Error preservation often determines what issues an appellate court can hear. Too often, clients, trial counsel, and even appellate counsel learn that error didn’t get preserved when it’s already too late to fix. To explore more about error preservation, Todd Smith and Jody Sanders talk with Steve Hayes, the error-preservation guru. Chances are, if you’ve attended a CLE speech on the topic, Steve gave it. In this episode, he shares his wisdom and insights and discusses error-preservation trends in appellate courts. In particular, Steve talks about the importance of using checklists to preserve error for appeal. Steve shares his experiences on this topic and the lessons he learned, so that, hopefully, you’ll have some clear error-preservation strategies laid out before you file your first pleading.
Listen to the podcast here:
Using Checklists When Preserving Error for Appeal | Steve Hayes
If you have been to a CLE, whether litigation or appellate, and heard someone speak about error preservation, odds are that person was Steve Hayes. It seems he speaks at every litigation and appellate CLE on that topic in the State of Texas. He is the guru, even though he’s going to deny that almost immediately after I let him start talking, and that’s why we wanted to have him on. There’s nobody I know that studies this as closely and keeps up with the current trends on that. He’s an amazing resource on it. We have Steve Hayes. Steve, thank you for coming to our show.
Thanks for having me. I appreciate it.
For those who don’t know you, I’m lucky I get to see you all the time here in Fort Worth and at bar stuff throughout the state. Give us a little bit about your background, where you came from and what you do now.
I grew up in a little town of McGregor about 20 miles West of Waco. I went through high school there, went to college at Austin College up in Sherman. I went to law school at Harvard, then came back to Texas. Briefed for the Texas Supreme Court for Charlie Barrow. After that, I came up to Fort Worth and worked for the old Brown Herman firm for 2 or 3 years. I was missing Central Texas. I went back to Temple to practice law there. Mary and I had gotten married by that time. Practiced law there for about ten years. By that time, Mary had decided that she had had about all of the small-town living she could stand for one lifetime. We moved to Austin for a year and I practiced for a year there with Jack Meroney, Mike Crowley, and Milton Bankston and their group, a lot of good lawyers. Some of the guys that I’d worked with at Brown Herman had split off and formed a firm, Cotten Schmidt. They got in touch with me. They had a family of litigation that they’d planned and needed some help.
They got in touch with me and asked me if I wanted to come back up and join them. At the time, it sounded like too good a deal to pass up and it turned out to be too good a deal to pass up. We relocated to Fort Worth and then I was with that firm until about 11 years ago I started this solo appellate practice on January 1st, 2009. I could probably have started it a little more in the depth of the recession at that time, but not much. My timing was good. I’ve been here with this solo practice ever since. I got involved with the State Bar Appellate Section. I should have gone back and looked this up. It was in the mid-2000s and got involved and worked on the website some with Justice Brett Busby, who was chair of the website section back then, and then stayed involved and moved up the ladder and was fortunate enough to chair the section. Before Kent Rutter and Mike Truesdale, before him and before Brett before him and then Truesdale before him.
I feel like you’ve been on every committee that the appellate section has. It seems like every time I see a committee, your name is somewhere on that list as someone who’s either done it before or is doing it now.
I’m either a sucker or an idiot, I’m not sure which. But it’s a good group to work with. When we had Kurt Kuhn give a little speech at the Section’s 30th anniversary about 3 years ago, he likened it to being the best small town in Texas. There’s a lot to that. It is a really good group, as you guys know.
I’ve always thought of you as a Fort Worth lawyer. It’s news to me that you’ve sojourned around the state so much. I’ve known your involvement in the appellate section well, and that’s all been great. Your leadership there has been stupendous.
I had one lady that I knew who was a lawyer at Naman Howell. She retired a couple of years ago. We had already moved back up here, and I called Nancy to find out something about what was going on in Waco. They had told her who was calling, she picked up the phone and she said, “Where are you now?” “I’m in Fort Worth now.” She said, “When did that happen?” The point is, I did tell people for a while that I’ve worked for every law firm in the state. That’s not true, but it did feel that way sometimes.
Another place that people see you is on social media, I know you’re on Twitter and you keep up with both the Second Court and then you have an Error Preservation blog. You’re easy to find on the web if people want to look.
