Preparation & Standards of Proof
Attorneys typically spend 2 days of preparation for each day of trial. This really becomes more like 4 or 5 days per day of trial when extensive Discovery is conducted. Preparation for jury trials is more extensive than for a Judge trial because the rules are so much more complex. The most common types of preparation are:
- Written Discovery
- Witness interviews and preparation
- Document review
- Outline and strategy preparation
- Team & Client preparation
There are two types of witnesses. The first is called a ‘lay witness’, who does not have any particular expertise in any area in which they wish to testify. This is a ‘normal’ witness that has personal knowledge of relevant events or evidence.
Examples of lay witnesses:
- Family members
- Anyone who can testify regarding their personal knowledge concerning a party’s parenting, demeanor, specific acts, etc.
The other type of witness is an ‘expert witness’. Texas has strict requirements for a witness to be declared an expert. According to the Texas Rule of Evidence 702, “a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” A jury will usually give more weight to the testimony of an expert over the testimony of a lay witness concerning expert restricted issues.
The Jury Trial
The docket has been called and your case has been assigned to a Judge for Jury Trial. Parties have been sworn in and attorneys introduced. Now it is time to select your Jury in a process called ‘voire dire’. This is really jury DE-selection, rather than jury selection. Your attorney, as well as the other party’s attorney will screen prospective jurors, trying their best to avoid selecting a juror that could hurt their case.
The ‘jury pool’ of around 50 people come to the courtroom and then the attorneys question them. This is the time that a knowledgeable attorney knows is to be strategic, asking questions to determine the extent of a prospective juror’s knowledge or experience. If a juror is an accountant by trade for example, you may feel more confident in selecting that juror to help divide property in a divorce case.
Your attorney should be watching and vigilantly observing the behavior of the jurors. How is the juror dressed? Is the juror a stay-at-home mom or an engineer that makes a large salary? Your lawyer will closely observe their body language. Do they seem friendly or like they’d be sympathetic to your case? What are their personalities like? Hopefully you end up with a jury that can relate to you. If so, that’s half the battle.
Your attorney must be quite skilled at striking any juror that could be harmful to your case. If your lawyer is wise, he or she will use their peremptory strikes wisely (strikes that don’t require lawyers to give a reason for striking a juror). Moreover, your lawyer should be skilled enough to ask the right type of questions to determine if a particular juror would be biased against you. For example, if a juror was recently involved in a divorce in which his spouse was granted full custody of their children, you may not want that juror to impact whether or not you should get full custody of your children. Remember, the jury will determine the fate of your Texas family law case, thereby deciding a large portion of your family’s future.
An opening statement is like a mini-speech that your attorney will make to the jury that will explain the case, your position in the case, evidence that your attorney plans on presenting during the trial. Your attorney will also tell the jury what issues they are specifically going to be asked to decide. The Petitioner (i.e. the person that filed suit first) will present first.
Opening statements are not evidence, but it is vital that you have a lawyer that is fully capable of delivering an adequate opening statement in court. The opening statement is the introduction. It is the first time that the jury gets introduced to you, your attorney, the case, and even steals a glimpse at the evidence to come. First impressions matter. You should hire a lawyer that has great presence, is articulate, and can deliver an opening statement that will leave a memorable and positive impression on the jury and court. Choose a lawyer with a great personality and that is comfortable speaking in front of people, one that can relate to the jury and relay information in an easy-to-understand way. Choose someone that the jury will like.
Presentation of the Evidence
After opening statements, the parties will begin to put forward evidence for the jury to consider. The Petitioner’s attorney will start by calling witnesses and eliciting testimony from them. During the testimony, a well-trained lawyer will strategically get exhibits entered into evidence. Note: If an exhibit is not admitted as evidence, it cannot be considered by the jury/court. When your attorney has finished asking his or her witnesses questions, it is likely that the opposing counsel will then ask those same witnesses follow-up questions. Then, the witness is dismissed when testimony is complete and the other side calls their witnesses. The same procedure is completed for each side.
This is arguably the most important part of your entire trial. This is a key time in which your attorney can convince the jury to return a verdict that is favorable to you. This is the time that you’ll have to testify regarding your spouse’s affair or your ex’s excessive drinking before picking up the children. During the presentation of evidence, videos may be played, emails read, reports analyzed, you name it.
Additionally, the judge may require the jury to leave the courtroom from time to time during the trial if he or she wants to speak with the attorneys and/or the attorneys need to make legal arguments. The jury will be asked to leave when the judge does not want to “taint” the case by what the jury hears. This is to further ensure that the jury’s verdict is based upon only admitted evidence.
