In the first episode of our new podcast series, “Jury Trials in Family Law.” Jake Gilbreath and Brian Walters discuss the essentials of jury trials in family law matters in Texas and how they differ from traditional bench trials. Other topics discussed in this episode are a jury’s abilities on a case’s outcome and factors as to why one would want to choose a jury trial for their case.
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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.
Jake Gilbreath: Okay, thanks for turning into For Better, Worse, or Divorce podcast where we provide you tips and insight of how to navigate divorce and child custody situations. This is Jake Gilbreath, I’m with my partner, Brian Walters. Today we’re going to start a jury trial series, which is one of mine and Brian’s favorite topics to talk about. We’ll be discussing the basics of a jury trial and family law matters in the state of Texas and of course our experience handling those. We will then go into some more in-depth topics as we proceed through the series.
Brian, a question that a lot of times we get from our colleagues that are practicing outside the state of Texas kind of goes as follows, “Are you serious? You try family law cases to a jury in the state of Texas?” How often do you get that question from lawyers that don’t practice in Texas?
Brian Walters: Yeah, I don’t even get asked that question because it’s not even in their radar. They don’t even think it’s possible. It’s not even their realm of possibility, so I just mention it in passing and then I get that exact response. “What on earth are you talking about?”
We’re the only state that does this evidently, especially as widely as we do. And as far as I can tell, I think just about at all. At first it is a little, step back a little bit and think, “Holy cow, what kind of random people are coming in and why aren’t we letting a judge who does this all day long make these decisions?” I guess the answer is the same as why we allow juries in a lot of different areas.
Jake Gilbreath: Yeah.
Brian Walters: So, there’s quite a few reasons for it and we’ll go over those a little bit today.
Jake Gilbreath: Well, the answer is because we’re Texas and we’re better in Texas and we’re better than everybody, so of course we have juries decide this. But I think it’s shocking even when we talk to non-family lawyers when we say, “Yeah, absolutely, we’ll take a family law case to a jury trial.” We’ll talk about why you would. Not every single case, in fact, very few cases go to a jury. A small percentage go to a jury as opposed to having a judge decide. But you have that right to make a jury demand on particular issues.
So, I guess let’s start with that – what issues can jury decide. Because even amongst family practitioners I think they think, “Well, I make a jury demand and a jury’s deciding everything.” That’s actually not the case. The jury’s not back there, for example, calculating child support or coming up with a possession schedule.
Brian Walters: That’s a good point. Yeah, it’s really good point. So, if you have children and you’re married, it’s really three lawsuits in one. And as I see it kind of decide the high-level, big-picture decisions on each one. The first part is are you married? That can be a question, believe it or not. With the common law marriage or people that aren’t really married or thought they were married. So they can answer that question.
Then of course they can decide whether we have community property or shared property. We also have separate property, which is property that a person owns before the marriage or gifted. They can decide if something is community or separate property, and they can also decide the value of those pieces of property. If there’s a dispute about how much a business is worth or something like that.
Then if you have kids, whether you’re married or not the jury can decide sort of the big-picture items on that. Who gets custody, a right to establish residence of the child. Then sometimes even more importantly than that, where is that child going to live with the primary parent, which is a big issue.
So those are the big-picture questions. There are some smaller ones and sub questions that can be answered and asked. Attorney fees and some of these things are advisory and some are binding on the court. That’s another sub question. But generally, I’d say they decide the big picture items and the judge is still going to decide some of the details is a good way to look at it.
Jake Gilbreath: Yeah, I think that’s what I generally tell people. It’s like we want to kind of point the family in the direction where they’re going and then the judge is going to do the details. Who gets custody because they can also decide solo versus joint. But most times the parties will have agreed that it’s going to be joint managing conservatorship. Then that big question of who has the right to determine the primary residence goes to a jury, but the jury’s not going to go drill down unless they decide that one parent’s sole. But if the parents are joint managing conservators.
