federal court trial procedure - texasbarcle

FEDERAL COURT TRIAL PROCEDURE

BARRY R. BELL Carrington, Coleman, Sloman & Blumenthal, L.L.P.

901 Main Street, Suite 5500 Dallas, Texas 75202

[email protected]

State Bar of Texas FEDERAL COURT PRACTICE 2009

May 15, 2009 Dallas

CHAPTER 11

BARRY R. BELL Carrington, Coleman, Sloman & Blumenthal, L.L.P.

901 Main Street, Suite 5500 Dallas, Texas 75202

214-855-3068 (Phone) 214-855-1333 (Fax) [email protected]

Mr. Bell is a partner at Carrington Coleman in business litigation. His practice is varied, but focuses on complex litigation involving antitrust and competition law, as well as the insurance and securities industries. Mr. Bell has represented major insurance industry clients in premium litigation and class actions challenging various industry practices. In the securities area, Mr. Bell has handled matters ranging from class-action securities fraud lawsuits to broker-customer arbitrations. In antitrust, unfair competition, trademark and consumer protection arenas, Mr. Bell has represented diverse clients in a variety of disputes at both the advice and litigation stages. Mr. Bell's litigation experience also includes disputes concerning professional malpractice, oil and gas contracts, patents, trademarks, copyrights, software development and licensing agreements, franchise agreements, brokerage fees, employment issues, and a wide assortment of contract claims and business torts.

EDUCATION

University of Virginia J.D., 1986 Order of the Coif; Editorial Board, Virginia Law Review, 1984-1986 University of Virginia Ph.D., English, 1977 Rice University B.A., cum laude, 1971

JUDICIAL CLERKSHIP

The Honorable James Dickson Phillips, Jr., Fourth Circuit Court of Appeals, 1986-87

PROFESSIONAL ASSOCIATIONS AND AFFILIATIONS

American Bar Association; State Bar of Texas; Dallas Bar Association American Bar Association and State Bar Association, Litigation and Antitrust Sections

RECENT SPEECHES/PUBLICATIONS

“What to Tell a Panicked Client about Class Actions,” ABA Commercial & Business Litigation Committee Newsletter (Winter 2009)

Speaker, Federal Court Trial Procedure, Texas Bar CLE on Federal Court Practice, May 2008. Panelist, The Subprime Lending Crisis: What Every Lawyer Needs to Know, Texas Bar CLE Webcast, January

2008.

Federal Court Trial Procedure Chapter 11

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TABLE OF CONTENTS

I. INTRODUCTION: FEDERAL COURT TRIALS VS. STATE COURT TRIALS .............................................. 1

II. THE FINAL PRETRIAL ORDER.......................................................................................................................... 1 1. Rule 26(a)(3) ................................................................................................................................................... 1 2. Rule 16 (in general) ......................................................................................................................................... 1 3. Rule 16(e) ........................................................................................................................................................ 2

III. STANDARD CONTENTS OF THE FINAL PRETRIAL ORDER ....................................................................... 2 1. Contentions of the Parties................................................................................................................................ 2 2. Stipulations...................................................................................................................................................... 2 3. Contested Issues of Fact and Law ................................................................................................................... 2 4. Witnesses and Exhibits.................................................................................................................................... 3

IV. OTHER COMMON FEATURES OF THE FINAL PTO....................................................................................... 3 1. Proposed Voir Dire Questions......................................................................................................................... 3 2. The Proposed Charge (with instructions, definitions, and special interrogatories) ......................................... 3 3. Motions in Limine/Motions to Exclude or Limit Testimony .......................................................................... 4 4. And Whatever Else the Judge Tells You to Include........................................................................................ 4

V. A FEW SPECIAL ISSUES..................................................................................................................................... 5 1. Federal Juries................................................................................................................................................... 5 2. Use of Deposition Testimony.......................................................................................................................... 5 3. Trial Subpoenas............................................................................................................................................... 6 4. The Scope of Cross Examination .................................................................................................................... 6 5. Judgment as a Matter of Law .......................................................................................................................... 6 6. Entry of Judgment ........................................................................................................................................... 8 7. Motion for New Trial, or to Alter or Amend Judgment .................................................................................. 8

VI. FINAL NOTE: KNOW YOUR TRIAL JUDGE ................................................................................................... 9 APPENDIX A............................................................................................................................................................... 11 APPENDIX B ............................................................................................................................................................... 13 APPENDIX C ............................................................................................................................................................... 17 APPENDIX D............................................................................................................................................................... 19


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FEDERAL COURT TRIAL PROCEDURE I. INTRODUCTION: FEDERAL COURT

TRIALS VS. STATE COURT TRIALS If you were led blindfolded into a strange Texas

courtroom during trial, it might take you a while to figure out whether you were in a state or federal court. To begin with, all judges enjoy broad and inherent power to control how trials proceed in their courtrooms. In addition, many state court judges learned how to try lawsuits in federal court before they went on the bench, and many of our federal judges were once state court judges. As a consequence, you can’t tell the difference between state and federal trials from the formality or informality of the process. You can’t tell from the lawyer’s dance as she introduces exhibits or lays the foundation for testimony. You can’t even tell with any certainty from the voir dire or the charge conference.

That said, federal court final pretrial conferences and federal court trials differ from those in Texas state court in two ways.

First, very generally and with many exceptions and qualifications, the federal court trial process is more tightly managed and uniform. The process has been shaped by a long and concerted effort of the federal rule makers and the Federal Judicial Conference to promote uniformity in the management of the federal courts, and also by efforts of the judges in each District as they have devised often detailed Local Rules. [Although much altered over time, the FRCP have been around for over 70 years.]

Second, there are a few very specific differences between the Texas and federal rules that concern trial practice, and they can be a trap for the unwary.

And so, even if you are an experienced state court trial lawyer, you need to do three things before you try a case in federal court:

1. Study the FRCP, and, if you usually practice

in state court, make a checklist of the differences between federal and state rules.

