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Sep 8

Judges Cannot Grant Relief Unless It Is Requested in Pleadings or Tried by Consent

No judge or judicial candidate should want to read this headline: "Court of Appeals reverses judge who screwed gay dad."  Sadly, treating gays and lesbians unfairly is currently good politics if you are a Republican worried only about winning a primary in Texas.  Sadder still is what happened to William Flowers in his modification lawsuit in the 309th District Court. I only handled the appeal, but I personally would have counseled a gay father that winning custody in a jury trial in Harris County would be very unlikely, no matter who the judge was.  However, Mr. Flowers asked to switch primary custody of his three children to him.  By agreement, Associate Judge Charlie Prine presided over the trial.  The jury heard the evidence and decided that the mother should retain the right to determine the children's primary residence.  No question was submitted to the jury about changing the geographic residence restriction because neither party's pleadings asked for any such change and not a ... Read More >

Post in: Trial, trial by consent

Jul 27

Witnesses and Parties Should Be Respectfully Addressed in Court

In court, attorneys should properly refer to the parties and witnesses as “Mr. Smith “ or “Dr. Green” or “Ms. Olivares.”  Lawyers should not refer even to their own clients by just their first names in court.  Attorneys often seem to forget that formality and decorum and politeness (not to mention civility) are both expected in court and necessary to earn the proper respect court proceedings require.  Avoiding use of first names for witnesses and parties was also once a matter of basic civil rights.  Hamilton v. Alabama, 376 U.S. 650 (1964) is also remembered as the “Miss Mary” case.  At the time, black witnesses and defendants in courts in the South were called by just their first names, unlike white people who were referred to as Mr. or Mrs. or Miss. When Mary Hamilton was arrested at a civil rights protest in Alabama in 1963, the prosecutor referred to her as just ‘Mary’ and she refused to answer his questions until he addressed her with the same level of respect that was given to ... Read More >

Post in: Constitutional Rights, Trial, Witnesses

Jun 5

The crime of witness tampering

The crime of tampering with a witness applies to both civil and criminal cases and can involve either offering or providing "any benefit" to the witness or acting to coerce a witness.  Witness tampering can involve influencing a witness to testify falsely, influencing a witness to avoid testifying or influencing a witness to not press criminal charges.  "Any benefit" is a very broad term and could include promises of money, assistance with a lawsuit or helping covering the costs of a move or vacation.  Case law summarized below shows that it does not take much to be considered coercion.  All lawyers should be very careful in dealing with witnesses, especially those witnesses who are crazy, who have a history of making false allegations or who tape record the promises and threats they receive about their testimony.  The best practice is to tell any potential witness,"I just want you to tell the truth," early and often. Section 36.05 of the Texas Penal Code states in part:  Sec. ... Read More >

Post in: Crimes in the courtroom, Trial, Witnesses

Jun 2

The Texas Constitution Has Two Guarantees to the Right to a Jury Trial

I recently argued to Judge David Farr that the amount of reimbursement due the community estate is not a jury question because reimbursement is once again an equitable remedy and historically, juries were not used in courts of equity.  Judge Farr went with the Pattern Jury Charge book but then the parties stipulated on the amount.  It turns out my argument was wrong because the Texas Constitution contains two provisions which guarantee the right to trial by jury (at least in district courts).Taylor v. Taylor, 63 S.W.3d 93, 99 (Tex. App. - Waco 2001, no pet.) provides this explanation:        Article I, section 15 is a part of our Bill of Rights. See TEX. CONST. art. I, § 15. It provides in pertinent part:   The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.       TEX. CONST. art. I, § 15. Article I, section 15 guarantees the right of trial by jury for those ... Read More >

Post in: Jury Trial

Jun 2

When Does An Inmate Have The Right To Participate In Trial?

