Helping Trial Lawyers Navigate the Appellate System

How I Learned to Stop Worrying and Love Formal Bills of Exception

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Appellate lawyers are the legal equivalent of a parent that you call to help navigate life’s uncertainties. In action, this means that appellate lawyers receive phone calls regarding obscure areas of law or rarely utilized procedures. The parent comparison suffers in that, unlike answering many parental questions, even well-seasoned appellate lawyers may have to research the question more deeply before dispensing advice. But either way, as parents or appellate lawyers, we know our input is important and we try to provide the best answer that we can.

Bill of Exception v. Offer of Proof

In that vein, lawyers have recently contacted me to ask about filing formal bills of exception. A formal bill of exception is a procedural device contained in Texas Rule of Civil Procedure 33.2. Like offers of proof, the Rule helps parties preserve, and demonstrate, harmful error by allowing them to supplement the record. Unlike offers of proof, parties file formal bills of exception when their trials are completed. After studying Rule 33.2 and making numerous inquiries, I realized that many lawyers have never filed a formal bill of exception. I also realized that many commentators merely recite the Rule’s language without discussing any gray areas or supplying insight into the Rule’s contours. Naturally, because many have not utilized Rule 33.2 and that the Rule’s plain language does not provide all the answers, there appears to be some confusion regarding formal bills of exception.

This confusion manifests itself on the internet. A brief internet search reveals that some commentators have either stated or implied that formal bills of exception are merely recitals of something that happened during the trial, but was not reflected in the record. They provide examples like a court reporter who did not transcribe a relevant exchange during the trial.

While a blog post is not a lengthy enough medium to truly demystify formal bills of exception, I’ll at least endeavor to clarify one point. A party may use a formal bill of exception to submit excluded evidence to supplement the record.

While a party would be better served by making an offer of proof during the trial, as a last resort, parties should utilize formal bills of exception. They should do so to preserve error and to provide an appellate court the means to evaluate whether the trial court erred by excluding the evidence and whether the error was harmful.

Image courtesy of Flickr by Bill Smith.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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