2. Study the Local Rules to see what they add to the FRCP.

3. Find out everything you can about your judge, and study any Standing Orders he has added to the Local Rules.

II. THE FINAL PRETRIAL ORDER

The linchpin of federal court trial practice is the Final PTO. Rule 26(a)(3) and Rule 16 shape the Final

PTO, which in turn controls what happens during a federal trial.

1. Rule 26(a)(3)

Rule 26(a)(3) requires certain pretrial disclosures concerning witnesses and documents. Specifically, it requires the parties to identify the basic evidence they will present, or may present, at trial, including live witnesses, deposition testimony and documents.

Evidence omitted from the pretrial disclosures is presumptively excluded at trial. See Rule 37(c)(1). Conversely, untimely objections to the evidence identified by an opposing party may also be waived.

Rule 26(a)(3) contains default rules on the timing of disclosures and the timing of objections. Unless the court rules otherwise, disclosures are due 30 days before trial and certain specified objections are then due 14 days after the disclosures. Local rules or judge-specific rules often establish different timing and additional requirements.

2. Rule 16 (in general)

Rule 16 broadly addresses scheduling and pretrial conferences, including specifically the Final Pretrial Conference. Rule 16 embodies the principle that federal judges should actively manage the pretrial process as well as the trial itself.

Compare: TRCP 166, labeled “Pretrial Conference,” includes a number of qualifications. “In an appropriate action” the judge “may in its discretion” require a pretrial conference at which a laundry list of items may be considered, including a catch-all “[s]uch other matters as may aid in the disposition of the action.” A general—but not universal—difference between state and federal practice is that federal courts have a more uniformly structured approach to pretrial conferences—buttressed by the Local Rules of each federal district.

Ordinarily, the parties have a Scheduling Order early in the case, and the Scheduling Order typically sets the date for a final pretrial conference. Often the parties will have an initial case management conference and other interim conferences before the final pretrial conference. Regardless of the terminology, each of these case management conferences or status conferences is a “pretrial conference” and an Order entered after any of them will be a Pretrial Order that will “control[] the course of the action unless the court modifies it.” Rule 16(d). While the court “should” issue an order reciting the action taken after each pretrial conference, the court is not required to do so. Gutierrez De Martinez v. Lamagno, 515 U.S. 417 (1995).

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A “pretrial conference” can address a wide variety of matters. Rule 16(c)(2) lists sixteen different “matters for consideration” at the pretrial conference, including the catch-all “facilitating in other ways the just, speedy, and inexpensive disposition of the action.” Many of the “matters of consideration” listed in Rule 16(c)(2) may be addressed long before the final pretrial conference, for example at an initial or interim case management conference.

A “final” pretrial conference shortly before trial is not mandatory, but almost every federal judge requires one in almost every kind of mainstream civil case.

The final PTO requires the parties to put their cards on the table before the trial begins. They must also resolve every dispute they can resolve by agreement, and they can then ask the judge to decide the ones that remain.

3. Rule 16(e)

Rule 26(a)(3) and Rule 16 tend to streamline federal court trials because the final PTO offers a detailed template for the trial. But the trade off is that the final pretrial conference and order requires some very careful thought and homework by the trial attorneys. Why? Because what makes Rule 16 effective as a trial management tool also makes it a trap for the careless.

Rule 16(e) provides: “The court may modify the order issued after a final pretrial conference only to prevent manifest injustice.” This means that “[o]nce the pretrial order is entered, it controls the course and scope of the proceedings…, and if a claim or issue is omitted from the order, it is waived, even if it appeared in the Complaint.” Elvis Presley Enters. v. Capece, 141 F.3d 188, 206 (5th Cir. 1998) (emphasis added).

You still must object if your opponent strays beyond the PTO, but, if you properly object, the final PTO controls and can be modified “only to prevent manifest injustice.” [That is a tough standard and it is the language of the rule itself.] And so the Court’s refusal to modify the final PTO will be reviewed under an abuse of discretion standard.

To show how this works in practice, consider the case cited above. The plaintiff was Elvis Presley Enterprises, which owns Elvis marks and operates Graceland. The defendant opened a Houston nightclub called “The Velvet Elvis.” The nightclub featured a velvet Elvis, as well as Elvis photos and an Elvis bust, and a menu featuring peanut butter and banana sandwiches and a frozen drink called “Love Me Blender.” EPE tried to enjoin the nightclub operator, but the district court decided the nightclub theme was a permissible parody of faddish bars in the 60s. The Fifth Circuit reversed and remanded, holding EPE was entitled to an injunction under the Lanham Act.

The Rule 16 issue arose because EPE appealed the district court’s refusal to order an accounting of defendant’s profits, one of the possible Lanham Act remedies. EPE also appealed the district court’s refusal to award attorney’s fees under the Texas right of publicity statute as well as fees under the Lanham Act.

The Fifth Circuit affirmed the district court on these points, because, regardless of the Complaint or the proof at trial, the claims were not included in the final pretrial order. In the words of the immortal Elvis: “so close, yet so far, from Paradise.”

Compare: TRCP 63 and 66 require the trial court to permit a pleading amendment during trial unless the opposing party objects and presents evidence of surprise or prejudice or shows that the amendment is prejudicial on its face. The decision to permit a trial amendment is reviewed under an abuse of discretion standard. See State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994).

III. STANDARD CONTENTS OF THE FINAL

PRETRIAL ORDER Rule 16 tells you some of the issues you can

address in the Final Pretrial Order. The Local Rules and the judge will tell what issues you must address in the Final Pretrial Order. I have attached the pertinent Local Rules concerning the Final Pretrial Order from each of the Federal districts in Texas.

The Final Pretrial Order will typically address the following topics—some of which are mandatory and some of which are optional.

1. Contentions of the Parties

Your contribution to the “Contentions of the Parties” should be brief and should avoid legalese and overly argumentative language. If you write your contentions in plain English, the Judge may in fact read them aloud to the jury.

2. Stipulations

Stipulations can greatly simplify a trial and prevent needless disagreements and delays. The judge will expect the attorneys to reach sensible stipulations, and you should be prepared for some give and take. As with the “Contentions of the Parties,” you should strive for plain English stipulations because the judge may read them to the jury.

3. Contested Issues of Fact and Law

This is where Rule 16(e) kicks in. List it or lose it.

