In the law, “waiver” is defined as the voluntary relinquishment of a known right. Lawyers waive defenses and legal argument in courts more often than you might think. Sometimes it’s intentional, and sometimes it’s not. Sometimes it’s the result of the lawyer’s mistake. A lawyer forgets to raise a defense, or simply overlooks one.
Since a waiver can result from a lawyer’s mistake, the last thing a lawyer ever wants to hear from his opponent in court is that he waived an argument. I was once presenting oral argument in front of a court of appeals, and my opponent began arguing that I waived an argument. When I responded that he in fact had waived his waiver argument by not raising it in the trial court, he got this “deer in the headlights” look. He was stunned. I swear, I thought the guy was going to soil himself right there in the middle of the courtroom.
Much to the dismay of many out-of-state defendants, it is pretty easy to inadvertently waive a challenge to a Texas court’s personal jurisdiction. Unlike subject matter jurisdiction, which cannot be waived, personal jurisdiction (jurisdiction over the defendant) can be waived. And it can happen accidently. In fact, that is usually how it occurs. The defendant or his lawyer files a pleading or motion before filing the special appearance contesting jurisdiction. That will result in a waiver. Or the defendant makes an “appearance” before judgment which violates the rule pertaining to special appearances. That can also result in a waiver of a challenge to personal jurisdiction. Basically, any action by the defendant or his lawyer to invoke the trial court’s judgment on a question other than the court’s jurisdiction, or to seek affirmative action or relief from the court, can potentially result in a waiver.
This is the kind of stuff that keeps lawyers awake at night. Have I done something that might actually hurt my client, when all I’m trying to do is help them? It doesn’t have to be that way. Knowing what actions can constitute a waiver, and what actions will not, is the key. A Texas lawyer experienced in the area of personal jurisdiction knows this minefield and how to safely maneuver through it. He can make sure you don’t “waive” goodbye to your jurisdictional challenge.
Written By: Alex Beard