Jury charge practice in Texas trials just got a shakeup thanks to the recent Horton v. Kansas City Railway Co. decision. In today’s episode, Todd Smith and Jody Sanders delve into the Texas Supreme Court’s recent pivot on Casteel error in jury charges. They analyze the implications for appellate practice, sparked by the Court’s revised stance in the Horton case. Formerly relied upon for its presumption of harm, Casteel error now requires prevailing parties to rebut a presumption that any error affected the jury’s verdict. This nuanced shift, explored in detail by Todd and Jody, marks a significant evolution in Texas appellate law, prompting fresh considerations for trial attorneys and appellate strategists alike.
We’re going to focus on a topic that Jody has dived into quite deeply. That is the Supreme Court’s treatment of Casteel error and jury charges. Jody spoke and submitted a paper at the advanced civil trial seminar that’s put on every year and re-broadcast on Texas Bar CLE. I’ll let Jody tell the story, but it was striking following this on social media that Jody was about to submit his paper on Casteel. The Supreme Court turned around and did an about-face on some issues, or maybe a right turn or a left turn is how we might describe it. Jody, let me let you set the stage. We’ll have a conversation about the new opinion on rehearing in Horton and the fun appellate lawyerly things that come out of that.
Let’s start with a little table setting because some of you who are reading know what we’re talking about when we talk about Casteel and some of you may not. Texas jury charge practice favors broad form submission, meaning, was the defendant negligent? Did it approximately cause the damage? Answer yes or no. It may be that there are ten different negligence theories, but there’s one single question. That’s been the default under the Texas rules.
That created some problems because what do you do if a defendant is faced with ten separate grounds for negligence, but there’s no duty on one of them, or there’s no evidence of another? When the jury answers yes, there’s no way to tell what the basis for its negligence finding was. Was it a valid theory? Was it an invalid theory?
Several years ago, the Texas Supreme Court decided a case called Crown Life Insurance versus Casteel. That was the error there. There were multiple theories of liability against an insurance company by the broker. The jury answered yes. They were faced with the question. What do we do in a situation because DTPA theory shouldn’t have gone to the jury because this plaintiff wasn’t a proper plaintiff to bring a DTPA claim?
They looked at it and said, “We can’t tell whether the jury’s yes answer was based on the DTPA theory or some other theory. That was an error, but how do we decide harm? Was that a harmful error?” They looked at it and said, “Texas has two tests for what’s a harmful error. Did it cause the rendition of an improper judgment? Did the error probably prevent the appellant from presenting its case on appeal?”
They said, “This type of error is the second type. It’s a harmful error because we don’t know. We can’t tell, and Texas rules don’t permit us to go into the jury room and figure out what basis the jury granted or based its verdict on. We’re going to say that this is a harmful error because it prevents the person who’s appealing an adverse verdict from presenting their case to us. There’s no way to know. There’s no way for them to show us whether or not it led to the improper verdict. If you do this, we’re going to find harm and reverse it for a new trial without the bad claim.”
They warn the parties. They’re like, “There’s a way to fix this. You can do it by breaking it into separate questions for each theory. If you’re the plaintiff, understand that the risk is on you. If you decide to submit a theory that’s questionable either legally or based on no evidence, you run the risk that we may send it back for a new trial without that claim after all this goes down.”
That was the lay of the land under Casteel. The Supreme Court extended it into other arenas, such as damages. If you have a damage question that has multiple elements, and it turns out one of them, like lost profits or lost economic capacity, and is supported by legally sufficient evidence, that’s the same harm or error. We can’t tell where the jury got to their ultimate damage number if it included that. You get a new trial, break it up into separate questions for the different elements, or withdraw questionable claims. Those are the three options. They extended it later to a comparative fault and said, “This applies even when you have one theory of liability case.”
That’s where it was for several years. Most of us appellate lawyers understood that. Our advice a lot of times was to break out these things. If you’re not sure that you have a solid case on whatever it is, give the jury multiple blanks under negligence or give a liability question for each theory. Break out your damage submissions into the different elements of damages and let the jury answer that separately.
