Trial Brief in Texas

What Is a Trial Brief?

Background

A trial brief is an informative writing to the court concerning the law on a particular issue, and provided in support of motions to include or exclude evidence presented at trial. (See, e.g., Crowe v. Fred C. Kroeger Sons (1971) 468 S.W.2d 507, 510 [“Plaintiffs contend that such testimony goes 'to the very crux of proof of mutual rescission.' Without citing any authority in their original brief in support thereof, plaintiffs also contend that the general rule excluding offers of compromise (see 24 Tex.Jur.2d, Evidence, § 627, pp. 194 — 196) must be subordinated to some undefined but overriding rule 'in a case where essential elements of proving mutual rescission are the acts and conduct and dealings between the parties.' In their original brief, plaintiffs cited only one authority in support of their first point: Marsh v. Orville Carr Associates, Inc., 433 S.W.2d 928 (Tex.Civ.App. — San Antonio, 1968, error ref. n.r.e.), and particularly the quotations from 2 Black Rescission and Cancellation, § 528, p. 1244, found at p. 931.”)

How to Structure the Motion

As demonstrated in Crowe v. Fred C. Kroeger Sons, supra, a trial brief must provide authoritative cites upon which the arguments for the inclusion or exclusion of evidence is based. A brief is a tool used to highlight for the court the relevant, authroitaive law in connection with the issue at hand. (Id.)

Although the structure of briefs may vary, generally, the following sections should be included in order for the court to make a determination on the matter.

The Sections are:

Summary of the Issue(s);
Facts of the case;
Supporting case law and authorites
Arguments; and
Conclusion

(See, e.g., 2019 North Texas Bench Book, Dallas County Courts, Sec 2.09 — Brief Requirements — stating:

“Your most favorable issues should be briefed first. Subheadings are encouraged. If deposition testimony is required, attach only the relevant parts of the deposition. The language needing to be emphasized should be quoted in the body of the brief. If you are relying heavily on a case, the case should be provided to the Court with the relevant provisions highlighted. Opposing Counsel should receive a copy reflecting the highlighted provisions.”) (Id.)

The Court’s Decision

“If the proceeding's nature, the trial court's order, the party's briefs, or other indications show that an evidentiary hearing took place in open court, then a complaining party must present a record of that hearing to establish harmful error. But otherwise, appellate courts should presume that pretrial hearings are non-evidentiary, and that the trial court considered only the evidence filed with the clerk.” (Michiana Easy Livin' Country v. Holten (2005) 168 S.W.3d 777, 783.)

A brief arguing for the exclusion of inflammatory evidence must be considered as part of the record for appellate review. (Coastal Oil v. Garza Energy Trust (2008) 268 S.W.3d 1, 47 [“Coastal moved for [the exclusion of a document] prior to trial in a separate trial brief as well as during trial, yet the trial court admitted it. The offensive sentence referencing "illiterate Mexicans," along with most of the rest of the memorandum, was read to the jury.”]) In Coastal, the court recognized, “[p]araphrasing what [it] said in General Motors Corp. v. Iracheta (2005) 161 S.W.3d 462, 472, [that] the harm of this evidence is manifest... The memorandum was intended to and did inject racial prejudice into the trial.” (Coastal Oil, at 49.)