Anatomy of a Texas Jury Trial

Texas is unique in that, in a divorce or custody trial, either party can request that a jury decide issues of:

• Conservatorship (sole v. joint; which parent has the right to determine the primary residence)
• Geographic restriction
• Valuation of property
• Characterization of property (separate v. community)
• Reimbursement claims
• Fraud/Reconstitution claims
• Other torts

Lawyers often advise litigants to be wary before making a jury demand. Many attorneys feel that jury trials are difficult and excessively complicated. We do not find this to be the case. Yes, a jury trial does have a few more steps and involves trying the case to twelve people (six in county court) rather than a single judge. However, once you’ve done a few, there is nothing complicated about them.

 

Step #1 Pretrial

Most counties, like Travis County, require specific pre-jury-trial procedures. Others, like Fort Bend County, have no specific rules on pretrial procedures. And some, like Harris County, have similar pretrial procedures for both jury and bench trials.

Before trial, the Court is most likely going to require that the parties exchange exhibit lists and witness lists. If witnesses are going to testify through deposition testimony, it is typical to require that lawyers identify what deposition testimony is going to be used and any objections to that testimony. Lawyers are also usually required to attempt to work out objections to any exhibits before the trial starts to avoid arguments about exhibits in front of the jury.

A motion-in-limine is a motion requesting that the Court order that certain information not be presented in front of the jury absent Court permission. For example, if the case is a modification suit, it would be typical for lawyers to argue that the Court should enter a limine order prohibiting evidence concerning anything that happened prior to the order at issue. A limine order does not necessarily mean that the information will not come into evidence. It simply means that the lawyers must approach the bench to ask for permission to present the evidence outside the earshot of the jury. A strong limine order could affect opening statements and have an effect on the presentation of evidence. A good lawyer will really think about what he or she believes should be precluded before the trial starts, and craft a precise and persuasive motion in limine well before trial.

Ultimately, a jury will be given a charge at the end of the case explaining to them their duties and posing the question they are to decide (e.g. which parent should have the right to determine the primary residence). How questions are posed to the juries can have significant impacts on their decisions, so good lawyers will pay attention to every detail in a charge. A jury charge is not finalized until the official charge conference which takes place after both sides have rested, but before closing arguments. However, while the charge may change, most courts require lawyers to exchange their proposed jury charges before trial starts. That way, the court will be aware of issues that may come up in the trial and in the charge conference.

If one party has designated an expert the other party believes to be unqualified, that party can file what is called a Daubert challenge. Some local rules require that challenges be filed before trial (although whether or not a party can be deemed to have waived a challenge is questionable).

Most judges conduct pretrial hearings the week before jury trials. Some courts, like Travis County, conduct pretrial hearings the morning of the trial. At pretrial hearings, the court will hear motions in limine. The court may also begin to have an informal charge conference to discuss differences in the proposed jury charge. Finally, the court will typically hear any Daubert challenges.

After pretrial, lawyers conduct jury selection. Prior to the trial, citizens of the county in which the trial is conducted will receive a jury summons requiring them to appear for jury selection. Prior to selection, potential jurors will fill out information about themselves such as age, sex, ethnicity, religion, marital status, etc.

Potential jurors compose what is called a jury panel. A typical panel is 45 potential jurors. A large panel can go up to 60 jurors. It is uncommon to have more than 60 jurors, but it is possible. Before the potential jurors show up, the lawyers will be given cards with information describing potential jurors. Typically, a judge will give lawyers 30 minutes to an hour to review jury cards. At this point, good lawyers will begin to analyze potential jurors and decide whether or not they want them on the jury.

The potential jurors will be given number assignments. As explained below, jurors with lower numbers are more likely to get on a jury. Lawyers have a right to do what is called a “shuffle.” This means that lawyers can request that potential jurors be re-numbered. A lawyer may want to use a shuffle if he or she notices that the jurors with lower numbers appear to be unfavorable and/or the jurors with higher numbers appear to be more favorable. A shuffle can only be done once, and either side has a right to request it.

Once the 45-60 potential jurors arrive, they will all be given cards with an assigned number and seated accordingly. At this point, voire dire begins. Voire dire is the process in which both lawyers are allowed to ask potential jurors questions about their backgrounds. The ultimate goal is for the lawyers to find out whether or not jurors have any biases. At the end of voire dire, lawyers have an opportunity to use strikes for cause and peremptory strikes to influence the composition of the jury.

A strike for cause is a request that a juror be excused from the panel because of a bias he or she exhibits. For example, in a custody case, if a potential juror says that he believes mothers should always get custody, he may be struck for cause because he has a bias. Or for example, if a potential juror feels that the court system favors women, he may be struck for cause because of a bias. There are lots of reasons why potential jurors can be struck for cause. There is no limit on the number of strikes for cause a lawyer can use.

