Background Image
Previous Page  20 / 66 Next Page
Information
Show Menu
Previous Page 20 / 66 Next Page
Page Background

20

Mixed questions

can be tricky

and often

require

subjective

and normative

judgments by the

trial court.

Justifying the Ruling:

How to Draft Clear and Effective Findings

Reprinted with permission of the Texas Bar Journal

1

By Douglas K. Norman

2

O

ne problem that continues to plague the bench and bar

is that of reducing a trial court’s ruling to a set of discrete

factual findings that can easily be reviewed on appeal.

We often struggle with the difference between a “finding

of fact” and a “conclusion of law.” The distinction is not

merely academic, as the degree of appellate deference is near absolute

for findings of fact and zero for conclusions of law.

Categorizing Findings

The following is my attempt to categorize findings that could be made in connection with a bench-

tried issue in a criminal case, though they could also apply to most civil findings. An example of each

is provided after the categorization explanation.

Recitations of the Record

These can be seen from the record and are beyond dispute. They are often included upfront

in findings and conclusions to aid the court by placing the issues in context and setting up the

true findings of fact and their

significance.

“The defendant pled ‘guilty’

to count one and ‘not guilty’ to

counts two and three.”

Findings of Fact From Direct

Evidence

These are the meat of the

findings of fact and generally

reflect the trial court’s

credibility findings concerning

witness testimony.

“The court finds credible

officer Jones’s testimony at the

suppression hearing that he

saw the defendant carrying a

knife in his hand.”