Texas Justice Court Judges Association Professional Development - October 16, 2017 Texas Justice Court Judges Association Judge Ralph Swearingin Jr. Tarrant County Lancaster Smith Jr.- Attorney at Law Marty Leewright Attorney at Law Special Thanks to Daisy Espinoza Administrative Court Clerk, Tarrant County Special Thanks to Texas Justice Court Training Center and Texas Justice Court Quick Reference Trial Handbook 2013
Attendees will be able to: Gain a better working knowledge of the Trial Handbook; Gain confidence in the ability to identify issues in auto negligence cases; Become more familiar with the applicable sources of law; Become more confident in your ability to conduct a Civil Jury Trial. 2
This class will be set up as a real trial with exhibits, witnesses, etc.; Have the following handbooks and sources ready; Quick Reference Trial Handbook (Civil Jury Trial Section) Texas Rules of Civil Procedure Texas Rules of Evidence Texas Civil Practices and Remedies Code Government Code Juror Selection We will be following the Handbook in sequential order for the most part; Some of you have been selected as participants (parties, witnesses, jurors); When appropriate, a time-out may be taken to address a teaching point; 3
All materials will be covered in 4 hours; therefore, we will begin and end on time. During the course of class we will have two scheduled breaks; 2:30 PM to 2:45 PM 4:15 PM to 4:30 PM ( Jury will deliberate during this break, everyone is welcome to stay and observe the process). Please write all questions down and hold until the Q & A towards the end; For purposes of this Trial, we will begin here with a jury panel of prequalified selected jurors. 4
Pre-Trial Preparation Clerk prepares case file along with necessary forms below; Panel List ( Sent to Court by Jury Room) 5 copies: 2 for Judge, 1 for Bailiff, 1 for Plaintiff and 1 for Defendant Juror Excusal & Notification of Jury Activity forms Juror Information cards (Copies for Judge, PLTF and DEFN) Judge will read and review case file to identify any pre-trial motions, legal issues, relevant law and rules; 5
Pre-Trial with Parties Judge meets with all parties to offer them one final opportunity to talk and possibly reach an agreement that is mutually beneficial to both sides. Should the parties decide not to take this opportunity then: Parties will be asked; If they have all their exhibits and do they have copies for both sides. Are their exhibits marked? Is there a need for any media prompts such as; projector, Elmo etc.. Is everyone present? Including all parties, Attorneys and witnesses. Parties are given time to discuss their exhibits. Any exhibits not agreed to, the Judge then makes a ruling. (Pre-Trial ruling and admission of evidence helps provide a smoother trial process.) 6
Pre-Trial with Parties - Continued Judge will hear any pre-trial motions. (Motion in Limine, etc.) Judge informs all parties of the following: How the trial proceeds from beginning to end (steps of the Jury Trial) Each side is provided with a list of numbered Jurors/Jury Panel and a Juror Information Sheet. Voir-Dire (3 Peremptory Strikes) Inform parties of max time periods; 15 minutes for Voir-Dire 10 minutes for opening 10 minutes for closing (Plaintiff begins and has final closing opportunity) Plaintiff s burden of proof (preponderance of the evidence) Jury verdict form 7
Pre-Trial with Parties - Continued Judge will swear in all parties and witnesses. If necessary, witnesses will be placed under The Rule (number 18 of the TJCRTH); Everyone will stand as Jury enters the room (Robe or no Robe?); Judge will then ask if either party has any questions or any other matters that need to be discussed. Note: For purposes of this Mock Trial - we will be following the sequence of order below using the Texas Justice Court Reference Trial Handbook. Judge will Cover: Numbers 1-7, skip to numbers 12-14, go to 16-17, skip to numbers 19 20 and 23 (right to appeal). 8
ORDINARY CARE means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. NEGLIGENCE means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances. PROXIMATE CAUSE means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event. PREPONDERANCE OF THE EVIDENCE means the greater weight and degree of credible testimony or evidence introduced before you and admitted in this case. DO NOT LET BIAS, PREJUDICE OR SYMPATHY play any part in your deliberations. 9
TRCP 503.4 Pretrial Conference 166. Pre-Trial Conference 500.4 Representation in Justice Court Cases 500.6 Judge to Develop the Case 500.7 Exclusion of Witnesses 267. Witnesses Placed Under Rule 504.2 Empaneling the Jury (c) (d) (e) 227. Challenge to Juror 228. Challenge for Cause Defined 232. Making Peremptory Challenges 504.2 Empaneling the Jury (h) 226. Oath of Jury Panel 265. Order of Proceedings on Trial by Jury 266. Open and Close- Admission 268. Motion for Instructed Verdict 269. Argument 10