After all of the evidence has been presented, it is time for the lawyers to make their closing arguments. Closing arguments are nearly identical to opening statements in concept. The closing statement is a way to sum up the case and why the jury should return a favorable verdict for the client. The jury will likely be reminded of the evidence presented during the trial and the reasons why they should deliver a verdict favorable to either party.
When closing arguments have been completed, it is time for the jury to really think about and discuss the case. The jury will be excused to a jury room to deliberate. Attorneys are not allowed in the room. After the jury makes a decision, they will deliver their verdict.
What a Jury Can & Cannot Decide
Texas law divides up the decisions in a case between a Judge and the Jury. Generally, a Jury gets to the make the big decisions, while the Judge controls the flow of the case, makes decisions on the admissibility of evidence; and smaller decisions.
In certain situations a Judge can take a major decision out of a Jury’s hands prior to trial by “Summary Judgment”; mid-trial with a “Directed Verdict” or even post-verdict with a Judgment Notwithstanding the Verdict (JNOV). These are rarely used, typically only undertaken when a Judge thinks that the evidence is so overwhelming that no reasonable Jury could decide otherwise.
Marital Property Decisions
Child Custody Decisions
The Jury gets to decide which parent gets custody, as well as where the children will live. These are usually the two most important decisions for parents. But Judges are not without their powers, and they get to decide:
- Child support
- Possession (visitation) schedules
- Pick-up and drop-off locations and terms
- Health insurance obligations
Reasons to Opt for a Jury Trial
There are several reasons why you may want to opt for a Jury Trial:
- Just the act of declaring that you want a Jury Trial (called ‘making a Jury Demand’) often puts enormous pressure on your opponent. The reaction of their attorney, especially the ones who fear Jury Trials (which is most attorneys), will be to start thinking about settlement.
- When you have superior financial resources. Jury Trials are expensive. A Jury Demand usually results in a demand for a large trial retainer, which the other side may not be able to afford.
- When the trial Judge doesn’t like you, or your legal arguments. Examples of this are when you’ve been to a Temporary Orders hearing and lost on custody. Or if you are a Dad and your Judge has a reputation for being pro-Mom.
- When you think the average citizen in your County would be more favorable to you than your Judge.
Reasons to Avoid a Jury Trial
Jury Trials are not for everyone, which is why most cases settle and the ones that do go to trial usually just go to a Judge. Here are the most common reasons to avoid a Jury Trial:
- Cost is a problem for you. Jury Trials are expensive, often costing more than $100,000, and therefore if you can’t afford this you should avoid it.
- The Judge likes you or your case. If your pre-trial hearings have been favorable, stick with the Judge if possible.
Which Attorney Should You Hire?
We’ve made it clear here, that very few lawyers are willing and capable of handling your Jury Trial effectively. Most won’t actually take a case to Jury Trial. Many who will take one to trial are not going to perform particularly well.
So … should you hire our firm? This is an awkward question for us to answer, since we were raised right and taught not to brag. But it is a fair question and we get asked it every day.
Reasons to Hire Us
So … we are really proud of what we do for our clients. We work really hard. So, we’ll give you four reasons why we are the best choice for some clients:
- Experience. Nobody tries more divorce/family law jury trials than our firm in Texas (and therefore the USA). We’ve been doing this since the 1970s.
- Fearlessness. We take any client and any situation to Jury Trial if that is what our client wants. We believe strongly that we are going to make the best case to a jury and have won many seemingly hopeless cases.
- Qualification. Both Brian & Jake are Board Certified in Family Law by the Texas Board of Legal Specialization. Our Team of attorneys and staff is uniquely qualified to win cases.
- Intelligence. Jake & Brian are graduates of the top law school in Texas, which is unquestionably one of the best in the nation. Other members of Our Team share the same distinction, as well as graduating from other prestigious law schools. Effective trial advocacy requires hard work and high intelligence.
Reasons Not to Hire Us
We are NOT the best choice for other clients. Here are some issues that make certain clients bad matches for our firm:
- We are not cheap and require clients to pay substantial retainer fees. Many clients are on a budget and can’t afford us. We are the most transparent divorce / family law firm about how we bill and invoice, and we encourage anyone considering hiring us to read up on our website.
- We are brutally honest. If you want to be told happy nonsense and assured that everything is fine, then we’re not the place for you. We are completely honest with our clients and expect them to be the same way with us. No case is perfect, no client is without their faults. Similarly, we aren’t perfect and can’t read minds – so we expect our clients to speak up when they want something or feel like we aren’t meeting their expectations.
If you are going through a divorce and would like to speak with our team to see if your case is fit for us, reach out today!