Appellate Tips for the Trial Lawyer

This list presents some ever-ready tips for the trial lawyer who just can't seem to find his trial procedure book. These tips are for Texas state cases.

The Jury Shuffle

After a venirepanel is assigned to the trial court, a party may demand a jury shuffle before voir dire begins. Tex.R.Civ.P. 223. Only one shuffle is allowed in each case. Before voir dire means before any question - oral or written - is presented to any venirepanel member. If the parties have sent out a jury questionnaire, it's probably too late to ask for a shuffle, but there's no question that they can't once the questionnaires come back.


The law in Texas used to be that once a veniremember demonstrated bias, he was dismissed. That is not the law in Texas anymore. In Cortez-HCCI-San Antonio, Inc., 159 S.W.3d 87, 92-94 (Tex. 2005), the Texas Supreme Court held that veniremembers can be rehabilitated. "[T]he relevant inquiry is not where jurors start but where they are likely to end"; an initial leaning is not a basis for disqualification if it represents skepticism rather than unshakeable conviction.

Preserving "For Cause" Challenges

In Cortez, the Texas Supreme Court also clarified the procedure necessary to preserve a challenge for cause:

  1. When the court overrules your challenge for cause, you must use a peremptory challenge.
  2. Exhaust all your remaining peremptory challenges.
  3. Explain on the record that you would have struck juror number so-and-so if did not have to exercise a peremptory strike on the one you challenged for cause.

You aren't required to explain why you would have used your last peremptory, but you preserve error only when you have exhausted all of your peremptories and an objectionable venireperson remains on the panel.

Beware of Dual Motions for Summary Judgment

Under the Texas Rules of Civil Procedure, an opposing party can move for traditional summary judgment or a no-evidence motion for summary judgment. For sometime the courts of appeal said that you can file one, but not the other. The Texas Supreme Court put that thinking to bed by holding in Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004) that appellate courts can't disregard "no evidence" grounds on the basis that evidence is attached to a traditional summary judgment motion. So if any motion for summary judgment asserts "no evidence" grounds, the non-movant had better respond.

Be Careful Not to Invite Error after a Loss

A party can't urge the trial court to enter a judgment on the jury's verdict and then complain about the verdict on appeal. Litton Indus. Prods. Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex. 1984). If you lose the trial, but need to have the trial court enter a judgment to start the appellate process, be sure to reserve your rights by submitting a proposed judgment as approved to form only. Plaintiffs' counsel in First Nat'l Bank v. Fotjik, 775 S.W.2d 632, 633 (Tex. 1989) preserved error by submitting a proposed judgment, but qualifying the submission as to form only:

While Plaintiffs disagree with the findings of the jury and feel there is a fatal defect which will support a new trial, in the event the Court is not inclined to grant a new trial prior to entry of judgment, Plaintiffs pray the Court enter the following judgment. Plaintiffs agree only as to the form of the judgment but disagree and should not be construed as concurring with the content and result.

Calculating Judgment Interest

Section 304 of the Texas Finance Code governs judgment interest. For a breach of contract case, you either use the interest specified in the contract or the formula cited in Tex. Fin. Code § 304.002. In non-contract cases, section 304.003 governs and gives you a formula. Section 304.003(b) states that the consumer credit commissioner will basically tell you what the postjudgment rate to be applied is. The Office of Consumer Credit Commissioner can be accessed here and the judgment rate for the current month here. Post-judgment interest is compounded annually. Prejudgment interest is calculated at the same rate, but is simple and not compounded annually.


There is no official deadline for filing a writ of mandamus, but there are a few courts in Texas that will penalize a party solely for undue delay. In the past, mandamus wasn't available without a written order. With a change in the appellate rules, mandamus is now possible with an oral ruling that is clear from the record. In re Bledsoe, 41 S.W.3d 807, 811 (Tex. App. - Fort Worth 2001, orig. proceeding). Mandamus involves "extraordinary" circumstances so it is wise to hire appellate counsel to pursue mandamus while the trial docket continues on.

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