Both of those things have been fun to do and don’t take a lot of extra time because all of us typically read the decisions that come out of the court of appeals where we spend most of our time and keep up with case law. Putting together a little blog doesn’t take a lot more time than doing that.
I always like hearing the reports of the local practitioners, and it helps me stay in touch with the other courts. That’s a great thing to do. Your error preservation focus is stupendous. What you share on a regular basis. We get called upon to keep trial lawyers out of trouble or save their bacon sometimes. You’re doing that for the appellate bar and then for a lot of trial lawyers too.Error preservation fights don't come up often. Only about 1 out of 5 civil cases have it. Click To Tweet
I’m happy if it helps. I figured it’s one way for me to keep current and if other people can benefit from it, that’s great too.
How did you develop that interest in error preservation specifically? I don’t know anyone who focuses on it quite the same way you do.
Part of it comes from years and years ago, Randy Roach asked me to speak on post-trial preservation at the Appellate Law 101 course. I can’t remember whether that was before or after my experience with one appeal I handled, and I wish I could remember the name of the case, but I can’t. It may have been the Giovanni case. At any rate, the losing party had brought me on to handle the appeal. I handled the appeal and I came up with a couple of novel arguments. The other side in their appellee’s brief said, “This argument, this issue was not preserved.” I thought, “Sure, it was.” I’ve polished it a little bit, but everybody knew it was there. I went back and I found out everything I had, that the trial judge had specifically mentioned some of the aspects of it. It’s like a situation all of us deal with, maybe it wasn’t quite as well-worded as we would have liked it, but I felt like it was there. I thought, “I’ll go find a case from the Second Court of Appeals where they held that error was preserved.” That’ll be my authority that, “This is all you have to do. This is as good as it has to get. We did fine.”
I went through twenty error-preservation decisions that the Second Court of Appeals had issued before I found one where they held error was preserved. I was up against the deadline and I thought, “This is good enough. I’m going to have to go with it.” I plugged it in and I used it and Justice Bob McCoy gave me a hard time about it at oral argument because it didn’t apply and it was completely different. How can you say that this saved your bacon? It fascinated me because I thought, “I can’t find but one case, I’m such a poor researcher.” This is an indictment of my abilities as a researcher. I thought, “I’ll start keeping track of error preservation decisions and then I’ll have plenty of ammunition the next time this comes up.” Lo and behold, 1 out of 20 is about as often as any court holds error was preserved. I got fascinated with it and then I was trying to study to make sure that it was better than that. No, it’s not better than that. They don’t hold that error’s preserved very often. That’s how it came to be. Necessity was the mother of this invention. Let’s put it that way.
Is that a trend that has held steady in the intermediate courts since you’ve been watching it? Is it something that changes from time to time or even court to court?
From court to court, there will be a little bit of difference, but not necessarily very much. I went back and looked at before, this is like Pam Baron’s statistics on the Supreme Court. If you ever hear Pam talk, she’ll talk about how tedious, laborious, and time-consuming it is to run stats. The last time I ran the stats on the courts of appeals for the fiscal years ending 2014, 2015, and 2016, and I may have done 2017, I can’t remember. It seems like I had four years. And they remained amazingly consistent, the courts of appeals, those four years. I ran the numbers again for the cases we’ve had so far this year. The stats, they’re within almost 1/10th of 1% of being the same as the four-year average I came up with before. The long and the short of it is these error preservation fights don’t come up often, only about 1 out of 5 civil cases have it. Only about 6% of the issues involve error preservation, but on those issues where error preservation comes up, the courts only hold that error is preserved about 6% of the time.
That’s not exactly right. It’s about 10% of the time, about 80% of the time they hold, 81%, 82% of the time, they hold error was not preserved. About 8% of the time, it’s a complaint that you can first raise on appeal, but the point is they don’t hold it’s preserved often and that’s remained amazingly consistent for the last 6 or 7 years. The other thing that’s scary that doesn’t show up, and I’d love to have the numbers on this and I’m sure there’s a way to do it, but there’s no way you’d have the time. Having spoken to the Texas Association of Appellate Court Attorneys a couple of times on error preservation at their annual meeting, and then talking to staff attorneys and justices and stuff, it’s not unusual for the staff attorneys on the various courts of appeals, on their own, to look to see if attorneys have preserved a complaint or not, even if the opposing party has not challenged it. That’s not a surprise and that’s something that you have to keep in mind. That’s one of the reasons to be proactive at the trial court level to try to figure out if you’ve got a preservation problem and certainly once you start drafting the briefs.
