In the coming weeks, Dallas lawyers Leighton Durham and Kirk Pittard will devour three color-coded publications as if their practices depended on it. That’s because the 2012 Texas Pattern Jury Charges (PJC) books are to Durham and Pittard what medical journals are to physicians.
A big part of the partners’ practice is advising civil trial lawyers on the delicate art of crafting a proper jury charge — a key ingredient in any successful verdict, they say.
For that task, Pittard and Durham must master three PJC books commonly referred to by cover color. The green book addresses general negligence and intentional personal torts; the blue book deals with business, consumer, insurance and employment; and the red book focuses on malpractice, premises and products.
The red and green books are due to be released later this month, while the blue book comes out early next year.
Those books, along with separate publications addressing family and probate law and criminal law, are updated every two years by five respective State Bar of Texas committees. Each committee is comprised of about 20 lawyers and judges, appointed by the State Bar’s president, who meet for months, updating any proposed jury charge impacted by case law or statute. Their work product is crucial to Durham, Pittard, and countless trial lawyers and judges in Texas.
“It’s one of the key references we use to build proper charges,” says Durham, a partner in Kelly, Durham & Pittard, of the PJC books. “It’s a great starting point for any jury charge, even if they don’t have a pattern jury charge directly on point.”
The Bar has issued the books since 1969 to create a uniform list of suggested charges for trial courts to follow, but the job of updating the books is never finished, Pittard notes. After three decades of publication, the books have yet to address every cause of action contemplated in Texas’ civil statutes, he says.
“Crafting jury charges from case law is not always easy,” Pittard says, adding that there’s a huge risk of getting creative with jury charges. “Messing up or getting a complex instruction — that can be crucial. Anytime you have jury charge issues, those can kill a case” on appeal, Pittard says.
But while the committees have always taken pains to issue instructive, fair and accurate jury charges, in recent years they have struggled to bring uniformity among the green, red and blue books, says 1st Court of Appeals Justice Tracy Christopher, who chairs the State Bar’s PJC oversight committee. Her committee’s job is to review the work of other PJC committees and make sure they agree on common issues of law that all of the books share.
“One of the things that I’ve been working on as chair of the oversight committee is that the volumes deal with the same question in the same way,” Christopher says. “It surprised me on how the different volumes approached the same questions.”
For example, the oversight committee struggled earlier this year with the correct way to submit a gross-negligence question when a plaintiff sues a corporation and seeks to hold it responsible for the behavior of its employee, Christopher says.
The red and green books provide a jury charge on that issue with bracketed options, allowing parties to submit questions allowing either a “vice-principal” or a “manager” to be held responsible for a corporation’s actions. But the blue book committee believes it is correct to delete references to “managerial capacity” and “manager” when seeking to hold a corporation responsible for its employees’ actions, she says.
An oversight subcommittee met about how to make all three books uniform in addressing that issue, but they couldn’t reach a resolution, Christopher says.
Dan Linebaugh, a partner in Baytown’s The Linebaugh Firm, was a member of the committee that updates the green book and chaired the subcommittee that he says tried hard to resolve the vice-principal/manager inconsistency. Like all PJC committees, Linebaugh’s committee is made up of plaintiff and defense lawyers and trial and appellate judges who work together to make the PJCs in their book as accurate as possible, he says.
“You know, it’s like when two different lawyers have a difference of opinion at the courthouse,” Linebaugh says. “But one group feels strongly about it being worded one way, and the other groups feels strongly about it being worded another way.”
Brett Busby, a justice on Houston’s 14th Court of Appeals who chairs the committee that updates the blue book, says his committee can only go as far as decisions by the Texas Supreme Court or intermediate courts of appeals will allow them to when changing a longstanding PJC.
“The view of the blue book has been that all of the volumes are saying the same thing using different words,” Busby says. “It’s a narrow issue, and it’s pretty technical. The blue book feels that the definition of ‘vice principal’ already captures the definition of ‘manager’ and defines it adequately, consistent with the case law.”
Jack McGehee, a partner in Houston’s McGehee H Chang, Barnes who co-chairs the committee that updates the red book, also says they couldn’t find a solution.
“It’s not politics at play; it’s just trying to find a reasonable solution,” he says.
That distinction between vice principal and manager is important, says Rob Gilbreath, a partner in Dallas’ Hawkins Parnell Thackston & Young, who often defends businesses and their employees in a variety of tort litigation across the country.
Yet PJCs are sometimes a source of frustration to Gilbreath and his clients because Texas trial court judges rarely will look beyond the books when crafting a jury charge, he says. He also notes that the Texas Supreme Court has ruled on more than one occasion that a PJC is incorrect.
“There are a lot of cases that, due to special circumstances, that a piece of evidence comes in that could affect the outcome of the case and you need a special instruction to deal with that evidence,” Gilbreath says. “And if the judges’ attitude is that ‘If it’s not in the PJC, then it’s not in,’ then the case isn’t fairly submitted to the jury.”
That said, Gilbreath believes Texas has some of the most concise and best-written PJC books in the nation.
“In other states you have a set of very lengthy instructions, and then you have a separate verdict form. And the instructions are so long-winded and confusing that the jury is just answering the questions in a void,” Gilbreath says. “And in Texas it’s far superior. We have relatively short instructions right there with the questions.”
And there’s a good reason why trial judges refuse to deviate from the PJCs: It lessens the chances they’ll be reversed by a court of appeals for a charging error, says 14th District Judge Eric Moyé of Dallas.
“If the lawyers come to me with something that comes from the PJC, there is a high degree of certainty that issue is not going to come back to me from the court of appeals,” Moyé says. “I don’t know anybody who goes off the book. Chances are it’s going in without a single change. It doesn’t make sense for skilled lawyers and judges to reinvent the wheel, especially if it has the blessing of the Supreme Court.”
Statistics back up Moyé’s reason for not straying from the PJCs when crafting jury charges. This year, Lynne Liberato, a Houston partner in Haynes andBoone and a former State Bar president, co-authored a Houston Law Review article on the reasons for reversal in Texas’ 14 intermediate courts of appeals. Liberato found that charge errors accounted for 9 percent of the reversals in the courts of appeals between 2010 and 2011.
Those 9 percent of cases reversed for charging errors “were in areas of the law where there are no pattern jury charges or for the failure to submit a certain question,” Liberato says.
And that just lends credence to the value of the PJC books, she says.
“The pattern jury charges limit the number of reversals, because it gives the parties and the judges’ guidance,” Liberato says. “And as courts of appeals review certain jury charges, they are refined and modified by the pattern jury charge committees.”
Editor’s note: This article has been corrected to reflect Dan Linebaugh’s status on the committee that updates the green book and a subcommittee that worked to resolve an inconsistency among books.