No attorney speculation is allowed under the merits-based mandamus review by the appellate courts.
In many circumstances, the way to appeal the trial court’s decision granting a new trial will be an original writ of mandamus with the appropriate court of appeals. Sometimes this will even be in an original action in the Texas Supreme Court.
Whoever is bringing the writ to the court of appeals or the Texas Supreme Court will usually be labeled the relator, which simply means (for mandamus purposes) the person on whose behalf the mandamus is filed. This type of writ could be called an expanded mandamus because it is a “merits-based mandamus review of a trial court’s articulated reasons for granting a new trial.” [1] This article focuses on the expanded mandamus review based on what a prospective juror does not include on a written questionnaire.
Due to the nature of the Texas Supreme Court’s decision from In Re Whataburger Restaurants LP, 429 S.W.3d 597 (Tex. 2014) (per curiam), this article is written from the defense perspective, however plaintiff’s attorneys should take this scenario into account when trying to provide non-speculative evidence of how the plaintiff was prejudiced. The key goal is to be able to say more than, “We would have asked about that had we known.” This can be a difficult task for plaintiff’s attorneys when dealing with omissions on a standard jury questionnaire.
Questionnaire Omissions, per se or not per se:
If a juror omits something that was directly asked in the questionnaire, will that be enough for a new trial on its own? Now, under In Re Whataburger Restaurants, it’s a tough standard to meet. Parties need evidence that the omission “probably caused injury,” or that the omission would have resulted in a per se disqualification. [2] The list of what the general per se disqualifications are can be found in the standard juror questionnaire (being at least 18 years old and having the ability to read and write are just a few basic examples). [3]
But what happens if the juror omission is much more subtle? [4] Keep in mind that jury selection questionnaires can vary from venue to venue…
Here is an example to illustrate something similar to the In re Whataburger Restaurants juror omission scenario:
Let’s say that the appellate attorney is reviewing the record for a wrongful death case: A truck flipped over from driver negligence and ten different people died gruesomely. The attorney who worked on the trial informs the appellate attorney that he is upset because he won the case for his client, but he thinks the trial court granted a new trial because something went wrong in voir dire questioning.
After the opposing party did some digging, it turned out that one juror didn’t say anything about being a defendant in two different credit collection actions.
In the original trial, the written questionnaire asked if anyone had been a party in any civil cases in the past two years, the first juror checked the box but was not stricken and was not questioned on the subject. However, the second juror, our juror, did not check the box because she really just wasn’t paying attention.
During the hearing on the motion for a new trial, the judge said that she granted the motion because the juror was one of the twelve selected and the juror didn’t answer questions correctly. The trial judge wouldn’t say anything else beyond that, only that the new trial should be granted “in the interests of justice.”
Now, our trial attorney is having a panic attack because the opposing counsel is complaining that he could never have asked about the credit actions because they weren’t disclosed.
The opposing counsel said that, if he’d known about the non-disclosures he would most certainly have asked about them, and probably used a strike on that juror!
“What can I do to avoid the new trial?!” Our trial attorney asks.
“Don’t worry. Take a deep breath. I know what we can do.” The appellate attorney replies.
Both the trial attorney and the appellate attorney want to save their clients the time and expense of a new trial:
The appellate attorney can petition the appellate court with appropriate jurisdiction for a writ of mandamus. [1] She might even be able to avoid the new trial altogether.
First she needs to look at the trial court’s reasoning for granting the new trial, if it is even on the record at all. If the trial judge did not articulate her reasoning for granting the new trial, the court of appeals can sometimes even force her to do so; or it might stop and say that the trial court didn’t give a “reasonably specific explanation,” for granting the new trial. (Don’t forget that this is all reviewed under an abuse of discretion standard, albeit one with less discretion for the trial court as can bee seen by the requirements imposed on remand.) [5]
The requirement from In re United Scaffolding, Inc., 377 S.W.3d 685 (Tex.2012) (United Scaffolding 2) is that the “stated reason for granting a new trial is legally appropriate and specific enough to indicate that the trial court derived the reasons from the particular facts and circumstances of the case at hand.” [6] In other words, the reasoning articulated by the trial court is very fact-sensitive. Reasons like, “in the interest of justice,” or just basic parroting of the rules will not satisfy the courts of appeals. [7]
What will satisfy the courts of appeals? The main reasoning that is the focus of this article, and probably the most important aspect of the trial court’s reasoning will be “a defect that probably resulted in an improper verdict,” and a specific explanation of what exactly caused the improper verdict. [8] This inevitably means that, at some point, the opposing party was harmed or prejudiced by the defect.
How was the other party injured at trial?
The merits-based mandamus review by the appeals court will focus on the probability of injury, which doesn’t sound like the standard language in abuse of discretion review; it sounds like a preponderance of the evidence standard: But then again, attorneys can see why this type of appellate review defies basic standards in appeal, it is essentially appealing a trial before the trial has been finalized and jurisdiction passes to the court of appeals. [9]
This brings us to the crossroads of injury, probability, and speculation under In re Whataburger Restaurants.