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4. Witnesses and Exhibits The Witness and Exhibit lists fold Rule 26(a)(3)

into the final PTO. Notice that the form joint pretrial orders provided by the Southern and Eastern Districts require a specific format for the exhibit list. Notice also that the form joint pretrial order provided by the Southern District does not specifically refer to witnesses presented by deposition. Rule 26(a)(3), however, requires parties to separately identify witnesses whose testimony will likely be offered by deposition.

IV. OTHER COMMON FEATURES OF THE

FINAL PTO What else might be included in or with the final

PTO? Sometimes as attachments to the final PTO, and sometimes as separate filings at or near the same time, the parties ordinarily must submit:

1. Proposed Voir Dire Questions

Federal judges enjoy broad discretion over the content of voir dire. Lewis v. Holden, 821 F.2d 291, 294 (5th Cir. 1987). See also Rule 47(a): “The court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper.”

Federal judges typically conduct the voir dire examination themselves. See Hicks v. Mickelson, 835 F.2d 721, 725-26 (8th Cir. 1987) (“Our experience convinces us that the conduct of the voir dire examination by the district court is the most efficient and effective way to assure an impartial jury and even-handed administration of justice.”) Most federal judges do all of the talking but allow the attorneys to submit proposed questions. Some conduct a preliminary voir dire but then allow the attorneys to ask limited follow-up questions. A few allow attorneys to conduct the entire voir dire.

The Final PTO will often solicit proposed voir dire questions. These are questions for the judge to ask, and she may or may not ask them. If you want the judge to use them, make them relevant and non-argumentative.

You should also prepare “supplemental questions” if the judge conducts the basic voir dire. Rule 47(a) requires the judge to ask such supplemental questions as long as he considers them “proper.”

Compare: Federal courts recognize that voir dire implicates the Constitutional guarantee of a fair trial. See, e.g., U.S. v. Orenuga, 430 F.3d 1158, 1162 (D.C.C. 2005) (The Sixth Amendment right to a

jury trial “includes the right to be tried by jurors who are capable of putting aside their personal impressions and opinions and rendering a verdict based solely on the evidence presented in court. [citation omitted] Voir dire is a vehicle for ensuring this right[.]”). Texas courts make the same observation (and add references to the guarantee of the Texas Constitution), but go further in acknowledging a litigant’s “right” to a broad voir dire. See Babcock v. Northwest Memorial Hospital, 767 S.W.2d 705 (Tex. 1989) (the Texas Constitution and statutes guarantee the right to a fair and impartial trial and therefore “[a] broad latitude should be allowed to a litigant during voir dire examination”). See also Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743 (Tex. 2006) (voir dire examination protects the Constitutional right to an impartial jury although trial courts have broad discretion in how it is conducted.) As these cases acknowledge, Texas state court voir dire is ordinarily conducted by the attorneys, and the attorneys enjoy substantial leeway in the questions they ask.

2. The Proposed Charge (with instructions,

definitions, and special interrogatories) The parties may need to attach their proposed

charges to the final PTO, or they may have to file them separately. Even if the PTO requires the parties to submit their proposed charges before the trial begins, they can (and must) submit additional instructions, definitions and special interrogatories if unanticipated proof at trial makes them necessary.

Preparing a charge is one of the very most important tasks related to a trial. You should more-or-less have your charge ready before you begin your final trial preparations (such as designating deposition portions and deciding which exhibits to use); the more carefully you think through the charge in advance the more likely it is that your charge will (a) guide you adequately through your proof at trial and (b) be adopted by the judge.

Rule 49 describes both “special verdicts” and “general verdicts.” A “special verdict” asks discrete questions about each factual issue without asking the jury to decide who wins. The court then examines the “special verdict” answers and decides on their effect. A “general verdict” permits the jury to decide who wins, but may include one or more questions on specific factual issues. “Special Verdicts” are










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generally favored, but trial judges enjoy broad discretion over the choice of verdict forms.

Rule 51 concerns jury instructions. You should prepare a separate jury instruction, with appropriate supporting authority, for each material legal issue. The instructions, of course, must accurately state the law, and they should also relate the law to the evidence in the case.

The trial judge can, but does not have to, use the verbatim jury instructions offered by either party. To help the trial judge and the jury (not to mention your client), you should write your instructions as clearly as possible. Note that the average juror reads at about a 6th grade level, and it is much harder to follow something that is read aloud than it is to read it off a page. (Before you feel too smug, you should know the average graduate of college and professional school reads at about a 10th or 11th grade level.) So work hard to make your instructions as clear as possible. Avoid abstractions and tie the instructions to the facts in the case.

A few words on objections to the Charge. The trial judge will ordinarily convene a charge conference immediately after the close of evidence but before final arguments. The judge will then let the parties know which questions, definitions and instructions she will use. Sometimes, but not always, the judge will select the instructions from those submitted by the parties. The parties then have an opportunity to object to the judge’s instructions.

All objections to the charge must be specific and clear. A proper objection to an improper instruction preserves error. If the trial judge omits a requested instruction, the requesting party must not only properly object but also obtain a ruling on the record.

3. Motions in Limine/Motions to Exclude or Limit

Testimony Rule 16 specifically contemplates using the

pretrial conference to obtain rulings “in advance on the admissibility of evidence,” to avoid “unnecessary proof and cumulative evidence,” and to limit “the use of testimony under Federal Rule of Evidence 702.” Rule 16 (C)-(D). FRE 103 also addresses rulings admitting or excluding evidence “either at or before trial.” FRE 103(c) further states: “In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”

A Motion in Limine can reduce the need for trial objections. Under Rule 46, “[a] formal exception to a ruling or order is unnecessary” and a party need only state its request or objection along with the grounds. At one time, the Fifth Circuit required that any pre-trial

request or objection be renewed during trial even if the judge had already ruled. FRE 103(a), however, was revised in 2000 to add that “[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

Motions in Limine should be tied specifically to the facts of the case. Many judges specifically forbid boilerplate Motions in Limine, and I’m sure no judge likes them. In general, you should limit your Motions in Limine to matters for which a trial objection will not suffice and where, instead, the opposing counsel should be required to approach the bench before asking the offensive question or introducing the offensive evidence. In the Motion in Limine, you must specifically identify the question or evidence you believe would be inadmissible, explain why the question or evidence should be forbidden, and state why you need a ruling before the trial begins.

