In the final podcast episode of our “Jury Trials in Family Law” series, Brian Walters and Jake Gilbreath discuss how one can set themselves up for a successful jury trial. The partners discuss steps needed for jury trials, including witness preparation and the voir dire process. Furthermore, they explain why many Texas family law attorneys do not like jury trials and what qualifications you should look for in hiring an attorney for a jury trial.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.
Brian Walters: Thanks for tuning into For Better, Worse, or Divorce podcast where we provide you tips and insights on how to navigate divorce and child custody situations. I’m Brian Walters, one of the managing partners of Walters Gilbreath, PLLC. I’m here with our other managing partner, Jake Gilbreath. And today for our third and final episode in our jury trial, a series, we will be discussing some closing topics in family law cases that go to jury trial. And talk through things we often do with our clients to prepare for that jury trial. So maybe you can start, Jake, with talking about preparation.
Jake Gilbreath: Yeah, and we had talked in the last episode or a couple of episodes ago, I can’t remember, about picking the jury. Remember, it’s not picking the jury, you’re actually deselecting the jury. And we talked through the strategy and everything last time. Just as a reminder, that’s going to be the voir dire process that happens before the jury’s impaneled. But when you’re preparing for a jury trial, it’s two sets of preparation, really three when you think about it because first is your pretrial with a judge. Now, bench trials, depending on what county you’re in, bench trials often have bench trial just going through a judge. Those often still have pretrials, particularly for more complex cases where a judge wants to meet before the trial starts to go through any preliminary matters, stuff like that. Some counties require that, some counties don’t. Some judges like that, some don’t. It just sort of depends.
But in a jury trial, in almost every situation, you’re going to have pretrial where you deal with motions in limine. Which are matters in which the court on a preliminary ruling is going to say that these don’t get heard by the jury without you first approaching to the judge and getting permission or arguing why it’s admissible or not. Idea being, if there’s something that we think that there’s a good chance that’s not going to come into evidence, the judge doesn’t want you just spitting it out. And that’s why you have limines. So, for example, if there’s a really crucial hearsay statement, say, from a child or a therapist or something like that. If you’re the one objecting to the hearsay statement that you know is coming, it doesn’t do much good in front of a jury if hearsay statement gets testified to. And then you stand up and you go, “Hey, that was hearsay. Y’all shouldn’t have heard that.” And the judge will say, “Yeah, that was hearsay. Y’all disregard that.” And then the jury’s still going to have it in their mind.
So that’s limines. You kind of get ahead of the game and the judge makes preliminary rulings. It’s not necessarily going to be the ruling on the case on the piece of evidence, but a preliminary ruling. So, you’re preparing for your limines. A lot of times courts will require the sides to exchange objections on exhibits and depositions and stuff like that. Idea of pretrial overall being the judge wants all trials to go smoothly, but particularly, a jury trial judge is wanting the case to go smoothly so there’s not bickering and fighting and procedural stuff before a jury because then it really makes it confusing in the case drag. So, you got your prep for your pretrial. You’ve got your prep for your voir dire and your jury selection, which we talked about last time and which is a poll art form in and of itself.
And then you’ve got to prep for your trial, just like any other trial. You’ve got to get your witnesses lined up. You’ve got to have your client prepared and obviously have experts ready to go. Make sure you’re super kind to your experts, particularly in front of a jury. Always be super kind to your experts but particularly in front of a jury and when you’re preparing for a trial. We’ll talk about this later on in the episode, how nervous and overwhelmed some lawyers get when it comes to jury trials. A lot of them just straight won’t do them because they’re so intimidated by them. But once you get through pretrial and once you get through voir dire, it really looks a lot like any other trial. It’s going to go probably smoother because you’ve done a lot of extra work leading up to it, but it looks like any other trial, with obviously some nuances here and there. And then at the end charging a jury, which is some nuance, and then you’re closing to the jury, not a judge.
