Trial lawyers are usually relieved to avoid the complications of preparing and arguing a jury charge. But its replacement in a bench trial – findings of fact and conclusions of law – can be just as vexing. If prepared and used well, they can guide your way to victory and help preserve it on appeal.
The Purpose. Findings and conclusions show the appellate court that the trial court applied the right standard and found the facts necessary to support the judgment. For example, in a simple contract case, the following facts are critical:
- a valid and enforceable contract existed;
- the plaintiff performed or tendered performance;
- the defendant breached the contract; and
- the breach caused the plaintiff’s injury.
You’ll also want a finding as to the amount of damages. With those facts, the court can draw the legal conclusion that the defendant is liable to the plaintiff for breach of contract, supporting a judgment for the damages.
Exhaustive, detailed findings are not necessary. In the contract case, only the findings above are needed. You don’t, for example, need to include each detail of the story underlying the elements of your case.
Draft Them Early. As a young lawyer, I was told to draft the jury charge early in the case so that it could be used as a guide for discovery and other pre-trial work. Findings and conclusions are similarly useful to outline the elements you’ll need to prove at trial. Most federal courts and some state courts require proposed findings and conclusions to be submitted before trial.
If You Lose. To preserve your ability to challenge the judgment on appeal, always request findings of fact and conclusions of law. (And make sure you follow the detailed rules for when and how to make the request.)
If findings aren’t properly requested, the appellate court will infer from the record all findings necessary to support the judgment. The request causes the trial court to confirm, for example, that the plaintiff proved each element necessary to its claim. The court might be persuaded to refuse findings on weak or alternative claims that might support the judgment.
A request for findings and conclusions is necessary to preserve error when all or part of a case is decided by the court instead of a jury. They are permissible, but not required, in other circumstances where evidence is considered.
If You Win. The winner must prepare proposed findings and conclusions, which the court will then review and (hopefully) adopt. Be sure to include a finding in your favor on each element of any claims or affirmative defenses on which you bore the burden of proof – whatever facts are required to support the judgment in your favor. If findings are requested but not made as to a claim or defense, they cannot be implied.
Beware the Deadlines! Particularly in Texas state-court practice, the deadlines for requesting, filing, and requesting additional findings are complicated. If you’re uncertain on procedure or strategy for findings and conclusions, enlist the help of an appellate lawyer.