The final pretrial conference is likely to include an opportunity to argue Motions in Limine. Especially if the lawyers are expected to prepare the final PTO, as is usually the case, they should arrange for a transcript of the conference in order to minimize disagreement later about the Judge’s rulings. When you memorialize the court’s rulings, remember that you need not renew an objection after a pretrial ruling, but a later FRE 103(a) objection is mandatory if the ruling is not “on the record,” or if the court reserves its ruling or makes only a provisional ruling.

Note that you may be able to agree with opposing counsel about many limine motions, but whether the limine order results from agreement or from the judge’s ruling after an oral argument, you must scrupulously comply with the order as entered.

4. AND WHATEVER ELSE THE JUDGE

TELLS YOU TO INCLUDE Each of the Federal Districts in Texas maintains a

website containing both the Local Rules and separate pages for each Judge. Many, but not all, judges publish some special rules for their court on the District website. [In the Western District, there is a Q&A in the form of Frequently Asked Questions.]

The judges often add their own bells and whistles to the final PTO. Judge Hittner in the Southern District requires the parties to submit a short summary of each expert witness’s qualifications. Judge McBryde in the Northern District requires the parties to agree on summaries of deposition testimony to be offered in place of Q&A at trial, and the Final PTO itself must summarize each expert’s opinions. Judge Cummings in the Northern District also requires the parties to use deposition summaries and limits each summary to ten minutes. Many judges specify when and how


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witnesses and exhibits will be identified before trial—either within the final PTO itself or in separate filings.

V. A FEW SPECIAL ISSUES 1. Federal Juries

Federal juries can range between 6 and 12 members, and, unless the parties agree otherwise, their verdict must be unanimous. Rule 48. At least six jurors must return a verdict. Id. Judges will often seat more than six jurors in case some of them must be excused during the trial. [Note: Rule 47 was amended in 1991 to eliminate the provisions for alternate jurors.]

Compare TRCP 292, allowing verdicts rendered by the concurrence of 10 persons on a 12 person jury, or 5 persons on a 6 person jury. Jury size in Texas courts varies, with 12-person juries in district courts and six-person juries in county courts. TRCP 234.

The basic rules governing federal jury selection are set out in the Jury Selection and Service Act, 28 U.S.C. §§ 1861-1871. For example, § 1870 provides that each party receives three peremptory strikes but “[s]everal defendants or several plaintiffs may be considered as a single party for the purposes of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly.” In other words, you probably get three strikes, you may have to share, and you can argue for more.

In order to appeal errors in voir dire, the complaining party must provide a record of the complete voir dire, including any relevant “off the record” bench conferences. Hicks v. Mickelson, 835 F.2d 721, 724 (8th Cir. 1987).

There is no limit to the number of challenges for cause, but the party seeking to strike a prospective juror must demonstrate either that she is unqualified or that she is biased or prejudiced. The “partiality” question is whether the prospective juror can set aside her predispositions and render a verdict based on the evidence presented at trial.

If the court improperly refuses to excuse a juror for cause, the attorney should take the following steps on the record (usually after asking permission to submit additional questions to solidify the grounds for the objection): 1) state the objection and its basis; 2) inform the judge that you will use a peremptory strike on that person that would otherwise remain available for another prospective juror; 3) exercise the peremptory strike as promised, and exhaust all of your available peremptory strikes; and, 4) contest the impartiality of the jury when it is seated by the court. This elaborate process is necessary because it is

unclear whether a refusal to sustain a proper objection for cause is reversible error per se, or whether it is only the loss of a statutorily allotted peremptory challenge that is reversible error per se, or whether reversible error occurs only when the jury as seated is biased or prejudiced. See 9 JAMES WM. MOORE ET AL, MOORE’S FEDERAL PRACTICE § 47.21 (3d ed. 2008).

Jury selection varies significantly from court to court and many of the important details cannot be found in the statutes and rules. The prospective jurors, for example, are drawn from the division in which the trial takes place—and that geographical area may have a very different population mix than the area from which a similarly located state court would draw its jurors. Moreover, prospective jurors are introduced to the judicial process and subject to an initial screening in ways that vary significantly from court to court. And, as noted above, voir dire practice varies from judge to judge. As Moore’s Federal Practice bluntly states: “It is inexcusable to commence a jury trial and not know the procedure the court will follow in jury selection.” Id. § 47.10[3][a].

Before you begin selecting a jury, you should know the answers to the following questions (among many others):

What is the “typical” jury pool for this court? What information will I have about individual prospective jurors before jury selection begins, and when will I receive it? Will the judge permit jury questionnaires, and, if so, with what constraints? What information (including videos or oral presentations) will the prospective jurors receive about the jury process before jury selection begins? What information about the lawsuit will the judge provide the prospective jurors? Assuming the judge conducts voir dire, how long will he take and what questions is he likely to ask? Assuming the judge conducts voir dire, how many and what kind of supplemental questions will he permit? Assuming the attorney conducts voir dire, how much time will the judge allow and what leeway will she permit for “free style” voir dire?

2. Use of Deposition Testimony In federal court, you can use any witness’s

deposition to impeach or contradict his testimony, and




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you can use the deposition of an adverse corporate witness for any purpose. With those two exceptions, though, you generally cannot use deposition testimony at trial unless the witness is “unavailable.” Rule 32. “Unavailable” means dead; more than 100 miles away (unless the absence was procured by the person offering the deposition); age, illness, infirmity or imprisonment; or inability by the person offering the deposition to serve a trial subpoena. There is also an “exceptional circumstances” proviso. The bottom line: don’t plan on using a deposition in lieu of the live testimony of a non-party witness in federal court unless you can show that the witness is “unavailable.”

Compare TRCP 203.6, which allows a deposition to be used for any purpose in the proceeding in which it was taken.

