09/24/2012 - Appeal of Interlocutory Remand Orders in Putative Class Action Cases
You cannot appeal a remand order based on lack of subject matter jurisdiction or defects in the removal procedure, right? That may not be so anymore for certain remand orders on cases removed pursuant to the Class Action Fairness Act (CAFA).
09/05/2012 - Mandamus: The Hurdles to Relief
A successful petition for writ of mandamus must overcome multiple hurdles to secure relief.
07/27/2011 - Proportionate Responsibility, Joint and Several Liability, and the Jury Charge
When faced with a negligence case with one plaintiff, one defendant, and a single responsible third party, the submission of the proportionate responsibility issue to the jury is a relatively simple task. But the presence of different claims, theories or parties can make the submission of proportionate responsibility and other joint and several liability issues to the jury quite complex.
09/02/2010 - Current Mandamus Trends
Mandamus relief, of course, requires both an abuse of discretion (or the violation of a legal duty imposed by law) and an inadequate remedy by appeal. But when is a remedy by appeal inadequate for review of a trial court’s incidental rulings?
08/09/2010 - Mohawk: Limited Interlocutory Review of Federal Court Orders to Disclose Potentially Privileged Attorney-Client Information
The United States Supreme Court recognizes the attorney-client privilege as “one of the oldest recognized privileges,” meant to encourage attorneys to “provide candid advice and effective representation” and to further “broader public interests in the observance of law and administration of justice.”
01/22/2010 - The Court's Charge: Current Trends and Issues
Drafting a charge in even a seemingly simple negligence case can become quite complex – particularly with tricky apportionment issues. While a simple negligence claim with a single defendant, no contributory negligence and no exemplary damage claims is easily pulled from the patterns, as your case diverges from that simple fact pattern drafting the charge may become more difficult.
09/15/2009 - Jury Instructions for a Claim of Tortious Interference with Prospective Relations
What can be so hard about instructing a jury on a claim for tortious interference with prospective relations? Perhaps nothing - depending upon the elements of the claim in your state and the factual basis for the interference and other pleaded claims in your case.
09/10/2009 - Federal and State Expert Testimony Under Daubert and Robinson: What's the Difference?
This paper explores the general requirements to proffer and seek review of the admission and exclusion of expert testimony in federal and state court. It focuses on the standards for admissibility, the role of experts in summary judgment proceedings, preservation, and standards of review on appeal in federal and state court. Along with a few practice tips, the article notes differences where discernible between federal and state court.
05/12/2009 - Fifth Circuit Enforces Disclaimer Provision in Form Agreement to Bar Misrepresentation Claims Against Manufacturer
On May 7, 2009, the Fifth Circuit affirmed a take-nothing summary judgment for Haynes and Boone, LLP client BASF Corporation, rejecting Plaintiff Thermacor Process, L.P.’s negligent misrepresentation, fraudulent inducement, and Texas Deceptive Trade Practices Act (DTPA) claims based on a standard disclaimer-of-warranty provision and the absence of any actionable misrepresentation. Thermacor Process, L.P. v. BASF Corp., No. 08-10227 (5th Cir. May 7, 2009). This decision reinforces Texas law that manufacturers can rely on standard disclaimers in their form agreements to defeat claims based on the absence of any misrepresentation, particularly when the parties are sophisticated and the disclaimer is conspicuous.
01/30/2009 - Convenience, Comity, Fairness and Efficiency: Changes of Forum
Presented at Fighting the Forum: Avoiding Litigation in Texas State Court, Tarrant County Bar Association, Brown Bag Seminar Series, January 30, 2009
This paper explores several common law and statutory options when faced with a forum that is “inconvenient,” prejudicial or duplicative. The context and standards vary for each option. And the result may differ as well - with relief including dismissal, abatement, stay or transfer.
09/04/2008 - Jury Charge Trends
Jury charge issues usually fall in the following four general categories: (1) substance, (2) form, (3) preservation of error, and (4) harm/less error. This paper addresses each area, although extensive treatment of all areas is not possible.
08/25/2006 - Mandamus Review of Incidental Rulings: Does B>D=IR?
Mandamus relief, of course, requires both an abuse of discretion (or the violation of a legal duty imposed by law) and an inadequate remedy by appeal. But when is a remedy by appeal inadequate for review of a trial court’s incidental rulings? Never? That historically has been the general answer. Sometimes? That in recent years has been the answer under an “exceptional or compelling circumstances” test.
06/23/2005 - The Charge: Top Five Things You Need to Know
State Bar of Texas Annual Meeting: Litigation Section (June 23, 2005)
03/10/2005 - I Can’t Find This in the *!?#%* PJC! Jury Questions and Instructions That The Business Litigator Needs - But Aren’t In The PJC.
Pattern instructions do not and cannot contain all possible jury questions and instructions a court or practitioner may need in a case. Why not? Reasons vary, including...
11/01/2004 - Unanimous Jury Findings on Exemplary Damages: How Difficult Can It Be?
Unanimity seems quite simple. But partial unanimity is surprisingly difficult. In 2003, House Bill 4 (“HB4”) adopted, among other things, a new requirement in chapter 41 of the Texas Civil Practice & Remedies Code (“CPRC”) that the jury must unanimously find exemplary damages; a jury, however, may continue to find liability for actual damages on a ten-juror vote.
09/11/2003 - The Court’s Charge: The State of Payne and the Progeny of Casteel
As the law continues to develop under Payne
preservation of charge error may grow easier in certain circumstances but strategy calls may grow more difficult as theories and form options increase. This paper outlines the basic principles and most recent cases in preserving charge error, identifying charge error, and applying the harmless error rule.
03/07/2002 - Appellate Review of Discovery Rulings by Mandamus
Advanced Evidence and Discovery Course, Ch. 10, March 7, 2002
The trial court’s discovery ruling just gutted your case (or so you think!). Can you get immediate appellate relief before proceeding to trial or handing over that stack of privileged documents?
01/11/2002 - Court's Charge - Minefield Approach
When Do You Draft? It is never too early to start drafting your charge. Knowledge of how your charge will look will assist with the pleading, discovery, and proof aspects of your case. Indeed, advance knowledge of your charge will ensure that you not prove up the wrong case! The first big bad mistake of charge practice is waiting too long to draft the charge. A draft should be prepared at the outset of the case and updated throughout the pretrial process. You should avoid the temptation of waiting until the eve before charge conference! By that point, it may well be too late.