The judge is going to go through those big rights that we’ve talked about in other podcasts, the 153.132 rights. For example, who gets to make educational decisions, who gets to make psychological and psychiatric decisions, the basic medical decisions. Those are judges’ decisions.
On property, it’s not that the jury’s back there dividing up your property and decide who gets the house and who gets the 401k. They’re going to say, “husband’s got a business, wife says it’s worth $15 million, husband says it’s worth $2 million.” Well, that decision is going to make a big difference on how the estate’s divided up, but you can ask for a jury to make that decision. Then the judge is going to have to take that decision and she’s going to have to respect that decision of what the jury says the value, and then use that in her division of the overall estate. Just like if they come back and they say, dad gets custody or mom gets custody, the judge is going to have to take that decision and then she’s going to have to incorporate that in making all her other decisions that are left to her.
Like you were saying, Brian, as far as the smaller issues, it’s always interesting to pull out the pattern jury charge and read through kind of all the stuff that a jury can do. A lot of times we don’t try to a jury: for example, reasonableness of attorney’s fees or they can do the calculation of a reimbursement claim, but then it’s up to a judge about whether to award it or not; breach of fiduciary duty; fraud claims. Those can go to a jury and various interspousal torts, assaults, stuff like that. Brian, we have tried interspousal torts to a jury and those can go to a jury. They can go to a bench, but they can also go to a jury.
So, sort of strategically that begs the question, “well, why would I do that?” Why would I go and ask for a jury? I guess that’s my right, but back to what you were saying earlier, Brian. Why wouldn’t I just go try all this stuff to a judge who’s going to have seen multiple custody cases or business valuation and she’s going to have experience – versus going to 12, or in county court 6 members of the public who may have been through a divorce themselves. Maybe they’re a lawyer. If they are, they’re probably going to get struck from the jury. One side’s going to get them off there, but why would I have a jury do it as opposed to a judge? Obviously, it’s like we were talking about in another situation earlier today, but obviously, the answer’s going to be, it depends. Generally speaking, what are you looking at as far as why we do a jury versus having a judge decide?
Brian Walters: Yeah, it’s a good question. Just so everybody’s clear about it, going to a jury is a longer process. Typically to get to a trial it is a more expensive undertaking than trying it to a judge for several reasons. I’m sure we’ll get into that later in this series.
It’s kind of two categories. One is that if you don’t feel like what you’re going to get from the judge is going to be fair. Either because you’ve been to these preliminary hearings, we call them temporary orders hearings or some other type of procedural hearings. You don’t think this judge is going to be fair because you think either they don’t like you or they’re biased toward this particular outcome or that. You think there’s a mental health professional, a court-appointed amicus, child custody evaluator or something like that that – you think the judge is going to rubber stamp rather than provide an independent decision on. So, in that case you say to yourself, “I don’t want this judge making these decisions. I don’t think they’ll be as fair to me as 12 members. That’s category number one. Again, there’s a lot of thought that needs to go into that.
Reason number two is that you’re going to use the cost and experience of your attorney as a weapon. When an opposing attorney gets a jury demand – when we submit a jury demand saying our client wants a jury trial on all these issues. That is a message to the other side real quick that, A, this is about to get very expensive, and, B, the lawyer in particular, may be quite nervous about that. The most difficult thing we do is try jury trials and very few lawyers in this state try them really at all. An even tinier number try them regularly and an even tinier number than that, and we’re talking about one hundredth of 1% now of lawyers try them frequently and very well.
We’re pretty confident about our abilities. My mama taught me to be modest, but I think you try more family law jury trials to a verdict than anybody in this state. I don’t think we have any way to prove that one way or the other, but I’m real confident about that and maybe our firm as a whole does as well. So that is really throwing down the gauntlet to the other side that this is about to get very expensive, very serious, and it may make the other lawyer start sweating. I wouldn’t be surprised if that’s the result when that happens. That’s my take on it. You may see it a bit differently.