3. Trial Subpoenas

The federal rules concerning trial subpoenas give rise to two issues. First, where can a federal court trial subpoena be served? Second, how far can a witness be compelled to travel in order to appear at trial?

The first question has a fairly simple answer. Under the federal rules, a trial subpoena can be served anywhere within the district of the issuing court, outside the district but within 100 miles of the court, or any place in Texas where, pursuant to state law and rules, a subpoena can be served by a state court of general jurisdiction sitting at the place of trial. See Rule 45(b)(2)(C); 45(c)(3). [Note also that some federal statutes authorize nationwide service.] Under TRCP 176.5, a state court subpoena can be served anywhere in Texas. Thus, a federal court trial subpoena issued in Texas can be served anywhere in the state, even if the service is outside the district and more than 100 miles from the trial court. See Mohamed v. Mazda Motor Corp., 90 F. Supp.2d 757, 778 (E.D. Tex. 2000). It can also be served in another state as long as the service is within 100 miles.

The second question, namely whether a properly served trial subpoena may be quashed or modified if the witness has to travel to the trial, has a more complicated answer. Rule 45(c)(3)(A)(ii) and 45(c)(3)(B)(iii) require a court to quash or modify a subpoena that requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or transacts business in person except “the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held.” Thus a trial subpoena can compel a witness to travel from El Paso to Texarkana. There is, however, another twist to this rule enforcing state-wide trial subpoenas. The court may, on motion, quash or modify a subpoena requiring a person to travel over 100 miles to attend

trial unless the serving party shows a substantial need for the testimony that cannot otherwise be met without undue hardship and ensures that the subpoenaed person will be reasonably compensated. See Rule 45, Advisory Committee note to the 1991 amendments to 45(c)(3)(A) (“Under the revised rule, a federal court can compel a witness to come from any place in the state to attend trial, whether or not the local state law so provides. This extension is subject to the qualification provided in the next paragraph, which authorizes the Court to condition enforcement of a subpoena compelling a non-party witness to bear substantial expense to attend trial. The traveling non-party witness may be entitled to reasonable compensation for the time and effort entailed.”)

Compare TRCP 176.3, which states that a person may not be required to appear at trial in a county that is more than 150 miles from where the person resides or is served.

A final aside on use of depositions and trial subpoenas: A witness may be “unavailable,” and thus her deposition can be used in lieu of live testimony, even if she can be served with a trial subpoena. “Unavailability” under Rule 32 is keyed to the 100 mile limitation.

4. The Scope of Cross Examination

The Federal Rules of Evidence limit cross examination “to the subject matter of the direct examination and matters affecting the credibility of the witness,” although the court “may, in the exercise of its discretion, permit inquiry into additional matters as if on direct examination.” FRE 611(b).

Compare TRE 611(b): “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.”

5. Judgment as a Matter of Law

Rule 50 once referred to a “directed verdict” and to “judgment as a matter of law” (or JNOV, judgment non obstante verdicto). In 1991, the terminology was changed to Judgment as a Matter of Law (JMOL), in large part because a judge who grants a Rule 50 pre-verdict motion is not “directing” a verdict but removing the case from the jury. Rule 52 roughly parallels Rule 50, but applies in bench trials.

Rule 50(a) explains JMOL “in general”:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

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a. resolve the issue against the party; and

b. grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Rule 50 refers to resolving an “issue.” A Rule 50 motion will not necessarily dispose of the entire case, although often it will do so. It can determine a single issue, or multiple issues, or all of the issues in a lawsuit. The party opposing a Rule 50 motion must be given an opportunity to cure any deficiency in its proof. Echeverria v. Chevron USA Inc., 391 F.3d 607, 611 (5th Cir. 2004). If the Rule 50 motion is made after a party closes, it may need to move to reopen to offer additional evidence.

The standard for granting a Rule 50 motion is essentially the same as the standard for summary judgment. A “mere scintilla” of evidence will not forestall a Rule 50 motion. Krystek v. University of So. Miss., 164 F.3d 251, 255 (5th Cir. 1999). However, the facts and inferences must point so strongly and overwhelmingly in favor of the movant that a jury could reach only one reasonable conclusion. Seven-Up Co. v. Coca-Cola Co., 86 F.3d 1379, 1387 (5th Cir. 1996).

A Rule 50 motion can be made at any time before the case is submitted to the jury. A number of decisions note that, in theory at least, the motion can be made immediately after the opponent’s opening statement. A rare, and possibly unique, example is found in Morgan v. Koch, 419 F.2d 993 (7th Cir. 1969). The plaintiff’s common law claims were barred by limitations unless she could prove fraudulent concealment. Her counsel made an opening statement without mentioning fraudulent concealment, and the trial court invited him to “amend” his opening. When the lawyer declined the invitation, the trial court directed a verdict. The 7th Circuit affirmed.

A number of decisions illustrate how a Rule 50 motion can be made during an opponent’s presentation if all of the evidence is presented on a discrete issue. For example, if a plaintiff’s expert fails to provide sufficient proof on a point requiring expert testimony, the court may grant Judgment as a Matter of Law. See, e.g., American & Foreign Ins. Co. v. General Elec. Co., 45 F.3d 135 (6th Cir. 1995) (JMOL granted in favor of the defendant after plaintiff’s expert offered insufficient proof of proximate causation regarding the cause of a fire.) A more extreme example is provided by Falco Lime, Inc. v. Tide Towing Co., 29 F.3d 362 (8th Cir. 1994). Falco Lime’s first witness was its president and co-owner. On cross examination, he

made admissions fatal to his company’s position. The trial court granted JMOL, and refused to permit any rebuttal testimony. “His admissions were made in response to clear and straightforward questions. There was nothing to be gained by permitting him—or other Falco witnesses—to equivocate and attempt to blunt the damage done by the admissions.” Id. at 365.

Rule 50 motions are usually, first made at the close of the opponent’s case, or at the close of all the evidence. The Fifth Circuit has suggested that JMOL is ordinarily inappropriate before a plaintiff rests, or at least before the plaintiff rests on liability, because additional witnesses may add relevant evidence. Echeverria, 391 F.3d at 612.