There’s some stuff added but as far as the actual presentation of the case, it should look a lot like a bench trial. So, once you get to that point, it’s just like any other trial but now you have 12 people or in county court, 6 people. Maybe an alternate here and there watching you as opposed to just a judge who maybe you’re used to being in front of a judge. Maybe you’ve tried hundreds of cases in front of the judge that you’re in front of and so you’re familiar with her and then now all of a sudden you’re trying a case in front of 12 strangers that you’ve never met before. Now, your client hasn’t met either one. Brian, when it comes to preparing your client for the actual trial part, we talked last time that we involve the client in the voir dire process. We obviously keep them informed about the pretrial process, although that’s mostly lawyer work. Actual testifying in front of a jury, do you have tips that are above and beyond just your typical trial, Brian, whenever you have a jury?
Brian Walters: Yeah, I think a couple of things. First is that motions in limine that you talked about, which is a confusing concept so that they need to kind of be prepared. In theory that means the lawyer shouldn’t ask a particular kind of question, but sometimes they get through. Or sometimes there’s a gray area and you just need to tell them not to get into that area unless the judge has approved testifying about it. And that’s usually a pretty limited number of things. Everybody knows what the issues are going to be, so there’s definitely that. I mean, you always tell your client to be aware of the judge is watching you in a bench trial. But now you have, like you said, 12 people plus the judge watching you. So, I think it’s important for them to talk to your clients about something as simple as what to wear.
I had a client this week show up to court in shorts, despite being told not to do that. And fortunately, we reached an agreement in the hallway, otherwise there wouldn’t have been any testimony from him in court. Also, just how to interact with the lawyers, how to interact with the person on the other side of the case. All of those things are important because jurors are only supposed to listen to the evidence, same thing with judges. But we’re all humans. We watch people and we make conclusions on the way they act, the way they are dressed, the way they behave, all of those kinds of things. It’s a bit more of a slog too, I’d say. Jury trials tend to take longer, at least a day longer, but potentially several days longer. It’s a lot of time in court and you just need to pace yourself a little bit is another thing I’d say.
Jake Gilbreath: Yeah, it can be grueling. When I talk to clients, I tell them it’s like everything that you typically do just in a regular trial but it’s almost amplified. Anytime we go to trial, of course you’re reminding clients, “Don’t scowl, don’t make faces, don’t scuff,” all that stuff. Multiply that times 10 in front of a jury and you never know what could happen. Only one person has to catch it. If you scoff or you roll your eyes or something like that, maybe 11 out of the 12 jurors missed it, but one’s going to catch it. And then whenever they’re back deliberating, that one’s going to tell the other 11 what he or she saw. So it’s amplified. We’ll talk about experience in just a moment, but I still have nightmares to this day about my first jury trial. I tell this to my clients while preparing them.
I was a younger lawyer, and it was the first jury trial I had. I also tried it solo for the first time. I’d never tried jury trial period, and I tried this jury trial solo. And spoiler alert, at the end, we won. So that was good. But when I remember trying it, there are several mistakes I think I made throughout the trial in my presentation. One of the biggest mistakes I made is when the other side’s lawyer was closing, I thought what he was arguing was ridiculous, which it was. And the jury ultimately saw that it was ridiculous also, and they sided with our client. But while the other lawyer was talking, I had at least on several occasions scoffed or maybe not explicitly rolled my eyes, but kind of made motions. It was rude and it was kind of a younger lawyer mistake.
Again, like I said, we won the case ten-two. We should have 12-zeroed that one. It was ten-two, so we won. I do remember one of the most important things that you do at the end of a jury is talk to the jurors at the end of it. Win, lose, you talk to the jurors if the judge gives you the opportunity. There was a couple of jurors that came up to me afterwards and just chewed me out for that. And good for them because it was horrifying in the moment to get chewed out by total strangers, and it’s a lesson I’ve always taken. I tell my clients that. I tell them that story to emphasize how important your behavior is in front of a jury. And who knows, maybe those that chewed me out were the two that voted against me or against my client, but you don’t want to be the center of attention. You want the evidence to be the center of attention in a jury trial.