At the end of the day, number one, it gives the appellate court a chance to go through and figure out why they did what they did and if that was proper. Number two, the appellate court can render judgment on that, and it doesn’t have to go back for a new trial. It’s for both sides’ benefit in terms of efficiency and not having to go all the way through an appeal only to go back and retry the case.
Let me ask a question. I know you’ve looked at all these cases to prepare your paper. Do you get the sense that there was some strategic decision going on with the submitting party as to why they didn’t want to break out theories? Let’s use Casteel as the prime example. It was inviting trouble to submit two liability theories in one question. I haven’t looked at that case in a while. Why on earth would there have been a charge submitted in the first place with that error? There are so many errors that we now refer to them as Casteel Error.
This is purely anecdotal, but I know you and I have worked with lawyers on both sides of the bar in advising him on jury charge stuff. I’m going to paint with a broad brush here, but I feel like the general perspective of a lot of plaintiff’s lawyers is less blanks are better for us. The general view of defense lawyers is more blanks are better for us in terms of appealing a case that we think is going to go up on appeal. From a high 30,000-foot view, that does make sense.
If you’re the plaintiff, you want a broad jury answer that then gives you the wiggle room to argue a whole lot of things as to what could have supported it. We put on evidence of a range of damages. This is within the range of damages close enough. If you’re the defendant, you want more specificity. You can say, “There’s a range of damages, but let’s talk about lost profits. It’s specifically this. This analysis was bad for this reason.” That has been the prevailing sense I’ve gotten for the years I’ve been doing this. Do you disagree?
No, I don’t. The one thing that strikes me in that scenario is even after a jury verdict, there’s still a fairly high probability of settlement on appeal. If I’m the plaintiff’s lawyer, I’m thinking, “I’m going to go pop them for whatever theory I can. We’re going to work on getting it resolved after the fact.” That strategy runs into a buzz saw when you’ve got somebody from an insurance company in Crown Life, where they’re thinking, “No, we can’t have this. This can’t be the law.” They may pick up a case and say, “We’re going to make some law out of this.”
That’s the only thing because if these plaintiff’s lawyers were to come to me or you, we would’ve said, “No, don’t do that because you’re buying trouble to submit one single question on liability with multiple theories.” It’s always hindsight. You don’t always know what the motivation is. It could have been something to do with the trial judge the way that they like to submit jury charges. There are a lot of factors that could go into the reasons why this was the way it was. I was curious about if you’d seen any overall pattern in your practice or in reading the cases that suggested the strategy that might have led to this.
I don’t. Smart plaintiffs’ lawyers know the odds are in their favor on that. Few cases get tried, and of the ones that get tried, even fewer get appealed. If you get a big verdict, the numbers are on your side that it may not go all the way through appeal. There is some reasoning behind that. Different parties feel differently about the strength of their case.
You and I have both seen a case where we’ve got some appellate support that suggests we have a valid claim for whatever it is based on our evidence. At the end of the day, an appellate court disagrees, and you’re left holding the bag, even though you thought, “I’ve got this great case that is good authority for me that says we’re right on all this.” Some appellate court says, “Not in this scenario.”
You explain the risks to your trial lawyers and say, “We’ve got this case. We could rake it out, but if you feel strongly about this, we feel like we are okay. At the end of the day, the appellate court says, “Kidding, no.” Todd is laughing because he’s been in the same place any appellate lawyer reading this has been. I don’t even think it’s overconfidence. It’s appropriate confidence, and you will find out later. No.
It’s one of the reasons why I typically advise clients. Assuming that the court follows the law as it is, you always have to hedge. That’s good to hear and helpful for me to think about in terms of setting up this overall discussion. You mentioned that, from Casteel, we saw the Supreme Court keep the law developed around that one scenario to involve several others. Broad-form damages questions were the next.
You mentioned the test for harm. Appearing into the jury room to figure out what the jury was thinking is one of the most difficult tasks we have to do as appellate lawyers. The Supreme Court tried to set up some rules that would allow appellate courts to determine when this situation is going to wind up being reversible. Do you want to talk more about how the law developed on that?