Note that you must make a Rule 50 motion in order to object to the sufficiency of your opponent’s evidence in a civil jury trial, and you must do so at least twice: once before the verdict and once after the verdict. If the court denies the pre-verdict motion, the motion must be renewed not later than 10 days after judgment is entered. (If the denial concerns an issue that is not decided by a verdict because, for example, the trial ends without a verdict or the verdict fails to dispose of all the issues, then the motion must be renewed no later than 10 days after the jury is discharged.) The post-verdict motion to the trial court is a jurisdictional requirement for any appeal on the sufficiency of the evidence. Unitherm Food Sys. v. Swift-Eckrich, Inc., 546 U.S. 394, 404 (2006).

Rule 50 used to refer to the failure of the court to grant the Rule 50 motion “at the close of all the evidence.” This language was taken by many courts to mean that the Rule 50 motion had to be made three times: first when the issue in question had been fully heard, then again at the close of all the evidence, and then again after the trial. Rule 50 was amended at the end of 2006 to eliminate the phrase “at the close of all the evidence.” As the Advisory Committee noted, renewing a Rule 50 motion literally “at the close of all the evidence” might not always serve any function. The Advisory Committee, however, also observed that “[m]any judges expressly invite motions at the close of all the evidence [and the] amendment is not intended to discourage this useful practice.”

I would also add, as a practical point, that you might need to make a new JMOL motion at the close of all the evidence even if you made one earlier—if, for example, you are the defendant and the plaintiff has presented a rebuttal case that calls into question your earlier motion.

Compare TRCP 268: Motion for Instructed Verdict. This rule is similar, but somewhat different. Under TRCP 268, a motion can be made (a) after the plaintiff rests, (b) after the defendant rests, or









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(c) after both sides close. If a motion for directed verdict is denied, and if the movant offers additional evidence, the movant must make a second motion at the close of all the evidence—repeating the original grounds and any additional ones. The nonmovant can respond to a motion for directed verdict by moving for a trial amendment or moving to reopen for additional evidence.

Note that our discussion of JMOL circles us back to Rule 16, and specifically Rule 16(c)(2)(N), which refers to “ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c).”

Rule 16(c)(2)(N) was added in 1993, and was one of the main reasons Rule 16 was amended at that time. As the Advisory Committee observes, the amendment was intended “to call attention to the opportunities for structuring of trial … under revised Rules 50 and 52.” Rule 16(c)(2)(N) can be a valuable tool in cases that might otherwise take a long time to try. The Rule recognizes that the court can structure the presentation of evidence to allow an early decision on some isolated issue that might dispose of the entire case. For example, if there is a limitations defense and only a few witnesses who can present the necessary evidence, it might be possible to shorten the trial by presenting those witnesses first.

6. Entry of Judgment

Once you have a judgment, what comes next? A judgment doesn’t become effective until it has been entered in the court’s docket. Before a judgment is docketed, it cannot be either enforced or appealed. In re American Precision Vibrator Co., 863 F.2d 428, 429 (5th Cir. 1989).

Rule 58 prescribes a specific procedure for the entry of judgments. Under the rule, every judgment or amended judgment must, with a few exceptions, be set forth in a separate document. According to the 1963 Advisory Committee that drafted the separate-document amendment, Rule 58 was designed to address confusion concerning when a judgment becomes final and the clock starts ticking for post-verdict motions. “The amended rule eliminates these uncertainties by requiring that there be a judgment set out on a separate document—distinct from any opinion or memorandum—which provides the basis for the entry of judgment.” Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 (1978) (quoting 28 USC App., p. 7824 [Rule 58 Fed. Rules of Civ. Proc. p. 148]).

Compare: TRCP 306a: “The date of judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules … for filing in the trial court the various documents that these rules authorize a party to file within such periods[.]”

Though it seems like a simple formality, every once in a while the separate document requirement creates a snag for a court. If the court fails to properly enter judgment, judgment will be considered “entered” 150 days after an improper entry in the civil docket. Rule 58(c)(2)(B). In any event, the separate document requirement can be waived if the parties treat the court’s entry as a final judgment, such as by filing an appeal. Long v. County of L.A., 442 F.3d 1178, 1184 n.3 (9th Cir. 2006).

7. Motion for New Trial, or to Alter or Amend

Judgment If all else fails for the losing party, he still has one

arrow left in his quiver: he can move for a new trial or for an amendment to the court’s judgment under Rule 59.

Courts do not generally grant motions for a new trial unless the party seeking a new trial shows prejudicial error or that substantial justice has not been done. Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999). A motion for new trial is not the vehicle for raising additional arguments or advancing new legal theories. Pluet v. Frasier, 355 F.3d 381, 385 n.2 (5th Cir. 2004).

Rule 59 is also the means for moving for a remittitur if you think the jury was overly generous in its award. A Fifth Circuit court granting remittitur will reduce total damages to the maximum amount that a reasonable jury could have awarded and, if the plaintiff declines to accept the reduced amount, may order a new trial. Vogler v. Blackmore, 352 F.3d 150, 156 (5th Cir. 2003); Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995).

In federal court, the time to file a Rule 59 motion expires ten days after entry of the court’s judgment. Tijerina v. Plentl, 984 F.2d 148, 150 (5th Cir. 1993).

Compare TRCP 329b, which permits a motion for new trial to be filed within thirty days after judgment.

If you file within the 10-day period and later want to add an additional ground for granting a new trial or amending a judgment, the court may exercise its discretion to allow the amendment. Dotson v. Clark Equipment Co., 805 F.2d 1225, 1228 (5th Cir. 1986).













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VI. FINAL NOTE: KNOW YOUR TRIAL JUDGE As a final note on federal trial practice, let me

repeat how important it is to learn whatever you can about the requirements and preferences of your trial judge. These requirements may affect the final pretrial conference and order. They may also affect your behavior during the trial.

Most judges have pet peeves. Sometimes they reflected in the rules of the individual court, and sometimes they aren’t. You can and should be able to recover from the embarrassment of being chastised by the judge, but getting chewed on is not much fun and it doesn’t help you with the jury.

