you to list the elements that you’re challenging. In some cases, there are going to be situations where you want to challenge all the elements but if there’s a clear duty, if the law recognizes a duty, don’t challenge it.

If your real issue is they can’t prove causation, then focus on that and develop your argument. Now, again, no evidence motions are some of the easiest motions to draft, but when you’re looking at a reply or when you’re looking at your argument that you’re going to make at the hearing, then flesh out the reasons and cite cases to show why in my previous example, why they don’t have evidence of causation.

Causation is one of the trickier issues. It is certainly in personal injury and almost any other area. That may be the one. It’s easiest and hardest at the same time to challenge. That’s great advice to focus your argument, focus your issues so that you’re not just throwing stuff up against the wall to see what sticks.

I think we talked on the podcast not too terribly long ago about the changes in the permissive appeal process. We can chat about it just a little bit here. I think the Supreme Court has recently through an edict from the legislature, said that now courts of appeals have to explain the reasons why if they’re going to deny or refuse to accept a petition for permissive or application for permissive appeal, they have to explain themselves.

This is something that comes up. Permissive appeal does hone in on legal issues in ways that I think lend themselves to appellate lawyers being involved because, for one, it’s a legal issue that’s supposed to be substantially likely to result in termination of the litigation. The language is to that effect. It definitely plays into the discussion that we’re having.

It’s just a little different device that’s not, you’re not winning it in the trial court per se, but it’s a device that you’ve got to raise in the trial court. It’s something that’s a little bit specific. Atrial lawyer, if you don’t have experience with this and you’ve got someone you can consult on the appellate side to help you frame your issue, that would be beneficial.

It’s something that you’ve got to convince, not only the trial judge, but you’ve got to get the court of appeals to say, “You’re right, this is an important issue that is going to stand a substantial chance of resolving the case.” In that sense, it does fit right along with the others. All of these involve substantial written advocacy, which is something that appellate lawyers are trained to do and in theory, excel at. We’ll just mention it here, unless Jody, you have some specific thoughts to add to that.

I think that that’s right. A couple of things, I mean, it really can’t have fact issues. It pretty much has to be a legal question on agreed or undisputed facts. A couple of other important places, number one, you have to get permission in a written order from the trial court and the trial court has to actually both identify the controlling legal question and rule on it.

It’s not enough that the court says, “Here’s an interesting legal question, court of Appeals figure it out.” The court has to explain, here’s the way I go on it, A or B. I think that is important just to keep in mind because a lot of courts of appeals are not super interested in these permissive appeals if they can help it because it’s just more work for them outside the normal course.

You’ve got to check your jurisdictional boxes and make sure you get those rulings. Same thing for materially advanced, explain why it materially advances the ultimate termination of litigation. Not a super high burden, but just make sure all of those things are in the order that you give to the court. By the way, the court can amend it.

For example, if you get an order denying a summary judgment on what you think is a controlling legal question, file a motion for permissive appeal and ask the court to enter an amended order that contains all the findings. Once it goes up to the Court of Appeals, it has to decide on a separate petition, whether or not to take it, and then if it takes it, it starts over like a normal appeal. That’s all I’ll add.

There is an expanded review now in the Supreme Court on these permissive appeals. In my opinion, this is a good thing because it has the potential to resolve what could be otherwise extremely expensive litigation much earlier in the process. It requires a shift in thinking though, because rather than just charge ahead through trial and get whatever ruling the trial court gives you and then try the case and then take it up on appeal, you potentially could avoid a lot of that expense, at least from the defense side to get to the same outcome.

If you’ve got to spend two weeks or any substantial amount of time trying a case before you get a final judgment that could be appealed. You could be talking about hundreds of thousands of dollars of savings. If you were ultimately successful in a permissive appeal, raising the same issue rather than taking the case to trial.

It definitely requires a mindset shift on the part of the trial lawyer, “We’re going to just go fight this out and see how it turns out. Maybe we win, maybe we lose.” If you lose and you have to appeal and the interface trying to get the law to go your way, that’s a little riskier proposition. Not only have you spent all the money it takes to defend the case and so forth, take it to trial. Then from the defense side, at least, you’re potentially on the hook for a judgment that then raises all kinds of other issues that you would have to deal with. I really do hope.

I haven’t seen any stats on this. I haven’t looked at it again recently. I looked at it in some detail months ago but this is another one that I’m going to be following with interest and hoping that we get some good statistics from OCA to let us know that these are being used. The Supreme Court has basically told the courts of appeals in no uncertain terms, that if these are meritorious, you have to take them. If you don’t take them, and we think they’re meritorious, we’re going to tell you to take them.