You mentioned damages. There was a case called Harris County v. Smith that came a couple of years after Casteel. It was one where you had a single damage question with multiple elements. One of which was lost earning capacity. It went to the Supreme Court, which looked at it and said, “There’s no evidence of lost earning capacity. We don’t know whether any of the jury’s damage awards, including numbers for that. Because we can’t tell, this is another scenario where we’ve got Casteel harm. We’re going to send it back. You need to have a new trial without losing earning capacity as part of it.”
The court put in the same caveat as before. To be clear, you could have avoided this if you had separate blanks for each damaged element. They were beating this drum to start with. A few years later, a case called Romero v. KPH Consolidation came out. That was one where they had two liability theories. They took the court’s advice from Casteel and had two different blanks. Here are the liability theories.
They had only one proportionate responsibility question, which, in Texas, any tort theory gets a proportionate comparative fault question. They decided to have one that was based on a finding of either liability. The Supreme Court said, “We’ve got the same problem here because there was no evidence to support one of these theories, and we can’t tell how the jury apportioned falls.” They went further in Romero and said, “We’re sure we had the jury not been able to consider this invalid theory. They would’ve apportioned it differently. We’re going to send that back again for a new trial.”
They kept going down that road and said the same thing. They said, “The real problem here isn’t that you needed two questions for proportionate fault. It’s that the jury got a bad liability theory. They put what was their most clear statement. They’re like, “If you’re the person submitting these claims, the risk of the new trial is on you. You can do one of three things. You can do nothing and take the risk. You can ask separate questions or don’t submit a questionable claim. Submit the claim that you think is good.
That was a case where the trial court, when the defendant objected, said, “I’ll give you two proportionate responsibility questions.” The defendant said, “No, we don’t want that. We want a single proportionate responsibility question. Don’t submit this other theory.” The Supreme Court said, “That preserved us. The fact that he offered you two don’t get you out of the problem you’ve created here because you shouldn’t have submitted this other theory in the first place.”
This is what Todd and I were talking about. The risk of the new trial is a tricky thing here. If you feel like you’ve got a good or a legally valid claim for whatever reason, you have to do some risk-weighing between trial counsel and appellate counsel and figure it out. Sometimes, the risk is low from the perspective of whoever it is because you feel like, “I’ve got evidence. It’s supported.” It may turn out later that an appellate court disagrees with you.
We’ve talked about a lot about strategic issue selection and appellate briefs. Most of the time, plaintiffs and the defense will plead every defense under the sun. Even on the surface, it seems like they wouldn’t apply. At the end of the day, they are not submitting half of what either side is pleaded, maybe even less.
It does sound to me that their trial lawyers would rather have to deal with these kinds of issues after submitting a bad theory. One possible remedy for this is built into the three choices that the Supreme Court offered. Pick the theories that are the strongest and submit those. As a practical matter, if you don’t win on negligence, are you going to win on malicious credentialing? Do you want this case to be a malicious credentialing claim? How many malicious credentialing cases or opinions from courts of appeals in the Supreme Court even talk about or address and decide those kinds of claims?
It’s all a big strategy decision, but it is one thing that plaintiff’s lawyers or any lawyer, because it applies to defenses too, would be well advised to do is, if you’ve got one claim that’s the claim you’ve been building your case around, and you’ve got one that’s questionable on the law, this may be the time to think about following the Supreme Court’s advice and discarding the one that can only lead to trouble on appeal and you’re not going to win the case on anyway.
New cutting-edge tort theories that maybe aren’t completely recognized are the ones you need to consider because unless the Texas Supreme Court has blessed it, it is hard these days to get the court to accept a new tort theory. If you have some disagreement between intermediate courts of appeals and the Texas Supreme Court hasn’t signed on, think hard.
The flip side of it is you don’t necessarily want to discourage development in the law. The Supreme Court has told you how to do this. If you don’t want to discard the theory, make sure your charge is set up so it doesn’t lead to Casteel error anywhere. That may whittle away at the broad form submission rule, which is at the root of all these problems. If you feel strongly that this is a theory that ought to be recognized, handle your charge accordingly and set it up where the Supreme Court may not recognize your preferred theory but can at least affirm your judgment if you’re a plaintiff on another ground.