So you need to pay attention to things like the note from Judge Means in his rules on Courtroom Decorum: “While examining a witness, look at the witness, not at the jury.” I assume Judge Means is offended by trial lawyers who understand all too well that jurors regard the lawyers as witnesses and that the lawyers’ questions are often more important than the witness’s answers. I don’t know if Judge Means would embarrass me if I looked at the jury while asking my questions, but I don’t want to find out.


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APPENDIX A

NORTHERN DISTRICT OF TEXAS Lr 16.4 Pretrial Order

Unless otherwise directed by the presiding judge, a pretrial order must be submitted to the presiding judge at least 10 days before the scheduled date for trial. All attorneys are responsible for preparing the pretrial order, which must contain the following:

(a) a summary of the claims and defenses of each party;

(b) a statement of stipulated facts;

(c) a list of contested issues of facts;

(d) a list of contested issues of law;

(e) an estimate of the length of trial;

(f) a list of any additional matters that might aid in the disposition of the case;

(g) the signature of each attorney; and

(h) a place for the date and the signature of the presiding judge.


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APPENDIX B

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS

_________________________, Plaintiffs, vs. _________________________, Defendants.

§ § § § § § § § §

CIVIL ACTION NO. ____________

JOINT PRETRIAL ORDER

1. APPEARANCE OF COUNSEL

List each party, its counsel, and counsel’s address and telephone number in separate paragraphs.

2. STATEMENT OF THE CASE

Give a brief statement of the case, one that the judge could read to the jury panel for an introduction to the facts and parties; include names, dates, and places.

3. JURISDICTION

Briefly specify the jurisdiction of the subject matter and the parties. If there is an unresolved jurisdictional question, state it.

4. MOTIONS

List pending motions.

5. CONTENTIONS OF THE PARTIES

State concisely in separate paragraphs each party’s claims.

6. ADMISSIONS OF FACT

List all facts that require no proof.

7. CONTESTED ISSUES OF FACT

List all material facts in controversy.

8. AGREED PROPOSITIONS OF LAW

List the legal propositions that are not in dispute.

9. CONTESTED PROPOSITIONS OF LAW

State briefly the unresolved questions of law, with authorities to support each.

10. EXHIBITS

A. On a form similar to the one provided by the cleric, each party will attach two lists of all exhibits expected to be offered and will make the exhibits available for examination by opposing counsel. All


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documentary exhibits must be exchanged before trial, except for rebuttal exhibits or those whose use cannot be anticipated.

B. A party requiring authentication of an exhibit must notify the offering counsel in writing within five (5) days after the exhibit is listed and made available; failure to object in advance of the trial in writing concedes authenticity.

C. Within reason, other objections to admissibility of exhibits must be made at least three business days before trial; the Court will be notified in writing of disputes, with copies of the disputed exhibit and authority.

D. Parties must mark their exhibits to include the date and case number on each.

E. At the trial, the first step will be the offer and receipt in evidence of exhibits.

11. WITNESSES

A. List the names and addresses of witnesses who may be called with a brief statement of the nature of their testimony. Include the qualifications of expert witnesses; these will be used to qualify the expert at trial.

B. Include:

“If other witnesses to be called at the trial become known, their names, addresses, and subject of their testimony will be reported to opposing counsel in writing as soon as they are known; this does not apply to rebuttal or impeachment witnesses.”

12. SETTLEMENT

State that all settlement efforts have been exhausted, that the case cannot be settled, and that it will have to be tried.

13. TRIAL

A. Probable length of trial; and

B. Logistical problems, including availability of witnesses, out-of-state people, bulky exhibits, and demonstrations.

14. ATTACHMENTS

Include these required attachments: A. For a jury trial:

(1) Proposed questions for the voir dire examination.

(2) Proposed charge, including instructions, definitions, and special interrogatories, with authority.

B. For a nonjury trial:

(1) Proposed findings of fact (without repeating uncontested facts) and

(2) Conclusions of law, with authority.


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Date:

UNITED STATES DISTRICT JUDGE Approved:

Date:

Attorney-in-Charge, Plaintiff Date:

Attorney-in-Charge, Defendant


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APPENDIX C

WESTERN DISTRICT OF TEXAS RULE CV-16. PRETRIAL CONFERENCES; SCHEDULING; MANAGEMENT

(a) A uniform form of scheduling order will be entered in every case except those exempted in Section (b) of this rule and those in which exceptional circumstances require entry of a different form of order. The form of the scheduling order is set out in Appendix “B” of these rules. The scheduling order will, after filing, control the course of the case and may not be amended without leave of Court.

(b) The same types of cases that are exempt from mandatory disclosure requirements under Federal Rule of Civil Procedure 26(a)(l)(E) will be exempt from the scheduling order requirement of Rule 16. In addition, the following categories of cases shall also be exempt from the scheduling order requirement: (1) bankruptcy appeals; (2) civil forfeiture cases; (3) land condemnation cases; (4) naturalization proceedings filed as civil cases; (5) interpleader cases; and (6) any other case where the judge finds that the ends of justice would not be served by using the scheduling order procedure of Rule 16.

(c) Within sixty (60) days after any appearance of any defendant, the parties shall submit a proposed scheduling order to the Court in the form as indicated in Appendix “B”. The parties first shall confer as required by Rule 26(f). The content of the proposed scheduling order shall include proposals for all deadlines set out in the form for scheduling order contained in Appendix “B” to these rules. The parties shall endeavor to agree concerning the contents of the proposed order, but in the event they are unable to do so, each party’s position and the reasons for the disagreement shall be included in the proposed schedule submitted to the Court. In the event the plaintiff has not yet obtained service on all defendants, the plaintiff shall include an explanation of why all parties have not been served. The scheduling proposals of the parties shall be considered by the trial court, but the setting of all dates is within the discretion of the Court.

(d) Unopposed discovery may continue after the deadline for discovery contained in the scheduling order, provided that discovery does not delay other pretrial preparations or the trial setting. Absent exceptional circumstances, no motions relating to discovery, including motions under Rules 26(c), 29, and 37, shall be filed after the expiration of the discovery deadline, unless they are filed within five (5) business days after the discovery deadline and pertain to conduct occurring during the final seven (7) calendar days of discovery. Written discovery is not timely unless the response to that discovery would be due before the discovery deadline. The responding party has no obligation to respond and object to written discovery if the response and objection would not be due until after the discovery deadline. Depositions must be completed before the discovery deadline. Notices served before the discovery deadline which purport to schedule depositions after the discovery deadline will not be enforced.