The other thing that’s an adjunct to that, I didn’t appreciate this until one of the cases that I handled, a pretty hard-fought case. For me, a lot of money was involved. My client lost. It involved utility and electric lines. Both parties briefed it on the merits. We had an oral argument on that briefing, the case stayed in the court of appeals for roughly a year. We got a letter from the court of appeals that said, “It looks like to us, we don’t have jurisdiction over this case because the PUC has exclusive original jurisdiction. Y’all brief that,” which would’ve been great for my client. We went and briefed it, and then we had an oral argument on that and the court of appeals decided that, in fact, PUC did have original exclusive jurisdiction and that case is going through the PUC and now the PUC’s decision is being appealed. You have to realize that when you’re dealing with courts of appeals, it’s like Scott Brister, who was my briefing attorney roommate, once said on a panel. He said, “When you’re on a Court of Appeals, you face a never-ending avalanche of cases and if you ever get behind, you will never catch up.” Especially the staff attorneys, and I’m not being critical here. This is what I would do. They are constantly on the alert for, “Do we have jurisdiction here?” Even if the parties don’t address it and here are these complaints, have those complaints been preserved? Because if not, we don’t have to deal with them, and we’re trying to move a docket. That’s an underlying current there that you need to be aware of.
I understand that from a jurisdictional standpoint. That makes a lot of sense because a court either has jurisdiction or it doesn’t. Where I get a little inflamed is when there’s what I perceive to be advocacy going on within the four walls of the court of appeals. You have a very smart staff attorney who maybe spots something that the trial lawyer in the heat of battle did not spot. And, that after-the-fact, I hate to call it second-guessing, but it kind of is, when the other side hasn’t raised the issue, that has always bothered me. I don’t have a question to come out of that, and I, too, understand that never-ending avalanche of cases if there’s something that’s glaringly obvious maybe that’s what the court staff should do. I always come back when I think of error of preservation in trials, I always come back to the jury charge. If there’s not an objection to something that’s raised, I wouldn’t have a huge problem with staff questioning that because that’s a basic thing. If it’s something that you’ve got to peel back the layers to get at it, reaching a conclusion after that the error wasn’t preserved when it hasn’t been asserted, there something seems to me to be fundamentally wrong about that.
I agree with that sentiment. At one of the speeches that I gave to TAACA, I can’t remember what I talked about, but I mentioned that to them. I said, “If the parties think this is live for whatever reason, they’ve lived with the case.” If the appellee pops up and says, “We’ve never heard about that before,” that’s one thing. But if they don’t raise it, then maybe it did come up somewhere. It’s not a surprise. I said, “The biggest thing is if you dredge up an error preservation point that nobody has raised, number one, you are putting your thumb on the scale a little bit. Number two, you’re launching out into an area without the benefit of briefing from the parties.” At the very least, you’re not having both sides presented to you. You might launch out and take a position, take a stand, and write something that quite frankly is wrong and that you wouldn’t have written. You might still find that error was not preserved, but you might approach it in an erroneous fashion that you wouldn’t have if you had a briefing from both parties in front of you. I get it. It’s scary. It’s one of those things that you have to anticipate what’s coming, or your trial lawyers do, and try to do everything you can to preserve whatever complaints you have.
It maybe put you on your heels at that point. If you’re dealing with that issue that hasn’t been raised by anyone, the first time you ever hear about it is when you either get that letter from the court of appeals, or worse yet, you get it in the opinion, or it comes up at oral argument. It deprives the parties of the chance even to develop an argument, say, that the issue is tried by consent or something like that.
Until we go in Texas to the federal system where everything ends up in the record and all the recordings and all that. It may also be that it just happened somewhere that didn’t end up in the record before the court. Maybe it was an informal charge conference and nobody thought it wasn’t preserved. It didn’t end up in the record, which is another thing I hadn’t thought about until we were talking about this.