In our scenario above, the juror omitted things from her local questionnaire. Specifically, she did not write down that she had been a defendant in two previous credit collection actions. It sounds like juror misconduct, but maybe the juror just forgot. After all, people forget things all the time. It is not outside the realm of possibility; it could be that the juror wasn’t even paying attention. [10] Not only does the movant for a new trial need to show that the misconduct actually occurred, but the misconduct itself must also be material and have probably caused injury to the movant. [11]
Also remember that, in our scenario, the case was about a driver who was negligent. It didn’t really have anything in it that was directly related to consumer debt or credit collections, and that is what our juror did not write down. The decision in our hypothetical might come down to just how related the current litigation is to our juror’s omissions. Any nexus between the type of case our juror omitted that she was a defendant in, and the current case will likely go towards whether the misconduct was material. However, even if the two types of cases are more related than the example, the party asking for the new trial must still show that it was harmed somehow.
The point of the In re Whataburger Restaurants case is that the side asking for the new trial based on the juror omission, the side that was harmed, must show something more than speculation.
The Takeaway & Speculation: “I would have asked about that had I known!”
The opposing trial counsel is still jumping up and down, complaining that he would have asked and used a strike on that juror if he had known. He also explained in his motion that the omission was most certainly material. In the opposing counsel’s view, the fact that the juror had been a defendant in credit collection actions before was something he absolutely had to know, because this truck incident — the current case — is related to large sums of money sought against a defendant! This is probably not an absurd argument, after all reasonable people could differ as to how material, and how related, the omission was to the truck accident.
Our appellate attorney needs to ask herself, while researching the record, what the opposing trial counsel actually used his strikes for and how he treated the other prospective jurors with similar issues.
- Did he strike any other potential jurors for being defendants in lawsuits?
- Did he challenge any other potential jurors for previously being a defendant in a lawsuit?
- Did he question any other potential jurors for that same reason?
- Were any of the potential jurors rehabilitated?
Since it’s highly unlikely that every single other juror omitted the same answer on his or her questionnaire: If the opposing counsel didn’t strike any jurors who answered yes to the question about being a defendant in a lawsuit, it is probably going to be an uphill battle for opposing counsel when our appellate attorney files her writ of mandamus.
Why? Opposing counsel doesn’t have any concrete evidence to support the speculation. “Generally, such testimony about what a person ‘would have’ done or what ‘would have’ happened under different circumstances is speculative and conclusory in the absence of some evidentiary support.” [12]
Timothy Neal Tesch Jr.
Texas Attorney
Thanks to Patrice Pujol and Sharon M. Garner for the discussion of In Re Whataburger Restaurants LP, 429 S.W.3d 597 (Tex. 2014) (per curiam) in the Texas Appellate Advocate, 26 The App. Advoc. 745 (Tex. 2014).
*The preceding article and following end-notes are for educational purposes only. This article is simply meant to be a discussion and update in Texas appellate and mandamus practice. Nothing contained inside this article is designed to be a substitute for legal advice. The author has no affiliation with Whataburger™ Restaurants, or any other company mentioned in this academic discussion.*
[1] See, In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex.2012) (United Scaffolding 2) (United Scaffolding returned after the Court had previously, conditionally, granted its writ of mandamus in the companion case from 2010. 301 S.W.3d 661, 663 (Tex. 2010)); see also e.g., In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 756-57 (Tex.2013).
[2] The crux of this article centers on the recent decision, on an original mandamus, to the Texas Supreme Court. In Re Whataburger Restaurants LP, 429 S.W.3d 597, 57 Tex. Sup. J. 468 (Tex. 2014) (per curiam).
[3] The standard juror questionnaire is mandated, again, by the Texas Government Code. The list of per se disqualifying factors can be found in Tex. Gov’t Code §62.102, the most notable being that the individual “not have been convicted of, or be under indictment or other legal accusation for, misdemeanor theft or felony.” (Note that these restrictions are separate from the exemptions from jury service. E.g., The prospective juror is over 70 years of age, or is a student at a public or private high school. Tex. Gov’t Code §62.106).
[4] Another example of a slightly more subtle disqualification would be a “disqualifying interest.” It is possible that the prospective juror and the plaintiff are not close friends, but the plaintiff had represented the juror, as his attorney, in a legal dispute previously. Texas Cent. R.R. v. Blanton, 81 S.W. 537, 538 (Tex. App.—Fort Worth 1904, no writ).
[5] In re Cook, 356 S.W.3d 493, 495 (Tex. 2011); see also, United Scaffolding 2, at 689 (“This two-part test adequately ensures that jury verdicts are not overturned without specific and proper reasons, while still maintaining trial courts’ discretion in granting new trials.”).
[6] United Scaffolding 2, at 688-89.
[7] In re Columbia Medical Center of Las Colinas, 290 S.W.3d 204, 213 (Tex. 2009); see also, United Scaffolding 1, 315 S.W.3d at 247 (“The trial court amended its order to add three alternative rationals: …. the court of appeals found the order reasonably specific and denied the petition, with one justice dissenting”).
[8] See, United Scaffolding 2, at 689 (emphasis added).
[9] See generally, Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (even when the motion is denied, the trial court’s plenary power is extended by 30 days).
[10] E.g., In Re Whataburger Restaurants, at ¶ 3.
[11] E.g., Golden Eagle Archery v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000).
[12] In Re Whataburger Restaurants, at ¶ 7 (citing to In re Ethyl Corp., 975 S.W.2d 606, 618-19 (Tex. 1998)).
TEXAS APPELLATE & SUPREME COURT REVIEW 