(e) Unless otherwise ordered by the Court, each party must serve and file the following information at least ten (10) calendar days before the scheduled date for trial, the date of jury selection, docket call, or the final pretrial conference, whichever is first.

(1) A list of questions the party desires the Court to ask prospective jurors.

(2) In cases to be tried to a jury, a statement of the party’s claims or defenses to be used by the Court in conducting voir dire. The statement shall be no longer than ½ page with type double-spaced.

(3) A list of proposed stipulated facts.

(4) An appropriate identification of each exhibit as specified in this rule (except those to be used for impeachment only), separately identifying those which the party expects to offer and those which the party may offer if the need arises.


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(5) The name and, if not previously provided, the address and telephone number of each witness (except those to be used for impeachment only), separately identifying those whom the party expects to present and those whom the party may call if the need arises.

(6) The name of those witnesses whose testimony is expected to be presented by means of a deposition (except those to be used for impeachment only) and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony.

(7) Proposed jury instructions and verdict forms.

(8) In non jury trials, Proposed Findings of Fact and Conclusions of Law. Any motions in limine.

(9) An estimate of the probable length of trial.

At least three (3) calendar days prior to the scheduled date for trial, the date of jury selection, docket call, or the final pretrial conference, whichever is first, each party must serve and file the following:

(i) A list disclosing any objections to the use under Rule 32(a) of a deposition designated by the other party.

(ii) A list disclosing any objection, together with the grounds therefore, that may be made to the admissibility of any exhibits. Objections not so disclosed, other than objections under Rules 402 and 403 of the Federal Rules of Evidence, shall be deemed waived unless excused by the Court for good cause shown.

(f) All trial exhibits shall be marked with an identifying sequence, followed by a dash, followed by a number; for example, Exhibit P 1 and Exhibit D1 The identifying sequence (e.g., “P” and “D”) will identify the party who will offer the exhibit. Parties will assign numbers to their exhibits consecutively, beginning with the number 1. The letter “G” will be assigned to the government for identification purposes. In cases involving more complex pleading relationships (e.g., consolidated cases, intervenors, and third party actions), it will be the responsibility of counsel for the plaintiff(s), in consultation with the judge’s courtroom deputy clerk, to coordinate the assignment of the unique identification sequences.


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APPENDIX D EASTERN DISTRICT OF TEXAS

(as amended 5/1/06)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS

_________________________, Plaintiffs, vs. _________________________, Defendants.

§ § § § § § § § §

CIVIL ACTION NO. ____________

JOINT PRE-TRIAL ORDER

This cause came before the court at a pre-trial management conference held on___________, 20_ , pursuant

to Local Rule CV-16 and Rule 16 of the Federal Rules of Civil Procedure.

A. COUNSEL FOR THE PARTIES

Plaintiff(s):

Defendant(s):

B. STATEMENT OF JURISDICTION

(e.g., “Jurisdiction in this case is based on diversity of citizenship under Title 28 U.S.C. § 1332”; “Jurisdiction in this case is based on Title 28 U.S.C. § 1331 in that the plaintiff brings this action under Title 46 U.S.C. § 688, the Jones Act”)

Jurisdiction is (not) disputed.

C. NATURE OF ACTION

(e.g., “This is a products liability case wherein the plaintiff seeks damages for personal injuries sustained when he fell from the driver’s seat of a forklift. The plaintiff contends that the forklift was defectively designed and manufactured by the defendant and that the defects were a producing cause of his injuries and damages.”)

D. CONTENTIONS OF THE PARTIES

(Note: The contentions of each party on those claims and issues approved for trial at the management conference shall be succinctly stated in a form suitable to be read to the jury.)

E. STIPULATIONS AND UNCONTESTED FACTS

F. CONTESTED ISSUES OF FACT AND LAW


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G. LIST OF WITNESSES

(Note: Each party shall set forth a separate list of witnesses who (1) will be called to testify at trial; (2) may be called to testify at trial, and (3) may be presented by deposition testimony at trial. Those portions of the depositions that may be offered into evidence at trial shall be listed by page and line number.

H. LIST OF EXHIBITS

Counsel should fill out and submit to the Court an exhibit list containing the information in the form available on the court’s website, located at www.txed.Luscourts.gov , or at the clerk’s office. The list shall also include exhibits to be used solely for impeachment.

I. LIST OF ANY PENDING MOTIONS

J. PROBABLE LENGTH OF TRIAL

The probable length of trial is _________ days.

K. MANAGEMENT CONFERENCE LIMITATIONS

(Note: The parties shall set forth any limitations agreed upon or ordered by the court at or after the management conference set forth in Local Rule CV-16 such as a time limit on the length of trial, limitations on the number of experts a party may call, limitations on the length of video depositions, the use of deposition summaries, etc.)

L. CERTIFICATIONS

The undersigned counsel for each of the parties in this action do hereby certify and acknowledge the following:

(1) Full and complete disclosure has been made in accordance with the Federal Rules of Civil Procedure and the Court’s orders;

(2) Discovery limitations set forth in the Federal Rules of Civil Procedure, the Local Rules, and the Court’s orders have been complied with and not altered by agreement or otherwise;

(3) Each exhibit in the List of Exhibits herein:

(a) is in existence; (b) is numbered; and (c) has been disclosed and shown to opposing counsel.

Approved as to form and substance: Attorneys for Plaintiff(s) Attorneys for Defendant(s)

(Note: An attorney of record may sign and certify this order on behalf of opposing counsel “with permission.”)


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This Joint Pre-Trial Order is hereby approved this ____ day of ___________, 20___. United States District Judge (Note: Where additional parties are joined or intervene pursuant to Rules 14, 19 and 24 of the Federal Rules of Civil Procedure, the style of the case and the various sections of the pre-trial order should be modified to reflect the additional parties and information pertaining to them.)

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