It’s interesting and I don’t know that segues into this, but on one of the papers I wrote I ran into a case. I don’t do much federal work and never have. Apparently, the federal rule is such that generally they will not consider an issue that hasn’t been preserved. They won’t consider an issue that’s been raised for the first time on appeal, but federal appellate courts have the discretion to review an issue that’s not preserved below if it’s a purely legal question, refusal to consider it would result in a miscarriage of justice, or its proper resolution is beyond that. You look at that and you think, “Sure.” What’s interesting is that’s not the Texas rule and this was a point made, I was trying to remember who made it, at the UT State and Federal course. Jody, it may have been when Mike Hatchell and David Keltner were talking. They talked about error preservation some. There is a tendency on the part of the Supreme Court that if it wants to get to an issue, it’s going to get to an issue. If the issue’s just not preserved, maybe they pass on a particular case and say, “We’re not going to address it here.”
There was one that came up, Lloyds v. Menchaca. One of the issues was irreconcilably conflicting jury findings and there was a whole deal about, “Is this preserved? Is this not preserved? Did you have to raise it by an objection before the judge released the jury, yadda-yadda?” which is what I always tell lawyers to do. I said, “That’s what you’ve got to do. If you let the jury get away, you’ve lost that complaint.” You only had eight judges riding on that case. I can’t remember who it was that didn’t sit, but you only had eight judges. But in one of the opinions, I think it was Judge Green’s opinion who, interestingly enough, was not shown as a majority author. He said, “The absence of an objection to conflicting jury answers should not prohibit us from reaching the issue of irreconcilable conflicts in jury findings.” He didn’t say they were adopting the federal rule on preservation, but that’s kind of what they did. That’s one of those things, I wouldn’t count on it. I wouldn’t tell people, “Don’t worry about preserving the complaints because the Supreme Court likes your case, they’re going to take it anyway.” That seems like a pretty foolhardy way to go. But if you’ve got a strong complaint and it really does affect the jurisprudence of the state, and even if you’ve got a preservation problem with it, I won’t say I’d hitch my wagon to it, but you’d still have to think about, you know, do I want to just abandon it because the Supreme Court might want to write on this. They might. It makes it difficult to know.
There are a couple of ways of looking at that from an advocate’s perspective. What you’re suggesting, Steve, is that there may be an issue that’s questionable whether it was preserved or not. But if you’re at the Supreme Court level, are you going to withhold that issue, having concluded that there’s a preservation problem with it? It seems to me, if it’s a close call, then you should assert it if you’re coming at it from a petitioner’s standpoint.
If it’s a strong enough complaint. There’s an old story. I used to keep track of or keep up with car racing. That’s a long story, too. You could talk to some of these old mechanics that were heavily involved in drag racing and especially top fuel dragsters and all that stuff. They would all have their fuel mixtures and they would, in the preliminary races and leading up to the final race, they would carefully titrate all this stuff. You can get to keep the engine, and in the last race it’s like, “Do we have any left? How much we have? Pour it in. Cap it off. It’s good to go. You bet.” There’s some of that. If you’ve got that strong a point, it might not hurt to bring it in.
Looking at it from the other side, certainly, if you’re a respondent, say, and you’ve got an issue where the petitioner is raising a point that you think is not preserved. That’s one of the first things to feature in your response, right? You want to tell the Court, “This is not the case. You may want to handle this issue in a future case, but this isn’t the one.” I have seen that brought up many times in responses and it’s probably good advocacy to do that.
That’s one of the first pillars of affirmance.
It’s interesting though. It seems like in the last few years overall, the Texas Supreme Court has clearly expressed a preference in deciding things on the merits. In the intermediate courts, you may not have gotten that much leeway. I wonder if that’s going to be a trend that pushes down into the intermediate courts.
I don’t know.
I don’t either. You mentioned Menchaca and I think about United Scaffolding v. Levine and some of those cases that came out where the courts are a lot more willing to find that something either presents a legal question or a question they can review without a lot of preservation, that you wouldn’t think under some of the old, particularly charge error preservation cases, would have passed muster. Lord knows we’ve got some archaic charged preservation rules to begin with. That’s a whole other episode by itself.