That is the bottom line. The advice that you, me, and all appellate lawyers give is, if you’re worried about this or there are questions, break it out because that is simple, and it does give the jury more blanks and can lead to some unwieldy charges. At the end of the day, it gets the job done. It does give the Court of Appeals or the Supreme Court the ability to affirm or render judgment so you do not have to go back for a new trial.
Continuing where the law went, the Supreme Court looked at cases where parties would submit multiple claims and withdraw that claim or there was some defect. The defendants caught on and started saying, “We’re going to object, but also maybe give the jury an instruction not to consider exclaim because of whatever reason, no evidence or legal invalidity. The Supreme Court, in those cases, kept saying, “That’s what we’re talking about here. The same thing that if the jury is allowed to consider conduct or claims that aren’t supported by law or evidence, even if it’s a single theory of liability, and the defendant has asked for some limiting instruction, we’re back to Casteel type harm again because we can’t tell.”
That’s where the law was after several years. For things like inferential rebuttal instructions, acts of God, and unavoidable accidents, the court had said that doesn’t trigger Casteel harm if those were improperly given. When you are asking questions about liability, damages, or proportionate fault, there are some cases out there even about exemplary damages that say, “When you start mixing these theories together that are valid or invalid into a single question, those all trigger this harm under the second part of the rule that you can’t properly present your case on appeal. That’s a harmful error we’re going to reverse.”
The no-knows-where valid, invalid liability theories, don’t mix them. Valid, invalid damage elements, don’t mix them. Don’t run multiple liability theories into a single proportion of fault, potentially single damages, or single exemplary damages. If a defendant objects and provides a limiting instruction on some unsupported claim, don’t refuse that. That’s where we thought it was. That’s how everyone approached it. The Supreme Court said, “Invalid, don’t mix invalid liability theories.” Based on what the case law meant, we all assumed it was both legally invalid and invalid because it was unsupported by any evidence.
Cut to 2023, there was a case called Horton v. Kansas City Railway that went to the Texas Supreme Court. It was a sad case where it was a train collision with a car at a crossing, and the woman in the car passed away from her injuries. I can’t remember her heirs or wrongful death statutory defendants. They brought two different types of claims. The first was that the continued negligent maintenance of the crossing by the railroad created what was called a humped crossing. Meaning it was difficult to get across. There was negligence because a yield sign was supposed to be by the crossing, but it wasn’t there for whatever reason.
The jury found negligence for both the plaintiff and the defendant and split fault 50/50 between them. It went up to the Court of Appeals, which said that the hump crossing claim was preempted by Federal law. There are a couple of different Federal statutes that preempt certain claims against railroads based on railroad transportation and safety. They said, “Because that was preempted, and you only asked one question, that’s a Casteel error. It’s going to require a new trial because we can’t tell if the jury found negligence based on the humps crossing or based on the missing yield sign.”
The Supreme Court took the case, flipped the liability determination, and said, “Federal law doesn’t preempt the humped crossing claim, but there’s no evidence to support the yield sign claim. That is a Casteel harm. It still requires a new trial for the opposite reasons as the Court of Appeals.” That seems straightforward and in line with all the other Casteel cases we’d ever seen. If you submit a theory that’s not supported by any evidence and there’s a broad form submission with one blank, you get a new trial.
In 2023, both sides were moved for rehearing. This is interesting. I don’t know that I’ve seen them do this, but it granted rehearing for Horton, but it denied Kansas City Southern’s rehearing motion, which, if it grants rehearing, it grants it. They asked specifically for more briefing on the Casteel issues in response to Horton’s motion. A lot of appellate lawyers took note of that and said, “What’s going on?”
This gets to what Todd was talking about in the intro. I was asked to submit some ideas for the advanced civil trial CLE. One of them was about Casteel because I thought, “It’s interesting that they branded rehearing in this Horton case. I’m curious what they’re going to say.” I felt like, after several years, Casteel was well settled in terms of how it applied. It’s a case that is interesting. It could bring about a refresher paper for people who haven’t looked at this, as well as for me.