Now they have the power and I’m interested to see how often that gets used because before it was a, “Shoot your shot.” If the court of appeals doesn’t take it, “It is what it is.” Now there’s a mechanism for the Supreme Court to look at it and say, “No, you do have to take this.” We’ll see how that works.

It will be interesting for sure. What started this whole conversation for me, the idea of talking about this topic was I’d had a recent development in a case. I won’t give any details but shifting now to the rule of civil procedure 166 G. Now, let me clarify, because I keep saying it’s 166 G, it’s really 166 subpart G. There’s a big distinction in the Texas rules of civil procedure between Texas rules of civil procedure 166 and rule 166 A with no parents, because 166 is the general rule governing pretrial conferences and 166A with no parents is the rule governing summary judgments.

By the way, we told you all this would be super nerdy. You’re getting to see that content connection here.

Absolutely. This is the nerdiest of nerd topics right here. I think what I’m about to talk about is a very underutilized tool that trial lawyers really must think about before again, committing all the time and energy it takes to try a case. When you’ve got a lingering legal issue out there that could be case dispositive.

What rule 166 allows under subpart G is for a trial court in a pretrial conference to identify and consider legal matters to be ruled on or decided by the court. What does that mean? There’s case law that says, including a case from a few years back, I think 2018 out of the Texas Supreme Court, that essentially treats this as a pretrial-directed verdict opportunity or as an untethered summary judgment opportunity.

When I say untethered, I mean not tethered to the general rule of 166a, which requires 21 days’ notice of a hearing on an MSJ and seven days’ notice of a response. It requires the responding party to submit their response and any evidence within seven days. Now this is, I think, in the nature of a motion that is not evidentiary, just by nature of the way it’s described in the rule itself. It’s a legal matter to be ruled on or decided by the court.

What can we give as an example of this? In my case, again, keep staying away from the details of the case, we had prevailed on three of the four theories of liability at the summary judgment stage, and we had one theory left. In looking at the case, working it up, and getting ready for trial, we identified some real problems with the theory and the damages that the plaintiff was asserting in that case.

We prepared what we called essentially a Rule 166 G motion for disposition on legal issues, which is just a reworded motion for summary judgment and we explained to the court, because courts aren’t necessarily that familiar with this, strangely, for one, trial judge, you have the power to decide legal issues here that can be case dispositive.

If we present this legal issue to you and here, in my case, it was the type of damages that the plaintiff was seeking to recover and whether those were recoverable at all under the remaining theory that was asserted. If you rule in our favor and you agree that this type of damage is not recoverable, then essentially the whole case goes away.

Pre-Trial Strategies: If you rule in our favor and agree that the damage is not recoverable, the whole case goes away.

We employed that device and we’re at a pretrial hearing Monday morning. We’ve got several issues to argue at pre-trial, including motions of limine and preliminary issues regarding the jury charge and witness lists and all that stuff that you get into in the meat of a pre-trial hearing. We persuaded the court to take this issue up first and we argued about it for a good long time.

The court actually took it under advisement before considering any of the other pretrial matters, came back, and granted the motion. What we were able to achieve under Rule 166G and what anybody else could achieve using this device is we were able to completely avoid a trial in which the other side was asking for my client to pay a considerable amount of damages and attorney’s fees.

I think this probably ought not to be considered a do-over of a previous summary judgment motion, because I think you have to be careful. Courts are going to probably frown on you just refiling your MSJ as a 166 G motion but again, if you look at the case objectively and if you’ve got a legitimate legal issue that for whatever reason, you haven’t tried to take it up on permissive appeal. If you’ve done a permissive appeal and you lose, it’s definitely not the thing to do.

At that point, it’s already been decided anyway.

If it was taken, if it was accepted but yes, otherwise you’d be correct. I guess what I’ll say is to be careful about just repackaging your previous MSJ or motion for permissive appeal. That may be a closer call into a rule 166 G motion. This is something that even though I would love to see this decision made much earlier in the case, because by the time you get the pretrial. Unless this is going to depend on the court you’re in.

The schedule that they follow, here in Travis County, pretrial is generally the Monday of trial. You’re right on the cusp of trial. You’ve already put in a lot of time getting ready. If you’ve got a pretrial that’s two weeks out, it could be effective. I think it’s something that is worth, in every case, just as part of your pretrial checklist.

Again, talking to trial lawyers, just saying, are there any legal issues that we have not attained rulings on or that we could present to the trial judge as grounds for disposing of, even if it’s part of the case, even if you’ve got a multiple theory case. If you haven’t been able to kick theories in a no-evidence summary judgment on defenses, for example. This is a tool.