Every time I speak, I think, “I’m gonna go do this.” I’ve always intended to go back and look at the United Scaffolding case where the court went off on it. The issue was, or that the plaintiff got a jury finding on negligence, but there was no jury finding on premises liability. And it gets to the Supreme Court and, I’m not going to do justice to the opinions but, the majority said, “This is a premises liability case. Your guy slipped and fell on the scaffolding. You, the plaintiff, didn’t get a premises finding. Therefore, the finding you got, which was just negligence, is immaterial.” That was preserved in the post-trial motions. And then Justice Boyd wrote his dissent where he said, “This is not right. Premises is a subset of negligence. If there’s a lack of instruction, that’s the defendant’s fault, yadda-yadda.” What I’ve always intended to do, and I’ve not done it, is to go back and look at the post-trial motions. Somewhere in the back of my mind, the Supreme Court went off on, this is an immaterial finding. Those complaints can be preserved in the post-trial timeframe, and the defendant did it here.
I’ve intended to go back and look to see how specific the post-trial motion was. What did it say? Did it say, “This is an immaterial finding because you had to have a premises finding and all you got was negligence,” or did it just say, “The finding is immaterial?” Or did it say, “There’s insufficient evidence to support the finding?” I’ve always intended to go back and look and see because that’s not, from a preserving error standpoint, it’s not scary. The person that whole aspect of the case is scary to is the person who got the jury finding. The other side could sit back and say nothing. You get whatever findings you get. Post-trial and the jury is gone. The other side says, “By the way, that’s a nice question.”Before you file a lawsuit or you file your answer, sit down and run it by some checklists. Click To Tweet
Just doesn’t seem right.
That was the case where the court said, “You don’t have to forfeit a winning hand.” That’s a heck of a sentence, which is interesting. It’s lay behind the log and wait for them to walk into error.
When you start thinking about it, if legal sufficiency, immateriality, and legal questions can first be raised post-trial in a jury trial, what is it that a creative lawyer can’t structure as one of those three arguments? There are things, but there’s a lot of room for creativity, of course. If you’re in our position and you get called in for the first-time post-trial, and you’ve got this truncated period of time to come up with ideas, you might not be able to think of everything but still, it’s a scary situation to me. The other one that I would point out, and this is an issue that’s out there that I think the Supreme Court needs to deal with, having to do with the segregation of attorney’s fees, proving them up. It seems like there is a case in the jury trial setting where that makes it clear, I can’t remember you have to raise it when the fee testimony is offered or if you can wait to post-trial to do it.
But the courts of appeals are all over the lot on bench trials in terms of when you first have to raise the complaint about the failure to segregate fees. It ranges all the way from having to do it when the evidence is offered, to you can do it post-trial, to you can do it until the trial judge signs the judgment. There’s been a case out of the Corpus court and I think a concurrence by Justice Whitehill out of the Dallas court that said, “The failure to segregate is really a legal sufficiency claim, and because we are dealing with bench trials here in terms of the attorney’s fees tried to the court, that’s a complaint you can raise for the first time on appeal.” That’s what it is. That’s when you can raise it first.
Maybe the reason for that though, because that is a confusing analysis that the courts go through because in any other case, they would be saying, “No legally sufficient evidence.” You, therefore, are looking at a rendition, take nothing judgment situation, but the appellate courts so far have resisted pouring out the lawyers on attorney’s fees. They’ll give multiple chances in part because the law on segregation, maybe it’s clearer than it was, but I don’t know.
It’s certainly more stringent.
I don’t know what the answer is on that. Right now, the answer is, “Go try to prove up whatever you want to prove up on fees.” And the worst thing that ever happens to you is you have to try fees again.
As far as I know, that’s true. As a matter of fact, that one Dallas case where Whitehill wrote the concurrence, a guy that I was helping some, and he used to office here in the building down the hall from me, was the lawyer on that case. What was interesting was both sides, and I won’t do justice to the facts of the case because it’s been too long, but it involved a guardianship fight and a probate fight. Both sides were trying to get all their fees and both sides showed up at the part of the trial where they’re going to prove up their fees. Both sides testified that all their fees were recoverable. None had to be segregated out. When the trial judge sent out a letter that said, “I’m ruling for Joe Blow and going to grant all their fees,” then the other side filed an objection and said, “Wait a minute. Didn’t segregate.” It’s like, “What?” It was after that, that the trial judge signed the judgment. Once the court of appeals handed down its decision, then the case went back down and they had to try the fees again. That’s been done now, and I can’t remember exactly what the status of the case is now. It does seem like we’re spending an awful lot of time back and forth and up and down. You’re right. They’re not pouring the attorneys out as far as I know.