They took it. I was preparing my paper for this and getting ready to do my PowerPoint for the presentation. In the last week of June 2024, when the Supreme Court finally issued and cleared its argued cases docket, which I figured would include this rehearing, they came out with a new version of Horton that completely changed Casteel. It also changed my paper and my corresponding PowerPoint a week before everything was due.
In the new Horton, which came out on June 30th, 2024, the Supreme Court still kept the liability thing the way that it was and said, “The hump crossing claim was okay. Yield sign was unsupported by evidence.” They said, “We’re going to change the way that Casteel applies in Texas going forward.” It used to be that if you had a mixed question under Casteel, that in and of itself was a harmful error.
There are cases from the Supreme Court that call it presumed harm under Casteel. I think that’s a little bit of a misnomer. It is actual harm. The actual harm is you can’t properly present your case to the Court of Appeals. They called it presumed harm, which I get what they’re saying because you didn’t have to show more than you had this mixed question, which makes it impossible to do. They say that even in Casteel cases, it’s a rebuttable presumption of harm. The party that prevailed in the trial can show it didn’t prevent that party from presenting the appeal.
What that means at this point, I don’t know. From the language it used, the court was saying is that if you can look at the entire record as the party who won at trial and demonstrate that the jury probably didn’t rely on the bad theory, that might work. We don’t know what that looks like. If you look at how it came out in Horton, the court said, “With this theory about the no-yield sign, the plaintiff and the witnesses didn’t talk about it much. They spent their time on the hump crossing claim. From that, we can infer that they didn’t rely on the yield sign.”
That is what they mean by rebuttable. They go on. We’ll get to this in a second to say, “Horton is not a Casteel case.” That must be what that looks like. If you can articulate from the record, here’s why we don’t think the jury was influenced, which to me seems to turn the whole thing on its head. The whole point was we can’t decide that. Who knows. If you’ve ever talked to juries after a trial, the things that you think they would be interested in and focused on so often or not at all, as well as why they decided what they decided, are fascinating. What do you think, Todd?
I like the way you laid out the difference between the Casteel error and the Horton test. I’ve seen that language presumed harm in these opinions over and over again. It comes down to the appellant to attack a jury charge. Any other issue is required to show that the error probably resulted in an improper judgment. There was no way to do that in true Casteel cases. The case law excused the appellants in that situation from having to show harm.
The language is tricky because we see presumed harm in those cases, and now we have a rebuttable presumption of harm. The difference is the error before was harmful. There was no way to rebut it. Now we’ve got this rebuttable presumption that allows the party who wants to hold on to what the jury did. It’s not going behind the verdict in a sense.
We’re not talking about a jury misconduct situation or outside influence. What can you argue within the four corners of the record that would allow the Court of Appeals to say, “They’ve rebutted the presumption of harm.” Some of those grounds, the ones that are listed in the case, seem speculative, and it would be difficult to say that that’s enough to overcome a presumption of harm. That’s over enough to rebut it.
You covered some of this in your paper, but what’s the standard for rebutting the presumption? How much do you have to show who weighs that? Is it a factual or evidentiary sufficiency analysis? What is it? This is a fascinating case that is going to impact jury charge practice in those cases in which there are multiple liability theories or damages theories, where you have what’s traditionally been set up as a Casteel problem, and how that’s dealt with in the appellate court.
The court says, “It’s rebuttable.” They also said, “Even if it’s rebutted and it’s not a Casteel situation, you can still show under the broader test for harm that, based on the whole record, this error caused the rendition of an improper judgment.” It is the flip side of what we talked about. The party who lost a trial is saying, “Look at the whole record. It’s clear from this that this improper theory influenced the jury.” I’m not sure what this looks like. It’s some quantification. They spent this much time and this many witnesses, or they had an expert, and this expert only testified about that. We don’t know. This is a big how question mark.
How is that not weighing evidence which is outside the Supreme Court’s jurisdiction?