Texas Justice Court Quick Reference Trial Handbook 10 th Edition 2013: Calling Cases For Trial TEX.R.CIV.P. 503.6 (a); 503.3(b); 23.002, 30.003 and.005, CPRC Calling The Roll Of The Jury Panel - Gov t Code 23.203 Juror Fine - GOV T CODE 62.111 Drawing the Jury - TEX.R.CIV.P. 504.2 (A) Oath - Gov T Code 62.412 and TEX. R.CIV.P. 504.2 Instructions To Jury Panel TRCP 226a Determining Qualifications Of Jurors - Gov T. Code, 62.102 Gov t Code, 62.103 Gov t Code, 62.104-.1041 Exemptions From Jury Service - Gov T Code 62.106-62.109 Gov t Code, 62.108 Judicial Excuse Of Juror - Gov T Code 62.110 Seating A Panel TRCP 225 Questioning The Jurors (Voir Dire) - TEX.R.CIV.P. 504.2 (c) Challenges For Cause TEX.R.CIV.P. 504.2(d) 11
Texas Justice Court Quick Reference Trial Handbook 10 th Edition 2013 - CONTINUED Challenges Not For Cause - TEX.R.CIV.P. 504.2 (e) If Jury Is Incomplete TEX.R.CIV.P. 504.2 (g) Jury Sworn TEX.R.CIV.P. 504.2 (h) Batson v. Kentucky, 476 U.S. 79 (9186) Additional Instructions To The Jury TRCP 226a Exclusion Of Witnesses The Rule - TEX.R.CIV.P. 500.7 Order Of Proceeding (Examining Witnesses0 - TEX.R.CIV.P. 292, 293. JP does not charge a jury in civil case Tex.R.Civ.P. 504.3 Jury Returns The Verdict Rendering Judgment In Open Court TEX.R.CIV.P 505.1 Discharging A D eadlocked Jury Civ.Prac. & Rem. Code, 30.009 Ruling On A Motion For A New Trial - TEX.R.CIV.P 505.3 (c) Appeal - TEX.R.CIV.P 506.1 (a) and (e) and 506.2 All Trials Voter Qualification Elect. Code 11.002 12
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Motion in Limine Pretrial Motion requesting the court to prohibit opposing counsel from referring to or offering evidence on matters so highly prejudicial to moving party that curative instructions cannot prevent a pre-dispositional effect on the jury. (Purpose is to avoid injection into trial of matters which are irrelevant, inadmissible, and prejudicial.) The movant must state 1. What evidence the party anticipates the opposing side may attempt to introduce, or what question the opponent will ask in front of the jury and, 2. Why the evidence or questions are inadmissible. The Court s ruling is not a ruling excluding or admitting evidence. It s merely a ruling that prohibits a party from asking a question or offering certain evidence in front of jury without approaching the bench for a ruling. The Court s ruling is never a reversible error. 14
Voir-Dire (French- to see, to say; to speak the truth) Denotes the preliminary visual and oral exam made by the court and the parties/attorneys to determine their (potential/jurors) qualifications and suitability to serve as jurors in the case. (Questions go to who can be fair) Each side is given 15 minutes After parties make Strikes Judge will select remaining 6 Jurors. Permits Attorneys/or parties to question jury panel about possible bias or prejudice that would prevent impartial service on this case. 3 strikes(peremptory/strikes challenges) Attorneys/Parties are not to get into the facts; not preview the case; not present what the outcome will be; and, what the parties/attorneys say is not evidence. 15
Challenges for Cause The Court may allow the party/attorney to rehabilitate a juror who has been challenged for cause. Opening Statement Party/Attorney opportunity to explain what they believe the evidence will show. It s a brief explanation of what the plaintiff and defendant believe the evidence will show in their case. There is no argument at opening but it s ok to express what a party believes the evidence will show. 16
Directed Verdict TRCP 268 A motion for directed verdict shall state the specific grounds therefor. No controverted fact issues for the fact finders determination and the movant is entitled to judgment as a matter of law. Consider whether there is any evidence of probative force to raise a fact question on the material questions presented, and consider all the evidence in a light most favorable to the party against whom the verdict may be instructed and disregard any contrary evidence and inference. If there is any conflicted evidence of probative value on any theory of recovery, an instructed verdict is improper. After the Plaintiff rest, either party is permitted to move for, or the court on its own motion may grant a directed verdict. A party may make the motion orally or in writing after one s opponent rests or closes or either party may make the motion after both parties close. Also known as instructed verdict or judgment as a matter of law in civil cases. This is a procedural motion used to assert a party s contention that there are no controverted fact issues for the fact finder s determination and that said party entitled to a favorable judgment as a matter of law It is not unusual for a party to make the motion at more than one stage of trial. NOTE: This is a procedural device and it is not a mistake if you deny the motion and proceed with a full trial. However, denial at one stage does not preclude granting the motion at another stage, if you determine that one party has not met the required burden of proof. 17
