Dallas Bar Association
HEADNOTES May 2015 Volume 40 Number 5
DBA Hosts Mock Voir Dire
Focus
Focus Appellate and Criminal Law
Appellate & Criminal Law
The Review of New Trial Orders on Appeal by Thad D. Spalding and Kirk L. Pittard
Thank you to the volunteers who helped make the Law Day Committee’s Mock Voir Dire a success. Held at the George Allen Courthouse on April 10 for more than 200 Dallas ISD students, the event addressed the Magna Carta and the Rule of Law. Special thanks to Law Day Committee Chair Mandy Childs, who organized the event.
Focus
Appellate & Criminal Law
“Take Five” – A Guide to Invoking the Fifth Amendment in Civil Cases by Bill Mateja and Mike Nammar
Written by Paul Desmond in the key of E-flat minor and performed by the Dave Brubeck Quartet using a funky quintuple (5/4) time, “Take Five” is and was the biggest selling jazz single of all time. But, it is also slang for exercising one’s Fifth Amendment privilege against self-incrimination. Because many civil lawyers ask when and how to invoke the privilege, we thought we would take a stab at answering some of the not-so-obvious questions that arise. How do I know when my client can take five? When your client “reasonably believes” the disclosure “could be used in a criminal prosecution or could lead to other evidence that might be so used.” The critical word here is “reasonably.” Disclosures that would be of no use to, or could not be used by, prosecutors (e.g., statute of limitations) may not be shielded by the Fifth Amendment. Does my client actually have to be guilty of the conduct at issue? No, the privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. Can my client take five outside of a court proceeding? Yes, your client can assert it in a wide variety of proceedings such as administrative, regulatory and investigatory proceedings (such as a grand jury). I’m worried about the adverse inference which flows from my client taking five, is
there any way around this? Possibly. Courts often (but not always) stay civil cases until the parallel criminal investigation or case is concluded. Colombo v. Bd. of Educ. for the Clifton Sch. Dist. (D.N.J. 2011); S.E.C. v. Alexander (N.D. Cal. 2010). Alternatively, you might consider asking the court to issue a protective order prohibiting the use of your client’s responses in any future criminal proceedings. United States v. Kordel (1970); Martindell v. International Tel. (2d Cir. 1979). The use of a protective order is risky because some courts have held that protective orders do not preclude evidence from being produced in response to a grand jury subpoena. My client received a subpoena for records. Can she take five? Is your client an individual or a business entity? If your client is an individual, yes, generally. But, if your client is a business entity, no. The Fifth Amendment protects an individual from being compelled to selfselect or produce documents if, in doing so, the witness’s mental processes would be revealed and incrimination might result. The act of producing not only authenticates the document, but also establishes its existence, the witness’s possession and the belief that the document is responsive to a request. Even if the document is located at the business, the document might still be personal to an employee of the business thereby shielding production. Courts typically look at the totality of the circumstances continued on page 10
In 2009, for the first time in Texas history, the Texas Supreme Court allowed the review of new trial orders by mandamus. Since then, mandamus review has expanded to include merits-based review of the reasons given for the new trial. The order must be specific. No longer can new trial orders be premised solely “in the interest of justice.” See In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 213 (Tex. 2009). The order must provide a reasonably specific explanation of the court’s reasons for setting aside a jury verdict. Doing so “assur[es] the parties that the jury’s decision was set aside only after careful thought and for valid reasons,” not simply because the trial court substituted its judgment for that of the jury. In re United Scaffolding, Inc., 377 S.W.3d 685, 688 (Tex. 2012). How specific? The order need not include a “detailed catalog of the evidence” but must provide “a cogent and reasonably specific explanation of the reasoning that led the court to conclude that a new trial was warranted.” The stated reason must be: (1) legally appropriate; and (2) “specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather derived the articulated reasons from the particular facts and circumstances of the case at hand.” “[M]ere recitation of a legal standard, such as a statement that a finding is against the great weight and preponderance of the evidence, will not suffice.” There must be some indication “the trial judge considered the specific facts and circumstances of the case” and should “explain how the evidence (or lack of evidence) undermines the jury’s findings.” Merits-based review. Shortly after imposing the specificity requirement, the Texas Supreme Court expanded mandamus review further, allowing for the meritsbased review of the new trial order. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 758 (Tex. 2013). “Simply articulating understandable, reasonably specific, and
legally appropriate reasons is not enough; the reasons must be valid and correct.” Standard of merits-based review? Mandamus relief is considered an extraordinary remedy. Thus, a clear abuse of discretion standard applies to mandamus review, which gives some deference to the trial court’s discretion. And trial judges are generally afforded considerable discretion in ordering new trials. In fact, the Texas Supreme Court notes that “in considering … what level of review [new trial orders are] subject to, we must both afford jury verdicts appropriate regard and respect trial courts’ significant discretion in these matters.” But respect for that discretion may get lost in translation. For instance, where the new trial order is based on the factual sufficiency of the evidence, some courts apply the same standard of review that applies to a traditional appeal. To review the order under the traditional mandamus standard, one court reasons, would leave the court no practical ability to review new trial orders based on factual sufficiency. This may be true, but does it warrant ignoring the traditional mandamus standard of review altogether? After all, if a new trial order is only subject to review by mandamus, yet that review can be conducted under a traditional appellate standard, mandamus relief will cease to be the extraordinary remedy it was intended to be. Not all new trial orders are reviewable. Orders granting a new trial following a default judgment are not. Neither are new trial orders following a bench trial. This relatively new mandamus process is rapidly evolving. One court has remarked that the Texas Supreme Court has “provided little guidance” in how the review is to be conducted. Courts and practitioners will no doubt continue to wrestle with the answer to such questions. Is the mandamus “clear abuse of discretion” standard in the new trial context a thing of the past? HN Only time will tell. Thad Spalding and Kirk Pittard are partners with Kelly, Durham & Pittard, LLP. Thad can be reached at tspalding@ texasappeals.com and Kirk at kpittard@texasappeals.com.
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