The problem with this new approach is we’re now going to argue about what was in the record with the assumption that the jury did or didn’t look at it. We have this second prong of the harm test and Casteel harm because you can’t do that. There are rules in the Texas Rules of Evidence that specifically state that you cannot offer juror testimony on what they talked about in the jury room. There’s a lot of good reasons for that. You’re trying to do everything but that, and I don’t know how you come to that, but this is where we’re going.
The other thing that they said that they had never specifically said, but had been inferred by those of us who do this, is this applies, whether it’s a single theory of liability case, multiple liability cases, Casteel applies anywhere where a jury charge lets the jury reach a finding based on a legally invalid theory or allegation. That one is not so much of a surprise. It is good to see them finally say that outright.
Do you think that backtracks on inferential rebuttals?
I don’t know if it does because I don’t think they consider inferential rebuttals a claim theory or allegation. They think of it as an instruction. I don’t know. We’ll see.
If you’ve got an invalid defense, I’m not sure I fully grasp the difference.
I don’t know that I do either. The way that I read those cases is an unavoidable accident. Those types of things aren’t a defense in the sense that you have the burden of proof. Those are the startups here. The biggest change for Casteel is that they say it is an invalid theory. For everyone, before Horton meant either legally invalid, there’s some legal infirmity of the claim, or not supported by legally sufficient evidence.” Horton says, “That part is not right anymore. Because it is not supported by evidence doesn’t mean it’s legally invalid for Casteel purposes.”
This is a huge change because there are a bunch of cases. There are cases called Benge v Williams, Smith v. Harris County, Romero v. KPH Consolidation, Morrison v. Texas Commission for Human Rights, and another case called Interest of JW. In the last several years, those are all cases from the Texas Supreme Court where they applied Casteel solely because legally sufficient evidence did not support something. The opinion doesn’t address that fact. They brush past it and say, “This is what it’s supposed to be.”
This is a huge sea change. I don’t know where it goes. I’ll talk about that more in a minute. That is the big thing. A jury can disregard claims unsupported by evidence, but they can’t disregard legally and valid claims because they might not know that. I don’t know that I buy that reasoning. I understand where the court is coming from, but if a jury has been told, you can consider this by a court’s charge, and the parties have argued it, and they’ve heard what they believe is evidence on it, whether or not practitioners and appellate courts may think so, I don’t know that’s true. I don’t know that I necessarily believe this justification personally based on years of practice.
If you have an expert witness who, it turns out, has an unreliable testimony that has no evidence to tell them this based on my qualifications, I don’t think a jury can disregard that necessarily. They can or can’t, but I don’t think it’s clear to me that they’re going to disregard that because there turns out to be no evidence down the appellate path line somewhere.
That’s the basis for this new holding. I tend to disagree with it because what practitioners, judges, and particularly the appellate judges may conclude is no evidence or legally insufficient evidence for legal reasons is not necessarily obvious to a jury because it is something technical. It could be a reliability issue in an expert opinion. It could be a failure to properly authenticate. There are all sorts of problems that deprive things of legal. It could be a conclusory testimony. A trial judge may not strike conclusory testimony, and the appellate court may later determine it’s conclusory and, therefore, no evidence. If a jury has heard it, how are they to know? We’re not allowed to consider that because it’s conclusory.
A lot of lawyers in courts don’t know. The reliability thing is that the jury is supposed to know what’s and what’s passable for an expert’s opinion. I do not get that at all. The Supreme Court has set the stage for folks like you and me to bring more of these sorts of issues up on appeal to try and flesh this out.
The court says that if it’s simply unsupported by evidence, it’s no longer a Casteel harm error under the prong that says you can’t properly present your case on appeal. You have a look at the entire record to determine the potential harm. They don’t tell us what that looks like, but alluding to what I talked about earlier, the way they applied it here is the theory wasn’t mentioned much at trial. There wasn’t enough harm.
You weigh the amount of trial time that they spent on the particular theory that you think is not supported by evidence. The state of the law after Horton is that because something is unsupported by evidence doesn’t make it invalid for Casteel purposes. You have to show harm from the entire record, and it caused the rendition of an improper judgment.