Closing Is to summarize what the evidence shows and to argue for a verdict in your favor. Jurors are: Sworn in Exhibits identified as previously admitted by the court Given pad and Pens ( Notes are not evidence and are only used to refresh that Juror s memory) Plaintiff and Defendant Opening Brief explanation of what defendant and plaintiff believe evidence will show in their case. No argument at opening! Ok as to what a party believes the evidence will show. 18
Preponderance of the Evidence The greater weight of credible evidence. In sort, jury must decide in their own mind the questions of which party is more believable on the facts. (When both parties are swearing under oath to contradictory or mutually exclusive facts.) In any Civil Trial, the burden of proof is on the plaintiff to prove by a (preponderance of the evidence) the claim or cause of action. A defendant seeking to overcome the plaintiff s (Prima Facie) case may raise an (affirmative) defense or any matter constituting avoidance. If any affirmative defense is raised by the defendant, the defendant has the burden of proof 19
Submitting the case to the Jury Jurors take all evidence with them to the deliberate. Jurors reminded that their notes are not evidence; only their reminders; and left with court to be destroyed. Negligence- (duty, breach, causation, damages) failure to use ordinary care; ordinary Care= failure to use that level of care that a reasonable person would use under the same or similar circumstances and conduct fell below the level of care and damages in jury. 20
33.001 Proportionate Responsibility If plaintiff > 50% at fault = Plaintiff can t recover 33.004 Designation of Responsible Third Party Civil Practices & Remedies Code Chapter 33. (a) A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party. The motion must be filed on or before the 60 th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date. (f) a court shall grant leave to designate the named person as a responsible third party unless another party files an objection to the motion for leave on or before the 15 th day after the date the motion is served. (j) Unknown person 33.013 Amount of Liability: In considering your verdict and weighing the evidence; if you find the defendant s liable, the jury may consider that the defendant liability (responsibility) may be reduced by the % of causation found to have resulted from any negligence or acts/omissions of the plaintiff. 21
General Rule (in a personal injury case) May not directly argue the seriousness of personal injury from an auto accident correlates to the extent of damages unless: the party can produce competent expert testimony; absent such testimony, any inference that minimal damage to plaintiff vehicle translates into minimal personal injury would necessarily amount to unguided speculation. Therefore, without expert testimony on the issue of causation between the collision and injuries to plaintiff; you cannot introduce photos related to damages to vehicles to invite the jury to speculate as to injury. Doctrine of Respondeat Superior Let the master answer. The doctrine means that a master is liable in certain cases for the wrongful acts of his servant. An employer is liable for injuries to persons or property of another proximately resulting from acts of employee done within the scope of his employment in the employer s service. If the negligence was/was not the result of the negligence of any agent or employee acting within the scope of his/her agency or employment with the defendant; accordingly the defendants be/not be responsible under the doctrine. 22
Diminished Value The term diminished value damages refers to a loss in the market value of a vehicle allegedly caused by market perceptions that a vehicle involved in an accident, though fully repaired, is worth less than the same vehicle that has never been damaged. See American Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W. 3d 154, 156 (Tex. 2003). Although it is now clear that insureds cannot recover diminished-value damages under a Texas Standard Personal Auto Policy, this was not clear until October 17, 2003, when the Texas Supreme Court issued its opinion in Schaefer. 23
Judge Ralph Swearingin Jr. Justice Court Judge, Precinct 1, Tarrant County 817.884.1395 Lancaster Smith Jr. Attorney at Law McGilberry & Shirer 5720 LBJ Freeway, Suite 575 972.392.1225 Marty Leewright Attorney and Mediator 101 Summit Ave, Suite 400 Fort Worth, TX 76102 817.716.5110 24
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Let the Trial Begin 26
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