Why Ask for a Jury Trial?
A lot (but not all) family law litigants have heard about their right to request a jury trial. However, some lawyers fail to even explain this option to their clients. Those who have had this conversation can generally identify the issues a jury can address. These issues include:
Whether the parents will be joint managing conservators, or whether one parent will be sole managing conservator;
Which parent will have the right to establish the primary residence of the child;
Whether a geographic restriction will be placed upon the child’s residence;
The value of property;
The character of property (e.g. separate vs. community);
Marital claims such as reimbursement claim or fraud;
Other torts brought in a divorce, such as assault or intentional infliction of emotional distress
While some lawyers can explain WHAT a jury may decide, few have the ability to explain WHY you would want a jury to decide your case instead of a judge. Of course, each case is different, but generally speaking, here are some situations in which you may want to have a jury decide your case:
If a Judge Ruled Against You in Temporary Orders
In most jurisdictions (Travis County and Bexar County being the exceptions) a case is assigned to a single judge. For example, if your divorce is filed in Williamson County in the 425th District Court, the judge presiding in that Court (currently Judge Betsy Lambeth) will hear every issue in your case. If you and your spouse have a dispute about custody of the children at temporary orders and the judge decides against you, what makes you think the judge will decide any differently at final trial? It’s illogical to think that the judge would. Remember, these judges hear literally hundreds of cases a year. If the judge ruled against you at a temporary hearing, even if the judge does not remember your case, it makes little sense that he or she would rule differently at a final trial.
Because of this, if the judge has ruled against you in temporary orders, you should consider having a jury decide the same issues at final trial. If you take this approach, in many instances, the jury will not even know what the judge decided on temporary orders. If the jury does hear what the judge decided, you can often explain that either 1) the judge simply made a mistake at temporary orders; or 2) the judge did not have all relevant information at temporary orders.
Our experience is that a jury will be curious as to why a judge made certain rulings at temporary orders and will not be afraid to rule differently than the judge. In contrast, a judge is very unlikely to reverse him or herself, even if new evidence has come to light. In this situation, it makes sense to try your case to twelve (or six in county court) citizens to see if they think differently than your judge.
If a Mental Health Professional is Against You
We hear time and time again that mental health professionals, like a guardian or a child’s therapist, simply get cases wrong. Have you had this happen to you? Often a judge will appoint a guardian ad litem to protect the best interest of the child, but instead, the guardian will do a poor job, or dwon’t do her job at all! It happens all the time.
But think about it. If a judge appointed that guardian ad litem or that therapist, why would a judge rule against his or her own appointee? Sure, some judges may figure it out. However, the judge’s inclination is going to be to side with the professional he or she appointed.
Juries on, the other hand, tend to be very skeptical of mental health professionals and guardian ad litems. Our experience is that that a jury will keep the mental health professionals accountable. If the professional has not done his or her job, or done a poor job, the jury will disregard her testimony. Time and time again we’ve seen juries ignore uninformed or poorly trained mental health professionals (See, e.g.: https://theaustinbulldog.org/custody-dispute-ends-in-mistrial/. If you are dealing with a combative mental health professional, consider a jury trial.
If Relocation is an Issue in Your Case
As mentioned above, a jury can decide what, if any, geographic restriction will be placed on the child’s residence. In other words, even though one parent may be awarded the right to determine the primary residence of the child or children, a judge or jury may decide to restrict the region in which that child may live. A typical geographic restriction would be that the parent who has the right to determine the primary residence of the child would have to live in the county where the case is filed or any surrounding county.
Obviously, this can cause a lot of issues for families. A parent may want, or even need, to move to another area for family support, for new relationships, or for work reasons. However, it is very common for judges to place tight geographic restrictions.
If you know it is likely for your judge to place a geographic restriction, then you should consider making a jury demand.
If Separate Property is an Issue in Your Case
A jury can determine the character of separate property. So if a spouse is claiming that property is his or her separate property, a jury can determine whether or not that is the case.
Why would you want a jury to determine the character of property? It is of course a case-by-case decision, but when making that decision, it is important to remember that the jury is going to be instructed to follow the “clear and convincing” burden of proof for tracing separate property. Frankly, judges can sometimes not take this burden seriously when they decide that they want a particular spouse to receive property. Also, a judge may be biased toward an expert or lawyer from the other side and subsequently ignore this burden of proof.
Juries tend to be less biased. They are going to hold a spouse to the “clear and convincing” burden. Often times, if we represent a spouse who does not agree certain property is separate property, we will make a jury demand to hold the other side accountable to this burden of proof.
If You are Represented by an Experienced Litigator
Finally, when making the decision of whether or not you want to make a jury demand you have to take into consideration the skill set of the opposing lawyer. In our experience, even skilled litigators try on average one to two jury trials every five years. Some litigators have not even tried one in the last decade. The partners and our law firm have 2-5 jury trials a year. At a certain point, experience matters. If your lawyer is comfortable trying a case to a jury and the other lawyer is not, you will have a large strategic advantage.
There are many factors that affect the decision of whether or not to try a case to a jury. Although the reasoning behind this decision varies, every case should be considered for a jury trial. If you have not had this conversation with your lawyer, we would encourage you to do that sooner rather than later. If you do not get answers that make sense, keep digging and find a lawyer who can get you the answers you need.
To find out more about jury trials, watch our YouTube video on Jury Trials in Family Law.