Where do we go from here? To your point, Todd, we don’t know. I have some ideas. For one thing, the way that you used to preserve the Casteel error, for the most part, was object to no evidence to submit a particular theory to the jury. I don’t think that works anymore. You have to object to why you think a theory is legally invalid.
If you think it’s unsupported by evidence, go ahead and make that objection. I don’t think that that by itself is going to trigger Casteel when that used to be enough to do all of those things. You also didn’t necessarily have to submit separate questions to preserve Casteel error. If something is unsupported by evidence, until we get some guidance from appellate courts, the better practice is going to be to submit separate questions both as the plaintiff and the defendant. I’m not thinking on one side or the other. If we don’t know, no matter which way you are, if you have a theory that’s somewhat questionable, I would submit multiple questions.
The thing about all of this is it may be much more than doing about nothing because you can fix these problems, whether it’s Casteel harm or not, by submitting multiple questions and different blanks. The better practice when something is unsupported by evidence is to suggest that. The law said you didn’t have to mention Casteel specifically to invoke it. That’s still true, but if you think this is a Casteel issue, go ahead and do it. If you don’t know whether it’s invalid or unsupported by evidence, object to both to the extent you can explain why it’s legally invalid.
Another thing I mentioned was that there were some of those cases that the Supreme Court decided on, and that said, “The defendants had submitted a proposed instruction to tell the jury not to consider something.” Try that. If you’ve got a case where you have a theory that you think is unsupported by the evidence and you’re the defendant, give the court a proposed instruction to go along with whatever their liability question is that says you’re instructed not to consider X. If the court doesn’t give it to you, I don’t know that creates a Casteel issue, but it’s potentially another point of charge error that may get you to harm in a different way that’s no longer under the Casteel umbrella.
Think about that. Beef up your motion for a new trial based on harm under the overall record. Now that the presumed harm is not there. Make those showings both on the directed verdict to the extent you can and motion for a new trial. Explain, in the record, why you think the jury will or did consider the unsupported theory. Talk about the number of witnesses, the testimony, the exhibits, and the argument. Start laying those points in the trial court because you didn’t have to do it before, but do it now.
I’ve said this many times on our show, but I’m trying to envision a trial lawyer getting ready to make his or her closing argument to the jury trying to run through this analysis. It results in an even greater need. The case has to call for it, but there’s an even greater need to have someone else handling the charge and all the simplest cases, like a car wreck case. You’re probably not going to see this.
If you’ve got a commercial case, let’s dovetail this with what we’ve got going on elsewhere in our state court system, with the business courts coming online and large dollar values at stake. This is difficult for people who focus on it to understand. When you’ve got $5 million or $10 million at stake, that would seem like the prime opportunity to have somebody else working on the charge.
Have somebody else to bounce ideas off of because Todd and I have both done this for a long time. None of us know what it’s going to look like going forward. We’re all going to have to figure out the best strategies to preserve these things. My high-level takeaway is to figure out what you can do in your charge practice to make it possible for the Court of Appeals to render judgment.
That would be the approach to take from either side to avoid a new trial. If you’ve got a $5 million or $10 million claim that’s getting tried by a jury, it’s an expensive and time-consuming trial. It ties up your clients and their business in a lot of different ways. If you can avoid having to do that, it’s so much better for everybody and the system. There are ways to do it.
What is left under Casteel now? I don’t know, but what invalid means is truly legally invalid. It’s going to be things like preempted claims and claims that are jurisdictionally barred. I mentioned the Morrison case. That was one where somebody brought some retaliation termination claims and included one that had not been submitted in their EEOC letter. It was jurisdictionally barred. Legal impediments are negligence cases where you submit a theory for which there’s no duty and defamation claims where maybe it’s true or privileged.
Some of the tricky ones going forward are going to be things like affirmative defenses. For example, you have a claim that could be a valid claim supported by evidence, but it’s barred by the statute of limitations. Is that legally invalid, especially when you have to ask the jury a statute of limitations question? I don’t know. There’s an argument that it is if the jury finds that it’s barred based on whatever date it was discovered. That is an invalid contract or fraudulent inducement. There is a whole new world of things out there that creative lawyers are going to be able to argue and try and figure out what sticks.
