Tools of Submission: The Weakening Broad-Form 'Mandate' in Texas and the Roles of Jury and Judge

Summary

---

After briefly recounting the history of the broad-form debate, Davis examines several recent Texas cases. It concludes that the path to fewer reversals based on jury-charge error depends not so much whether questions are submitted broadly or separately, but rather on a clear understanding of and respect for the roles of judge and jury. Because the Texas Supreme Court has continued to stress the importance of appellate courts' ability to review jury verdicts for legal error, trial courts should be well attuned to its recent admonitions about the form that jury charges should take.

See the full content of this document

Extract

---

Tools of Submission: The Weakening Broad-Form 'Mandate' in Texas and the Roles of Jury and Judge

I. INTRODUCTION

Submission of a case to the jury reflects the unique procedural moment when both lawyers and judge "cut loose" a case, sending the jury away to deliberate over what they hope is a substantially correct and readily comprehensible set of questions, definitions, and instructions.1 The accurate translation of legal terms of art to jurors untrained in law, however, poses an array of challenges, and appellate courts in Texas will reverse judgments based on jury verdicts that reveal nothing but the mere possibility of error.2

In an effort to limit the judicial resources consumed by appeal and retrial of cases based on actual or potential jury error, Texas courts have struggled for over a century to define improved rules for submitting cases to juries. This struggle has taken the path of a pendulum swinging away from and back towards broad-form submission,3 with the pendulum's direction changing as new problems appear at both ends of its swing. Although the current rule in Texas favors submission of jury questions in broad form, recent opinions from the Texas Supreme Court indicate that the pendulum is falling back the other way, destabilizing broad-form's position of favor.

Superficially focused on the structure of jury questions and the goal of conserving judicial resources, the current phase of the broad-form debate reflects, more fundamentally, a questioning of the jury's ability to perform its role as factfmder. Reversals based on the submission of broad-form questions that commingle legally valid and invalid theories of liability comport with a common-sense understanding of a jury's abilities and purpose. However, reversals based on the improper submission of broad-form questions that commingle elements with and without evidentiary support rests on a legally fictitious distinction between questions of law and questions of fact. This distinction, however, is firmly engrained in the state's jurisprudence, and the Texas Supreme Court's recent opinions on broad-form submission thus stand on firm footing. At present, it remains unclear whether these recent opinions mark the limits of the court's shift away from broad form.

After briefly recounting the history of the broad-form debate, this article examines several recent Texas cases. It concludes that the path to fewer reversals based on jury-charge error depends not so much on whether questions are submitted broadly or separately, but rather on a clear understanding of and respect for the roles of judge and jury. Because the Texas Supreme Court has continued to stress the importance of appellate courts' ability to review jury verdicts for legal error, trial courts should be well attuned to its recent admonitions about the form that jury charges should take.

II. THE PENDULUM'S SWING: A SKETCH OF THE DEBATE OVER BROAD-FORM SUBMISSION IN TEXAS

Several cases4 and commentators5 have provided pieces of the long and, at times, somewhat hazy6 history of broad-form submission in Texas. Rather than repeat this history in full, this article will touch only briefly upon its major moments of change before focusing on questions about the future of broad-form submission that face Texas courts today. The mere fact of the historical vacillation between a preference for granulation and a preference for consolidation of jury questions itself indicates the difficulty of the issues underlying the debate.

A. Early Approval of the General Charge

From at least the late nineteenth century to the early twentieth century, Texas trial courts were permitted to submit both special and general charges.7 An early Texas statute defined the "special charge" as "one wherein the jury find[s] the facts only on issues made up and submitted to them under the direction of the court."8 A "general charge," by contrast, gave the jury free rein to apply the facts to the law as laid out in the charge; it required the jury simply to determine which party should prevail in the suit.9

Use of the general charge led to a high reversal rate because just one factual, legal, or procedural problem with any theory in the charge necessitated reversal-even if the record contained evidence to support one of the non-defective theories.10 The problem that Texas courts quickly identified with the general charge was the blinding effect that it had on the reviewing court. Because of the possibility...

See the full content of this document

---