I like to say, that I speak about this largely from the perspective of someone who’s done it from the defense side, but not exclusively. I think it’s like summary judgment is the best example. It’s so close to what a summary judgment is that It could be used for any of the same reasons that summary judgment is.

That includes knocking out defenses that aren’t recognized in Texas law and things that if you’ve got a situation where the defense just won’t yield on certain theories and is insisting as they’ve got 10 defenses in their proposed jury charge, for example, is this something that can be knocked out so that it streamlines the trial of the case?

That’s my semi-war story on rule 166 G. It’s a very underutilized tool that I think anybody who’s actually going to trial and is having a pretrial hearing needs to put on their checklist if it’s not already there.

I agree. I’ll add as a persuasive point, explain to the court why it matters and how it’s going to impact the way that the case is tried. For example, if you have dueling contract interpretations and the court just hasn’t ruled one way or the other, but also hasn’t determined it’s ambiguous. You need that ruling because that is going to change the way that the case is tried. It’s going to change what evidence can or can’t come in.

Push for that type of ruling. Preemption, if a particular claim is preempted, explain how that’s going to impact what’s going to get tried, what’s going to come in in terms of evidence, and how it may impact ultimate appellate disposition, those types of things aren’t going to change whether you’re entitled to the relief, but it may color the judge’s impression of why it makes sense to deal with it at this point.

It’s those types of issues, things that are real legal questions that may change the way that the case is or isn’t tried. You do need this pretrial disposition rather than going all the way through a trial only to find out the trial court let in a bunch of evidence that it shouldn’t have. I’m thinking in particular in the contract construction context, if it’s not ambiguous, the jury shouldn’t hear any type of extrinsic parole-type evidence. If a court doesn’t make this ruling in advance of trial, it’s very possible that it will and then you’re looking at a do-over.

Pre-Trial Strategies: You need the pre-trial disposition rather than going to a trial only to find out the trial court let in a bunch of evidence that it shouldn’t have.

Yes, I 100% agree. That same problem probably could be addressed in the next device we’re going to talk about briefly, motions in limine. I don’t know what you’ve seen, Jody. I’ve seen motions in limine that were just a few items, but then I’ve also seen them where there were a hundred in limine discussion items.

Again, now Travis County has a very good standard pretrial motion in limine that covers a lot of the stuff, a lot of the ground that you would ever be concerned about, like talking about insurance and those kinds of things that’s settled now, you shouldn’t even have to file a motion on these. I think that’s great.

For those issues, I do think you could talk about, say, ambiguity in a motion in limine. All that all motion in limine accomplishes is the other side, if you prevail on it, having to advise the court, “Hey, we’re about to go into this.” You’re much better off with a definitive pretrial ruling on whether a contract is ambiguous that would influence what evidence could be offered or couldn’t be offered at trial, than waiting until they try to offer the evidence at trial and then continuing to assert the same objections.

Looking around and attending trials, you’ve got a jury in the box. You’ve got to streamline your case as much as possible. If you lose the jury because you’re bored or they’re bored or the jury starts to think that you’re just interrupting for no good reason, they don’t understand. They don’t know what the bench conferences are about and why they’re important.

I don’t want to discount the importance of motions in limine because as a younger lawyer, I always thought, “That’s just trial lawyer stuff.” I think as I’ve gone along in my career, I’ve come to appreciate that there are opportunities for advocacy and motions in limine on legal issues, that can impact how a case is tried. It’s like the old be careful how many grounds you raise in your brief or a motion for summary judgment because if you throw 10 variations of the same issue in front of the court on motion in limine, after a while, I think the court’s eyes just glaze over.

You’re probably going to get them denied and then what do you have to do? You have to object every single time to evidence that you don’t think ought to be coming in. Then you look like the bad guy in front of the jury. I don’t have any real strong examples of legal advocacy in motions in limine other than what we’ve already talked about.

I just think it’s something else that if you’ve got legal issues and if you haven’t addressed them using one of these other devices previously, don’t overlook it as a possible way of at least focusing the court’s attention on an important issue. I have seen some motions in limine that have definitely shaped the structure of how a case is presented and ultimately had, even though they don’t preserve error in and of themselves, definitely had an impact on what the prospects for appeal would be. Just another device not to overlook.

I agree. The only thing I would say about it is just what Tod said, they don’t preserve anything. Just because you file a motion in limine and it’s granted or denied. That makes no difference in the appeal. If the other side blows through one and allows something in front of the jury, you have to object if the trial court denies it and the other side goes to introduce something and it was denied, you still have to make your objection.