What are some traps that attorneys find themselves falling into, and trial courts, on this stuff?
You could go on forever on that. What happens is something that I said earlier. We don’t anticipate what’s coming. That’s the biggest thing, and this is a good time to mention those two checklists. In putting this stuff together, I’ve always tried to think of, “Is there something else I can bring to the table that helps people get their arms around it?” There are tons of good papers out there on error preservation. One of the things I focused on, on a paper 2 or 3 years ago which I’ve kept updated, is we don’t have many error preservation fights but when we do, courts almost always hold error was not preserved. Maybe it’s worth looking at the complaints that people, where the most fights occur. Whatever we’re doing wrong, those are the ones that we’re doing it wrong the most on. I looked at the points or the complaints that comprised 50% of the error preservation docket and that list has remained fairly stable over the years. One year, 1 or 2 complaints toward the bottom of the list might drop off and some more, but by and large, it remains fairly consistent.
I don’t have the stuff here in front of me to know what’s at the top of the list, but on my website, there’s a paper that’s called Using Error Preservation to Sell Your Case. It will have the topics ranked in terms of where the most problems come up. Parties spend, it seems like, a lot of time on appeal. There are a lot of evidentiary issues that come up where that’s where the fight is, and overwhelmingly the courts of appeals find that error, that a party didn’t preserve its complaint about error and about evidence. With an exception I’m about to mention, if you’ve got a complaint about evidence and there’s a potential preservation problem, you might want to give a lot of thought to whether you spend any time raising that complaint on appeal. Not only do you have to show you preserved that complaint, but you’ve also got to show that the evidentiary error made a difference in the judgment. That is hard to do.
Michael Massengale, when he was a judge on one of the Houston courts, gave a tag-team presentation, 5 or 6 years ago or something. That was one of the points he made. You’ve got to prove that this evidentiary problem is so severe that the judgment that came about wouldn’t have come about if this evidentiary problem hadn’t been there. He said, “There’s not much evidence that rises to that level.” The one exception to that has to do with affidavits, which come up most of the time in the summary judgment practice but come up in other contexts as well. It’s interesting that if you can convince the court that you preserved your complaint about an affidavit, the likelihood of success of reversal on those seems to be a little greater because those tend to fall into the category of, “Did they have personal knowledge? Is it contradictory, yadda-yadda?” Does anything about the affidavit get to stay in, not one little factoid, but does anything get to stay in?
I would commend your checklists to anyone doing what we do in this state or trial lawyers or anybody who’s got any concerns about error preservation because you have boiled it down to the most fundamental elements and even pointed out some conflicts, which is important. For example, you mentioned the conflict in preserving error on segregation in a bench trial, which can cause all kinds of problems. It depends a lot on what court you’re in. This kind of thing is great. We ask our guests to provide a tip, but you provided a handy tip. Think long and hard about whether you’re going to have your appeal turn on an evidentiary ruling. We’ve talked about that here on the show before, and people forget. They think, “The trial judge was wrong. Surely I can do something about this.” That harmless error rule is a killer.
It really is.
The two checklists are this: One is the list of, “Here’s the most frequent error preservation categories.” The second checklist, “Here’s stuff that your opponent can raise for the first time either on appeal or after it’s too late for you to do anything with it.” My suggestion to lawyers is that before you file a lawsuit or you file your answer and when anything important happens in your lawsuit, if you’ll sit down and run your lawsuit by these checklists. Are any of these problems out there potentially? If they are, well go fix them. You’ve at least done that much. By doing that, you’ve tried to eliminate surprises, and that’s the key.
Anybody ought to keep this in mind anyway to avoid getting tripped up by something that, you shouldn’t rely on your memory to guide you through some of these steps. Especially as we get older and we’re more experienced in our practice, it’s a little riskier to rely on memory.
Steve, you mentioned your website. What is your website address?
It’s www.SteveHayesLaw.com. One of the pages on the website is devoted to error preservation and you’ll see a button for that, and that’s where all the papers are gathered.
You post on Twitter as well. What’s your Twitter handle?
I knew you’d asked me that and I don’t have a clue. It’s like @SKnowlesHayes. If you go to the Error Preservation page, that Twitter link is there and you can click on it and that you can follow there.
Thank you, Steve. This has been great. We really appreciate you coming.