At some point, we all handle cases where the opposing party is incarcerated and pro se.  The recent case of Camp v. Camp, No. 07-11-00282-CV (Tex. App. - Amarillo 8/3/2012, no. pet.)(mem. op.) summarizes the law on when the inmate is entitled to be present at trial.     The Texas Supreme Court in the case of  In re Z.L.T., 124 S.W.3d 163, 165-6 (Tex. 2003)  also noted the factors courts should consider in making arrangements for the inmate to be brought to court or to participate in some alternate fashion (by telephone, deposition or even affidavit): Following the Seventh Circuit's decision in Stone v. Morris, 546 F.2d 730, 735-36 (1976), Texas courts of appeals have recognized a variety of factors that trial courts should consider when deciding whether to grant an inmate's request for a bench warrant. These factors include the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner's ... Read More >

Post in: Trial

Jun 2

A Quote to Give a Judge Who Feels Resolving a Case Quickly Is More Important Than a Fair Trial

The Supreme Court of Texas has stated: Although a goal of our system is to resolve lawsuits with "great expedition and dispatch and at the least expense," the supreme objective of the courts is "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." This means that "convenience and economy must yield to a paramount concern for a fair and impartial trial." And basic to the right to a fair trial--indeed, basic to the very essence of the adversarial process--is that each party have the opportunity to adequately and vigorously present any material claims and defenses. Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425, 437 (Tex.2000)(citations omitted). ... Read More >

Post in: Judge Problems, Trial

Apr 28

Trial cannot proceed with just 11 jurors unless the juror is stricken because he or she is constitutionally disqualified

A trial court should declare a mistrial if a juror realizes during the trial that he knows some of the people involved in the case and thus might be impartial.  It violates the constitutional right to a jury trial to proceed with 11 jurors absent agreement of the parties unless the juror is disqualified within the meaning of the Texas Constitution (physical or mental incapacity of the juror, not caring for a sick family member and not realizing he or she might be biased).  In re M.G.N., 4th Court of Appeals, 04-12-000108-CV, 4/24/2013. ... Read More >

Post in: Jury Trial, Trial

Apr 28

Attorney cannot intervene for fees after judge approves MSA and renders judgment

This case involves our colleague, Julia Maldonado, who represented the wife at mediation where the parties settled then at the prove up where the judge approved the agreement.  Maldonado then filed a motion to withdraw, which was granted, and then attempted to intervene for her fees.  The trial judge granted a motion to strike the intervention.  Held: an intervention filed after judgment, including after rendition of judgment, is not timely.  Maldonado v. Rosario, 1st Court of Appeals, 01-12-01071-CV, 4/2/2013. ... Read More >

Post in: Attorney's Fees, Intervention, Trial

Apr 28

The trial court did not abuse its discretion by conducting a two day divorce trial in April 2009, then abating the trial while IRS tax issues were resolved and then making a rendition of the divorce in November 2010 based on a cut off date of April 1, 2009 for characterizing and valuing property

The wife who complained about this unusual procedure did not complain to the trial court at the time until she filed a motion for new trial after rendition and judgment.  The court of appeals ruled that by participating in this procedure without objection, the wife waived any complaint on appeal.  This case reminds us that objecting to a trial court ruling for the first time in a motion for new trial may be too late.  TRAP 33.1(a)’s  requirement that a complaining party on appeal must show he or she  “made proper, timely and sufficiently specific objection or request in the trial court and obtained a ruling” is often not satisfied by waiting until the motion for new trial to object.  Richard v. Towery, 1st Court of Appeals, 01-11-00132-CV, April 18, 2013. ... Read More >

Post in: Divorce, Property Division, Trial, Valuation

Apr 27

How NOT to show failure to supplement when trying to strike evidence not supplemented 30 days before trial

The wife’s objection to financial documents which she said had not been produced at least 30 days before trial was properly overruled by the trial court because the wife did not show to the trial court that: (1) her discovery request specifically asked for the document, and (2) the objection to the wife’s production request made by the husband was not ruled on by the trial court.  Also, the husband’s attorney said that his response stated the documents were available at his office for inspection and the wife’s attorney never came to look at them.  The wife would have had to prove that the documents were not really made available for inspection.  Part of the moral to this story is that discovery requests and responses are not filed with the clerk, so a party who objects to evidence that was not disclosed in discovery must get the discovery request and response into the record, either as an exhibit in court or at least as an attachment to a motion to compel.  This case also says that if ... Read More >

Post in: Discovery, Trial

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