Before trial, every single time read the Texas rule of evidence, 103 about how you preserve error on this stuff and consider 103 B which says, “If a court hears your objection outside of the jury’s presence and rules that it’s admissible, you don’t have to renew your objection.” You don’t have to get a running objection, but consider getting a running objection. Just keep those things in the back of your mind because all motion in limine does is you have to go talk to the judge before you bring it in. It doesn’t make any difference in terms of keeping the evidence out for appellate purposes.

Let’s move quickly through the last three. We’re coming up on our usual time limit and we want to be respectful of everyone else’s time and not draw on and on forever, which we could do.

I think it’s too late for that, but at least hopefully if they’re still reading, we’ll get them out of here.

The next three are I think pretty traditional avenues for raising legal issues. Thinking about a jury charge, what’s one of the best objections to ever make to a proposed jury question? “There’s no evidence to submit this question, your honor because it’s a theory that’s not recognized in Texas law.” would be one.

“No evidence to submit this question to the jury, your honor, because there literally is no evidence to support the theory.” They have presented no evidence of whatever the theory of liability is. Now again, this is where I think our advice to the readers may differ a little from what we’ve said before. When you’re handling a formal charge conference, it is not the time to be shy about the grounds that you raise as objections, because your paper as a lawyer will be graded based on the objections you make to the charge.

They have to be clear and specific and present to the trial judge exactly the reasons why they think the proposed charge is erroneous. That no-evidence objection is a really solid one as long as it’s a good objection. I would say I’ll back off of what I said a little bit. If there’s evidence, don’t object to new evidence.

If you know that there’s evidence to support submission, or if there’s some other defect in the charge that you want to argue, say, maybe a better example, one that’s more useful here is that the charge, as it will be submitted, misstates the measure of damages, say, for example. That there’s some real legal defect in the charge.

Those are probably more in line with what I had in mind to talk about in terms of winning a case in the trial court on a legal issue. Ideally, an issue with the measure of damages would have been discussed long before the formal charge conference. You would have had discussions with the opposing council along the way you would have had informal charge conferences during the trial. Those are always a mess because you’re down in the ditch in the trial and it’s really hard to focus on the charge.

Which is why you should hire appellate lawyers to help you.

You snatched it right out of my mouth, Jody. Yes, that’s the shameless plug. I’ve said it before and I’ll say it again. When the formal charge conference happens, if you’re the lead trial lawyer, you want to be focused on your closing argument, what you’re going to tell the jury. You don’t want to be focused on trying to preserve charge objections.

That’s what nerdy people like Jody Sanders and I heard for. That is a better example of if there’s a problem with the measure of damages, there’s a problem with the elements as stated in the instructions. There was a time in Texas practice when charge objections were a huge part of what you would see decided by the appellate courts.

The pattern jury charge committee, those committees that write the different volumes have done a great job of fleshing out issues to come up with charges that are generally going to meet what the law requires. They’re not the gospel. You can add to or subtract from depending on your case. They don’t exist for every single theory that’s being prosecuted to the jury.

There are some that it would be nice if they did exist, but they don’t. It’s always good to start off with the PJC as your starting point if you can but you’ve got to look at the law. There have been rare instances in which even the Supreme Court has said the PJC is not quite correct on this. Don’t be afraid to advocate. If you think that the PJC gets it wrong, be sure and preserve that objection.

I actually have this in the wrong order. Jury charge is the last opportunity to raise these sorts of issues before the jury gets the case. Directed verdicts actually would come before objections to the charge would be made. I need to adjust that in my outline. If we ever did write a paper on this, Jody. That’s pretty much it as far as my observations about the charge unless you had something else.

Pre-Trial Strategies: Don’t be afraid to advocate if the PJC gets it wrong.

I think Todd’s right. Don’t be shy about objecting. You can get by with no evidence if you are making Castile-type objections, which is a little bit outside the scope of the legal issues. Just make them more specific. I think the courts are tightening the standards on preservation there, and I’m not sure a no-evidence challenge will suffice anymore.

If you have a question about whether to object or submit a question and what’s required, just do both. Our rules are a little bit hinky on that. There’s not always a clear answer. If you’re concerned, should I submit my own proposed question? Just do it. There’s no downside as long as you think it’s the correct version of the question. That’s it.

You mentioned a directed verdict. I don’t know that there’s much different to say other than what we’ve said, but I think that’s right. Same types of things. No evidence. No causation, no legal basis to submit this particular claim defense, whatever it is to the jury. If you can do a written version to follow up, great. If you can’t, that’s okay too.

The nice thing about that is the timing of it. If you’re the defendant, you can present it when the plaintiff closes the plaintiff’s evidence. Depending on what else you have, it could theoretically cut off trial time for you if it really and truly has failed to meet its burden on the elements of its claims. Before we finish on jury charts, though, I did want to mention, your point, Jody, about objecting versus requesting.