I guess that’s the last thing I’ll say on that before we talk about experience. It is different because it goes outside the courtroom too. With a bench trial in front of a judge, typically, the judge is back at her office on breaks, she’s eating lunch in her office or going to a meeting. You got to remind clients from the moment you park your car and you’re walking to the courthouse you could have a juror walking behind you. Or they are looking at you through the window or just overhear you because they’re down the hall. You have to be careful what you say and how you behave because somebody could always be listening. That’s the level of detail we got to go into. All the way from, “Hey, don’t wear shorts,” to “Hey, be careful while you walk down the sidewalk” because if you’re some rude jerk that’s screaming at an unhoused person on your way to the courthouse and you’re just a total jerk, you never know who’s going to be watching. We go through all of that. A lot of that just comes through experience. So now let’s talk about that, Brian. Thinking about now and reliving the trial – the first jury trial I tried to myself and making all those mistakes without experience. I don’t think I was a bad lawyer. I was inexperienced and didn’t know what I was doing for the first one. So how important is it, Brian, do you think, to actually having done these when trying one?
Brian Walters:I think it is very important. You don’t want your lawyer learning things on your dime, or on your case that has custody of your children or some large financial issue really at stake. And there’s no substitute for doing it multiple times, doing multiple reps. For example, you had your first story, mine was actually on the state of Texas’ dime as I was court appointed for a CPS termination. And dime is probably the accurate description of what they were paying me. It was an eye-opening experience from top to bottom.
Luckily, I had such a horrible client and set of facts that there was no way I could do any worse than we expected to do. But every time I’ve been, I still learn one or two additional things. And every jury’s different, obviously because it’s a different group of people. You’re generally in front of a different judge each time, or at least you don’t go very frequently in front of the same judge. Those are going to be variables that you’re going to have to deal with, and the last thing you want is somebody learning, “How do I pick a jury,” or “Wait, what’s a motion in limine?” or any of those type of things.
Jake Gilbreath: I think we have great judges throughout all the areas of the state that we practice. For a judge, he or she may not have presided over a jury before. It’s a different experience for the judge as well. Brian you and I tried this one together. I won’t say the county, and obviously I won’t say the judge, but one of my prouder moments later on in my career was when we tried a jury in front of the judge, who’s a relatively new judge. I hadn’t been elected and the other side hadn’t tried a bunch of jury trials. When we got towards the end and we were talking about charging the jury, which is the process where the judge actually gives them their instructions and reads them the questions that they’re going to be asked.
I think we were in our informal charge conference, or maybe it was our formal charge conference. But at least on several times during the conference the judge looked over to us and goes, “And this is what I do next, right?” “Yep, that’s what you do next.” “And then I give them the charge, right?” “Yep, that’s how you do it, Judge.” She was very gracious that she didn’t know. I think she knew, she was just double checking because it was one of her first or second one presiding over, and we try them multiple times. So, a great deal of pride in that case. That one actually ended up well for our client as well, really because of the facts and of course preparation and really good job for her. But yeah, they’re just a different animal. I think that sort of bleeds into, and we talk about this a lot in other podcasts, why frankly a lot of lawyers don’t like trying jury trials.
I think we’ve talked about in other episodes that sometimes they can strategically enhance your case if the other side’s not experienced with jury trials or not comfortable with them because they don’t do them a lot. Making a jury demand in a case can have a strategic advantage above and beyond just thinking that maybe a jury’s going to give a better shake to this case than a judge would, or the judge that you have would. There’s a strategy behind thinking about the other side’s experience with jury trials. What have you seen over the years, Brian, as far as lawyers who don’t have the experience when that jury demand comes rolling in? What type of reactions do you see that causing?
Brian Walters:I see fear. What was formally confidence of, “Oh, we’re going to win this,” to maybe not so much. I think what happens a lot of the times is that when you make that demand saying, “We’re ready for a jury, we want a jury and we know we’re ready for it,” then I actually think that greatly increases your leverage. Most of those cases ultimately settle. Out of the ones we make jury demands for, I’m sure that the settlement rate is possibly two-thirds or three-fourths still. Ultimately, they settle. That’s a really great additional bit of leverage to have in your back pocket and just to have the other lawyer on the other side either clearly or just in their own mind saying, “I really don’t want to do this,” is valuable. And of course, as we’ve talked about, it increases the cost to both sides.