Jake Gilbreath: No, I’m the same. Again, it depends but there’s lots of different reasons why a case may make sense to go to a jury. Of course, courts like Travis County and Baylor County where they have rotating dockets, you may get one judge for temporary orders and a different judge for final. But if you got an indications from your judge that the client is not their favorite, then maybe that’s the time to think about taking a case to a jury. Sometimes though, it really is just because you think a jury’s going to see it differently than a judge will.
Like you said, we try a lot of jury trials. I don’t know why our practice has developed that way. I’d like to think it’s because we’re really good at them. We’ve just ended up trying a bunch of jury trials and getting hired consistently to do jury trials. Or we consult with people that are doing jury trials or getting pulled in as co-counsel for jury trials. I do like to brag that I think when it comes to voir dire, which we’ll talk about more serious and in depth in another podcast – Sarah, who’s my wife and the CEO of our firm worked as a paralegal before she was running our firm. We take her to jury selection voir dire, and she is well known as being extremely good at sort of helping us work. Obviously, she’s not doing the voir dire she’s not a lawyer but helping us with taking notes and coming up with our strikes. Who we are going to use influence and of course who gets on the jury ultimately. We’ll talk about it more when we speak to her in another podcast, but the joke in the office is that her vote always controls. I have an advisory opinion, but Sarah’s vote always controls.
Point being is that we get hired to do a lot of juries, but in my experience in doing them is sometimes they just see the world differently than as judges do. Sometimes as practitioners I think we kind of get, echo chamber. That is the wrong phrase but sometimes as family law practitioners and as judges we just start seeing things the same way over and over because we see these cases over and over again. We know how they play out and we just kind of think, okay, well this is your fact scenario, so we all know this is how it’s supposed to be. Frankly sometimes our world is a little bizarre to the average person. Sometimes the way we see these cases are when there’s mental health professionals. It makes total sense to us, and it makes total sense to judges. If you see an average person on the street and tell them this is what’s going on they kind of look at you sideways and go, that doesn’t sound right the way that y’all are handling it.
For us it may make sense because the experience when we’ve done it, but the average person doesn’t see it that way. A move is a perfect example because a jury can decide on geographic restriction. There’s a lot of judges that will tell you, “No way, no how, am I ever going to let a parent move. A parent can move but let the kids move outside my jurisdiction or my county and contiguous counties.” They just have that bright line rule, which there’s nothing wrong with a judge having that bright line rule. A lot of them are very open about that. Also, there may be situations where a move makes sense and the average citizen’s going to think that a move makes sense. And that’s just not the way the judge or practitioners see it, so a jury may make sense in that scenario.
This is generally speaking that every single case is different. Sometimes as practitioners and as judges we really buy into our set of mental health professionals, our guardian ad litems, or amicus involved in the case. Practitioners can kind of get so used to going, “Well, this is what the guardian says and what the amicus says. That’s the end of the story.” A judge can get in a rut of just going, “The guardian says this, the amicus says this. Well, that’s what we’re doing.” And there’s just no discussion. My experience generally has been that of course a jury is going to listen to a guardian or amicus and hear them out. They don’t necessarily give them as much deference as maybe a judge will, or a practitioner because they don’t know who these people are. This is the first time they’ve ever heard of Dr. So-and-So or social worker so-and-so coming in and telling them what they think should happen with custody of a kid. All those things are just very, very broad levels of why you may want a jury in a case and why strategically that may make sense.
Brian Walters: I agree. The other thing is that judges have an incentive, they want people to settle their divorces in custody cases. Why? Two reasons. Because their caseload is already heavy and it would be completely unmanageable unless most people settle their cases. How do you settle case? Well lawyers tell you this judge is going to probably do this in this situation. It’s predictable. Litigation is predictable and it should be. You should be able to go into a court and get pretty much the same outcome with the same facts every time.