The PJCs do have a specific roadmap on that. I think every volume now of the civil PJCs includes that. There is a guide that you could use based on the PJCs but I do think you’re right, Jody. The best practice is if in doubt, to go ahead and request. Go ahead and submit a question, definition, instruction, whatever, just to avoid there being any question about whether an error was preserved.

On the directed verdict, it really kind of is. All these things build on each other and you are raising your best argument as to why the jury shouldn’t get the case, why there haven’t been those basically the same arguments that you make in the jury charge. There’s no evidence of this claim, that claim. There’s not doing it in the context of the charge itself. It’s a little different, but I think the strategy is essentially the same.

I think he can raise it again after the close of all evidence. I don’t know what the chances of success would be at the close of all evidence versus the close of the plaintiff’s case. If you’re on the defense side, I suppose a plaintiff could raise one on defenses at the close of the defense case. Don’t see that happening too much.

I will say if you’re the defendant and you have an affirmative defense and you think you have conclusively proved your affirmative defense or proved it as a matter of law, move for a directed verdict on it. Now the court may not grant it, but there’s no harm in it. That’s your first time really to do it probably because the court hadn’t heard your evidence before then.

I think that would be a rare case but if it is the case, I agree that it ought to be considered. This is again, where having an appellate lawyer at trial with you, I think could be a big benefit. I just can’t imagine being able to shift my mindset that quickly between the presentation of evidence and arguing legal issues like this. That’s probably one reason why I’m not a trial lawyer and I don’t want to be, because I know what my lane is and I’m going to stay in it.

Pre-Trial Strategies: Having an appellate lawyer trial with you could be a big benefit.

That leaves us with JNOV. I don’t know that we have. JNOVs are typically the last thing that happens after the verdict comes in. The jury has filled out the verdict form. You know what the findings are. You will see sometimes things like inconsistent findings in the charge, but those are things that ideally you would have objected to earlier on.

It winds up being just looking at the directed verdict arguments after the charge and the verdict form have actually been filled in. One thing we haven’t talked about much in this conversation, Jody, is what’s necessary to preserve error for appeal. The JNOV is the last gasp for preserving legal issues for appeal.

You might have preserved it elsewhere, say, in the jury charge objections but, when it comes to legal issues that are likely to go up on appeal, this is something that you need to look at it and in all likelihood need to file a written motion for JNOV asserting the points that you intend to raise, legal issue wise on appeal or there’s still the risk of, of waiver.

I agree with that. The only couple of super nerdy inside baseball things I’ll say is technically speaking, a JNOV is when you’re trying to get rid of the whole thing, a motion to disregard jury findings when you’re just trying to get rid of one. The other thing, it depends on your appellate court and how lenient they are, but if you look at the rules for perfecting an appeal.

A motion to modify and a motion for a new trial extends the deadline to file a notice of appeal. A motion for JNOV is not listed. If you’re going to file one, just call it something alongside either a motion of new trial, a motion to modify, put it in there, because then for sure it will extend your appellate deadlines. If you just call it a JNOV and don’t file anything else, it might not.

One thing I think, and that’s a great point too about the motion of disregard, if it’s just partial. One thing to add to this, and it is a little beyond the overall scope, but if we’re going to talk about preserving error and extending deadlines, the Supreme Court has said you can file essentially a one-paragraph motion for a new trial, a pro forma motion for the sole purpose of extending deadlines, and that is okay.

Now, it won’t necessarily preserve any error, but if all you need to do is extend deadlines, then that is perfectly legitimate. It’s a way, for whatever reason, if you need the trial court to retain jurisdiction over the case longer, if you have some other motion that you think might have merit that you want to get in front of the trial court while it still has jurisdiction, then extending plenary power and extending the deadline for filing a notice of appeals is often beneficial. I think that’s all I have to say on this topic today. Jody, what about you?  

I think that’s it. This is a good list of things to think about. We appreciate you all for sticking with us to the end.

Understand we did basically very little preparation for this topic. A lot of this was, again, two lawyers with microphones talking about nerdy appellate stuff. We’re going to disclaim that this is 100% accurate.

Do your own research and hire an appellate lawyer, but it’s a good roadmap anyway.

It is. These are all very important issues to think about for folks who are litigating and trying cases. This is the fun part of what we do is helping to identify the areas where these sorts of devices can make a difference in the outcome of cases. Thanks for bearing with us.

Love the show? Subscribe, rate, review, and share.

A special thanks to our sponsors:

Join the Texas Appellate Law Podcast Community today: