TXI Transportation Co. v. Hughes--How To Preserve "Harm"
In a prior post, I suggested that if the practice of law were a high school, then appellate lawyers are the chess club. This post draws another, equally compelling parallel:
If the practice of law is the world of sport, then trial lawyers ought to be soccer players. Instead, many of them act like NFL football players, and they are doing themselves no favors.
After the jump, see why trial lawyers who want to succeed on appeal need to be more like soccer players by "preserving harm"* in addition to preserving error.
On March 12, the Supreme Court of Texas released TXI Transportation Co. v. Hughes. Among the issues the Court had to decide was whether admitting evidence and argument concerning the defendant's immigration status was harmful error. If harmful error is the issue before the Court, it is better for a trial lawyer to make like a European soccer player than to take on the ethos of the NFL. Here's what I mean:
Play Futboll, Not Football
If you've ever watched a European "futboll" match, then you know what happens if the player in possession of the ball is touched with so much as a feather. He immediately cries out in pain, flails his every limb, and sprawls on the turf clutching his knee as if he's just been cut down by a Marine Corps sniper. When the referee sees his sorry state, play is stopped, a penalty awarded, and miraculously, the wounded player recovers and plays on.
In contrast, a wide receiver in the NFL goes over the top and stretches out in an effort to catch the pass and collides in free flight with a linebacker or free safety with the force of an automobile collision. He spins 720 degrees and crashes to the turf, but jumps up an instant later as if to say, "'tis but a scratch," even if it is not true. Worse yet (from an appellate perspective) is the NFL Quarterback who runs out of bounds or slides feet first to avoid getting hit at all.
On appeal, I want my trial lawyers to have created the appearance of being cut down by Marine snipers, not (heaven forbid) saying on the record that all is well or even thanking the trial judge for overruling their terse objections.
The Harmful Error Standard
The appellant's job is to establish harmful error. And the Court in TXI recognized that harmful error is not "subject to precise measurement," but rather is "a matter of judgment." It is the good trial lawyer's job to influence that judgment by preserving harm, not just a preserving error.*
According to TXI, a court looking for harmful error is to evaluate:
- the whole case from voir dire to closing
- the state of the evidence
- the strength and weakness of the case, and
- the verdict
In TXI the petitioner carried that burden with each part of the equation:
- Through the power of repeated quotation, which the court later adopted, the petitioner successfully portrayed the evidence as infecting every part of the trial.
- The state of the evidence, as found by the court, invoked animus based upon race or national origin.
- The evidence impacted a hotly-contested issue in which the jury had to decide whom to believe.
- The broad form jury submission, given over the petitioner's objection, allowed the jury to use the inadmissible evidence in an improper way rather than restricting their discretion.
Use Your Objections To Establish Harm
As an appellate lawyer, one always hopes (sometimes in vain) that the trial lawyer will make some type of complaint or objection and get some type of ruling. If they do you have a fighting chance. How much better if your trial lawyers are magnificently and repeatedly shot from the saddle in cold blood by a trial judge who seems heedless to their pleas for justice? That is preserving harm.
Compare:
Objection, relevance and improper character evidence under Rule 404(b).
to
[At the Bench] Your honor, we object that this is improper character evidence under Rule 404(b) and is irrelevant and unfairly prejudicial. The record in this case is hotly contested and the outcome depends upon who the jury believes. This evidence is calculated to create improper animus against my client and that's the very reason the evidence is being offered. The [improper inference] has been a theme of counsel's case. In voir dire, counsel argued [. . . . ] and again in opening statements counsel said [ . . . . ] This topic has come up with [NUMBER] witnesses and I feel safe in predicting that counsel will return again and again to the topic in closing argument. Allowing this type of evidence and argument is fundamentally unfair to my client and is tainting the entire trial.
Both preserve error. One preserves harm as well.
Take Away from TXI Transportation v. Hughes
- Even where the harm might seem obvious, it is important to show on the record how you are being harmed
- Emphasize the improper inference that can be drawn from the evidence
- Emphasize how often opposing counsel asks for that inference to be drawn
- Emphasize how the case turns on the improper inference
It might feel a little like European soccer theatrics. and if you don't have the facts to support it, it would be. But if the facts support such an inference of harm, you have to get that harm into the Appellate Record. Because if it's not in there, it just didn't happen.
*NOTE: one of my colleagues gave a great presentation at a CLE some years ago on "preserving harm," and I cannot remember who it was. If it was you, or if you know who it was, leave me a comment so I can give proper credit for a great concept.
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