As we look ahead, trial dockets are busy these days. This is something that trial lawyers need to be aware of. Appellate lawyers need to be aware of this. We’ve got so much change going on in our court system. September 1, 2024 is going to be that magical date that business courts and the 15th Court of Appeals come online. It’s exciting and nerve-wracking at the same time. The whole thing takes me aback in terms of so much uncertainty.
We’re looking forward to helping sort it out. It’s going to be interesting. A lot of uncertainty for something was well settled for a few decades.
The takeaway is to object early and often. Over-preserve until we have some cases. I’m not sure that cases out of the intermediate courts are going to be something I would rely on. We joke around about telling clients that if they follow the law, this is going to be the outcome, but what is the law? We don’t know when it comes to preservation.
We’ve always joked in jury charge practice. It’s better to over-preserve, but this is a situation where it is 100% true. It goes back to the point we were talking about earlier in the discussion. You need to be sure that if you’re going to submit theories to the jury and do it in a way that potentially exposes or creates Casteel error, you need to be sure of what you’re doing and whether it’s worth the risk. You’ve already pointed out. In this situation, if you make a mistake or the trial court submits it in a way that is erroneous, you’re the lucky winner of a new trial.
One thing to remember, and here’s your ethics credit for this, is to talk to your client about this because we used to be able to say with a little bit more certainty. The risk of a new trial is low or high here. I don’t think we can anymore. Todd used the insurance company. There are a lot of insurance companies that go to trial all the time. They’re not afraid of it.
There are a lot of businesses that have one interaction with the civil justice system, and the idea of a new trial is the absolute last thing that they want. You need to have those frank discussions. You always should have had them. It’s more important now because we don’t know what it’s going to be anymore. Make sure they understand the risks, drawbacks, and benefits depending on what approach you take.
We’ll plan on dropping a copy of the paper in our show notes. I’ll refer back to anyone who wants to watch Jody’s presentation on this. It’ll be available in Texas Bar CLE. Jody, was there anything more about this topic that we need to cover?
This covers it until we get more information. If we get something that’s useful, we’ll come back on and update it here.
We haven’t done a whole lot of breaking down a case and definite trends in the law focused on legal issues. We may wind up doing more of this thing because it’s fun, and we’re doing it anyway in our practices. It might give readers different content than what we’ve done up to now. Let us know if that’s something that you all want to read. If there’s something specific particularly, that would be helpful to let us know.
You’re going to read more from us about the new courts that come online. Todd, while we’re on here, do you want to give a shameless plug for your business courts course?
I am the Course Director for Your First Handling of The First or Next Business Court Case, which is going to take place on December 12th, 2024, here in Austin. We’ve already gotten commitments from all three of the 15th Court of Appeals Justices to come and be a part of that program. We are anticipating that we’re going to have a good number of business court judges from across the state come and participate either as presenters directly or on a panel of business court judges.
We should also say while we’re on that topic that many of our former guests on this show are now in the 15th quarter, which will be September 1st, 2024. We got two out of the three. These are previous guests and folks who have been appointed to the business court, including our good friend Jerry Bullard, who, my first question, when I heard that he’d gotten appointed, was, who’s going to do the legislative update?
It is a question he’s getting a lot.
I bet he’s getting that on a daily basis. We have not started promoting The First Handling of Your First or Next Business Court Case program yet because we’re still getting the presenters lined up. You can mark your calendar for that date, and we’ll talk about it some more as we get closer to the top. Thanks for bringing that up.
The message here is to stay tuned. We’ll be talking more about this topic and some of the others we’ve been covering. Jody, your paper is well done. If you want to understand where we were and how we got here, it’s a great place to start. You line out the questions going forward. I’d commend it to anybody who’s reading.
I appreciate it.
We’re going to sign off. Everyone, stay safe, and we’ll talk to you next time.
See you next time.
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