The Word You Never Want to Hear
Waiver. No matter how long you have practiced, you never want to hear that word when addressing jury charge error. It shows up repeatedly in opinions year after year, but why? According to the Texas Supreme Court last year, it means you simply did not make the trial court aware of what was wrong with the jury charge.
Cruz v. Andrews Restoration, Inc.
By now, you are well aware of this opinion and its impact on your practice. The Texas Supreme Court held that submitting a proposed jury charge does not preserve error without the complaining party specifically bringing the error in the court's charge to the trial court's attention. Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817, 829-31 (Tex. 2012). The key is awareness on the part of the trial court.
So What Do You Do?
Make a request and object to the trial court's proposed charge. That is what everyone will tell you. But how do you incorporate that into your practice when you have no idea what the trial court's charge is going to look like?
Here is what we have tried to do to effectively preserve error:
1. Assume the worst case scenario and that the trial court will submit the proposed jury instructions and questions proposed by your opponent.
2. Work backwards off of your proposed jury instructions and questions and prepare all objections and requests to your opponent's jury instructions and questions for the formal charge conference.
3. At the formal charge conference, make all objections and requests to the trial court's charge prepared and obtain a verbal ruling on all objections and requests during the formal charge conference.
4. At the close of the formal charge conference, submit a pleading for signature by the trial court titled Written Requested Jury Instructions and Questions after Objecting to the Proposed Jury Charge and Questions. Be sure to obtain the trial court's signature on that pleading noting the trial court's ruling on each objection and request.