So if you’re the one with the client who’s willing and able to pay for that, and nobody wants to pay a lawyer and nobody wants to pay for a jury trial. But if they’re the one more willing to go through it to get what they want for their children or whatever the issue’s going to be, that’s also an important bit of leverage on the other party, not only the attorney. So, I think it’s often a valuable piece of leverage. I don’t like to bluff. I don’t file those things unless we intend to go forward with it. But I think it’s very helpful.
Jake Gilbreath: Yeah, I think it’s an important discussion you have. And on that line, the bluff, I think our firm more than any other firm are willing to try a jury trial and make the demand. Then on the flip side, we’re not that firm. Some lawyers I see make a jury demand in every single case. Every single case. The original answers filed, and there’s a jury demand. The petition, there’s a jury demand. There’s not a strategic discussion behind it when they make that demand. And there’s a couple of problems to that. One, I think you lose the, I guess intimidation, for lack of a better word. If you’re always making a jury demand, whatever the case, then at a certain point you start getting eye rolls when you do that. But also because it increases the fees, a judge is going to look at it at the end.
If you made a jury demand un-strategically, just to run a cost, or just to be difficult or whatever – and there’s not a strategic reason behind it, then that could come and be factored into assessing attorney’s fees at the end. It’s a discussion that we have internally in the firm in every single case. For example, one of the requirements of our associate attorneys within a certain amount of time period, outside of trial, obviously 30 days is your minimum, but we have the discussion even before then. We have the discussion of, “Are we going to do a jury trial in this case or not?” That needs to happen. That doesn’t just happen internally, it needs to be a discussion with a client. I’m always amazed at how so many lawyers don’t even give their client the option. I think it’s probably because they don’t want to try. Their worst nightmare is that they give the option to the client, and the client says, “Well, that sounds great, let’s do that.”
I think some lawyers don’t even talk about the jury option and it’s a constitutional right that you have. It’s in the Texas constitution that you have a right. The family code sets forth what issues, but you have a constitutional right to a jury. The clients need to be told that so they can be part of the decision.
Now we are going to talk about do’s and don’ts of jury trials. I can list lots of don’ts, but Brian, what comes to your mind for do’s and don’ts of jury trials if anything pops out at you?
Brian Walters: I think we have talked about a number of them of. One is to get an experienced attorney who knows what they’re doing. Know what you’re getting into as a client and be prepared and listen to your lawyer. Obviously, it’s your decision. If we recommend something, it’s ultimately the client’s decision and we give them the choices and they do what they want to. I think those are all important things. And then realize that if you go to trial, you’re putting a decision that you might be able to make with your spouse or the other parent in the hands of 12 people who you’ve never met. And again, I’ve generally found those decisions to be very good, probably better than judge decisions on average. But your case isn’t an average, right? It’s your particular case and those are the things that you should, I think, really consider. That applies a lot to litigation, but probably even more so to a jury trial. What about your thoughts on that?
Jake Gilbreath:Don’t think that a jury trial is not a scientific process, that there’s not a strategy behind it. I deal with so many lawyers and I think they try to be cocky about it or they don’t have the experience and say, “I’ll try my case to the first 12 people on the panel because that’s how strong it is,” or “This case is a slam dunk, so I’m not worried about it whatsoever.” There’s a lot of preparation that goes into a jury trial. There’s a lot of strategy that goes into a jury trial that’s just above and beyond a bench trial. And if you have a lawyer that’s scoffing it off or saying, “It’s no big deal,” or “Nobody can see it the other side’s way,” or “There’s no way we can lose this,” anytime you have overconfidence like that coming from your lawyer, you should be nervous.