A peremptory strike is one a lawyer can use for any reason at all (except racial bias) without citing a justification. In district court, both sides get six preemptory strikes. In county court, both sides get three. During voire dire, lawyers look for biased jurors so they can use strikes for cause. Lawyers are also looking for background information that may indicate a favorable or unfavorable juror. Questions to jurors must be general; they cannot be what are called “commitment” questions. For example, if a trial is about a mother wanting to lift a geographic restriction so she can take a job out of state, the lawyer cannot ask “who here thinks it is a bad idea for a mother to move just for a job opportunity?” The lawyer could ask, though, “who here grew up with parents in two different states?” See the difference? At the conclusion of voire dire, the court will hear arguments about strikes for cause and the judge may inquire further into the biases of potential jurors. Then, the judge will ask both sides for their peremptory strikes. Typically, a judge will give the lawyers 5-10 minutes to come up with their peremptory strikes. Once the judge has ruled on all the strikes for cause and received the peremptory strikes, jury selection will be finalized. The judge will begin with juror number one and, excluding those jurors who have been struck, take the first twelve (or six in county courts), potential jurors. Sometimes the judge will also choose an alternate, particularly if the trial is long. At that point, the judge will read out the numbers of those who made the jury panel, and excuse the rest. The judge will then swear in the jury and provide basic instructions.

Step #3 Trial

A jury trial proceeds in the same manner as a bench trial with few differences.

Just like a trial to the bench, lawyers make opening statements to the jury. The petitioner (who filed first) gets to make the first opening statement. The respondent can either make an opening statement afterward or reserve. Most lawyers make an opening statement after the petitioner’s opening statement.

After opening statements, the petitioner gets to introduce his or her evidence. The respondent can question witnesses the petitioner calls and introduce exhibits through those witnesses. However, the petitioner decides which witnesses get called and in what order. At the conclusion of the petitioner’s case in chief, the petitioner will rest.

If the petitioner has the burden of proof on issues, the respondent has the opportunity to move for a directed verdict at the end of the petitioner’s case in chief. The respondent may do this if he or she feels that the petitioner did not provide enough evidence that a reasonable jury could rule in the petitioner’s favor. If granted, this would take the issue away from the jury as a matter of law and the judge would deny the relief granted before the jury gets the issue. Directed verdicts are rare, but an important tool to understand nonetheless.

Once the petitioner rests, it is the respondent’s turn to make his or her case. The respondent can call his or her own witnesses and introduce additional exhibits. At the conclusion of the respondent’s case in chief, the respondent will rest and the petitioner can move for directed verdict as well if appropriate.

After the respondent rests, the petitioner can put on rebuttal evidence. At the conclusion of rebuttal, the court will ask if both parties rest and close. If they do, the evidence will be closed and the jury will not hear any additional evidence.

Once evidence is closed, outside the presence of the jury, the judge will conduct a charge conference. It is during this conference that the judge will decide what instructions to give the jury. If there are differences between the parties’ proposed charges, the judge will rule on those differences. At the conclusion of the charge conference, the judge will circulate the final version of the charge to the lawyers.

Once the charge is ready, the jury will be brought back in. The judge will read the charge to the jury. Then, the lawyers will make closing arguments. The petitioner gets to go first. After the petitioner finishes, the respondent will make a closing argument. Then, the petitioner will have one last opportunity to offer a rebuttal.

At the conclusion of closing arguments, the judge will excuse the jury to begin deliberation, the process of making their decision. The exhibits admitted into evidence will be taken back to the jury to review during deliberation. The jury will first select a foreperson before they begin deliberation. If the jury has questions for the judge, the foreperson will write the questions and submit them to the judge. The judge will then read the question to the lawyers and the lawyers and judge will decide how the question is to be decided. If there is a disagreement about how to answer the question, the judge will rule on the issue.

To reach a verdict, 10 of the 12 jurors must agree on all issues. Once the jury has decided, the judge will be notified. The jury will then be brought back into the court and the judge will read the verdict to the parties. The jury’s decision will be final, subject to a judgment notwithstanding the verdict (JNOV). A JNOV works just like a directed verdict – it should only be granted by the judge if there was no legal basis for a reasonable jury to rule as it had.

Step #4 Post-Verdict Issues

After the jury verdict, the judge will either rule or receive additional information on issues that are to be decided by the judge. For example, a judge decides possession and access to the parties’ children. Once a verdict is reached by the jury, the judge will then make other orders regarding the children. If it is a divorce trial, the judge will divide property using the jury’s verdict on any property issues.

Conclusion

At the conclusion of the trial, the judge will often ask the jurors if they wish to stay and speak to the lawyers. We find that many jurors do this. We’re always surprised by how much information the jurors are able to retain and process. We’re also always surprised how thoughtful and engaged the jurors are. This is truly is a testament to our democracy and judicial system. Once the trial is over and the judge has ruled on non-jury issues, the lawyers will draft a final order. If there are disagreements about the form of the order, the judge will resolve the disagreements. Once the final order has been prepared, the judge will sign the order at which point it becomes final. At that time, post-trial deadlines begin to run, but that’s a topic for another day!