Particularly with a jury trial, if somebody’s coming in acting like experience doesn’t matter or anybody can do this, then that’s somebody that doesn’t know what they’re doing. And as far as the do’s, it’s just do be willing to do it. To pull that trigger and go to a jury trial and do make sure that you’re prepared because it goes back to what we said earlier. Everything you do in front of a jury is just like a bench trial in a lot of ways, but it’s amplified. Having a lawyer who is not prepared for a trial, maybe you can kind of soft shoe around it with a judge. In a bench trial, you want to really put a spotlight on not being prepared, do it in front of 12 people and not have your exhibits pre-marked or not thought about your objections or your presentation of evidence. Don’t have your witnesses lined up, don’t have your experts squared away. Doing that in front of 12 people or 6 people in front of county court, it’s going to amplify it. So always make sure you’re prepared. And then I guess last one is how we want to talk about wrapping up this series. Brian’s talked about the expense of it, which I’ll let you talk about because you mentioned it some. We really do want people to understand that it is a financial commitment to go into a jury trial. Like all our cases, we try to be really open and honest about finances with our clients. Don’t hire a lawyer who bait and switches you or won’t have the honest conversation about how really incredibly expensive this can be, unfortunately. Making that dive into the trial, Brian, because we’re not just talking about one day bench trial, we’re talking about a jury trial. What are you talking about with your clients and when are you having that conversation with clients when it comes to the expense of a jury trial?
Brian Walters: I think you need to have that discussion before you choose to go down the jury trial path. Or if it’s been chosen by you, if the other side’s made a jury demand first, then you need to probably have that discussion right up front. I mean, it’s what anybody would want to know about. Let’s say we’re giving the option of a jury trial. The two obvious questions are, “Well, what are the pros and cons of it for my case success?” And the second one is, “How’s that going to affect the cost?” I guess there’s a third issue, which is the timeline. It would typically take a little longer to get to a jury trial. So if a person is in a hurry to get through this process that might not be the best choice. But if they do have the time, it probably doubles the cost of an average trial.
I think it’s kind of a funny algorithm, or a calculation for that. I’d say it adds at least a day any trial. So if it’s a one-day bench trial, it’s going to probably be two days with the jury, but it’s even a little more than that. I’d say a four-day bench trial is probably a six-day jury trial because just overall, everything’s just slower. I tried one back in May and every morning some juror would be 10 or 15 minutes late. Their kid was sick, they got stuck in traffic or one of them had a car accident on the way. There’s just always some delay. Same thing with lunch. Somebody would always be 5 or 10 minutes late getting back from lunch or whatever.
Everything goes more slowly. So that makes things more expensive because us lawyers are sitting in the courtroom while this slow process still goes on. There’s also that additional preparation that we talked about earlier. It varies so widely so it’s hard to give exact numbers. Let’s say you had a three-day bench trial versus what maybe would be a five-day jury trial.
For the preparation of that, that’s dealing with the discovery, all of the other things on a three-day bench trial might be $50,000, let’s say. It could be less than that, it could be more, but let’s say that’s a rough estimate of it. Instead of 50, it’s probably 75 or 80 to do the jury trial for the exact same set of facts. That’s per side. So again, that goes into the question of can someone afford it? Is one side more than the other more willing to pay that to go that route, et cetera? Those are large numbers, and it’s like I’d say with any litigation, don’t do these things. Don’t go down those paths if there’s a reasonable settlement to be had, but sometimes there isn’t. That’s what the juries and judges are for.
Jake Gilbreath: Well, and that’s why we had the conversation, right? It’s just the worst thing you can do. We talked about this in other episodes, 30 days out from trial, and you’re the client and you’re all geared up and your lawyer goes, “Oh, by the way, did I mention that in a week, you owe me $50,000 or I’m going to withdraw or move your case?” or whatever. Let’s have the conversation, as painful as it can be. Overall, wrapping the series we’ve just scratched the surface. There’s so much more.
As you can tell, we’re both fascinated with the topic of jury trials and we could talk your ears off more, but we’ll leave it at that. So thanks everyone for tuning into this series. And of course, as always, if you’re interested in speaking to one of us about your family and law matter, you can visit us at waltersgilbreath.com. You can email us at email@example.com. You can call the office, you can find us online. We love hearing from y’all. So for now, that’ll wrap up our series, and thanks for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want to be discussed or a question for our hosts? Email us at firstname.lastname@example.org. Thanks for listening. Until next time.