I think the domicile restriction or the moving one is a good example. The easiest way to deter people from coming to trial to say, “I want to move to Los Angeles with my kids and leave dad behind in Dallas” or whatever. The easiest way to avoid that as a judge is to have a rule that nobody’s leaving Dallas. Everybody’s going to stay here until the kids are grown for all practical purposes. That does deter litigation, and frankly that’s probably the right choice for most families. Not always, but if they apply it very broadly, I think a problem with that is that overrides the individual case sometimes.
A jury comes in there and that’s the first trial they’ve ever been on and it’s probably their last one. They don’t care about deterring litigation or setting policies. They want to do what’s right for this particular case and for these particular children. So, it’s a good example. You’re more likely to be able to move with your kids if you have a jury making that decision. I think that’s one of the reasons why is that they don’t care about deterring litigation. Again, it’s perfectly normal for judges to do that. It’s logical but it might not be the best situation for your particular case.
Jake Gilbreath: Well, I’ll say this too because we’re talking just really broad right now. We’ll do more details in the next episodes of this series. I think a lot of practitioners try to scare their clients away from jury trials because they haven’t tried one themselves or for whatever reason. I hear a lot of people tell clients or they tell judges, “You don’t know what a jury’s going to do, they’re crazy. They’re going to hate this. They’re not going to pay attention.” In my experience that doesn’t mean that I’ve agreed with every single thing that a jury has done in my cases, but my experience with juries is they’re very logical with the way that they approach things. And to your point, Brian, they try really hard. I’ve had juries that I haven’t always agreed with every single verdict, but I haven’t been surprised by many verdicts.
Brian Walters: I was going to say that I’ve never been surprised by a verdict. I’ve been surprised by some judges’ rulings but not by a jury verdict.
Jake Gilbreath: Yeah, but they try really, really hard. Sometimes some judges, not all of them, are trying to deter you from trying these cases and say, “Well, you don’t want to take this to a jury. They’re going to hate to be here. We shouldn’t be doing a jury trial in this case. These people are going to be so upset.” Now I’ll speak on picking a jury. You sit there and everybody’s there for jury duty. They have no idea what the type of case is. Most of them don’t even know the difference between a civil case and a criminal case.
They think they’re about to hear the OJ Simpson case, some multi-billion-dollar MedMal case, or corporations suing each other. Then the judge gets up and goes, “This is a divorce case with kids.” You kind of see everybody’s face fall and they go, “Oh no, we’re going to have to listen to a custody case for a week or a week and a half.” That’s how they start. I have not had a single time where the jury hasn’t had the time of their lives and really, really try hard to listen to the evidence. And particularly on child custody cases they try to figure out what’s best for that child. Again, I’ve tried them all the time and I was so impressed at people there that may be skeptical at first and think “why are you going to make me sit through this.” But at the end of it they really took their job seriously and when you talk to them afterwards, they have such good recall about the evidence. They have good recall about what the witnesses said and about what the exhibits are. They take their time. It’s really impressive to watch.
A lot of times these are people that have probably never spent a day in the courthouse in their lives. Sometimes you’ll have somebody who’s on your jury who doesn’t have more than a high school education if that. Then you’ll obviously have people there with higher education and they get it, and they try really hard. If you have a judge trying to deter you or lawyer out there that’s saying, “Don’t take it to a jury. They’re going to hate it.” I’ve heard the speech multiple times in my career – how upset everybody’s going to be with you that you’re making them sit through this and that’s just not been my experience. And that’s in all jurisdictions.
Brian Walters: I’ll say that my first jury trial and my most recent one are the only two times I know the jury has really hated the case. But even then, they were very conscientious. I think they were disgusted that they had to make this decision. That the people, the adults who were parties, had gotten themselves or their children into these situations. But even then, they didn’t just make a bad ruling and leave. They deliberated. They spent a lot of time and thought about it. Then as soon as they did their duty they took off.
Jake Gilbreath: I’m not saying they always love my client, the other side or both, but they’ve always liked the lawyers. I’ll say that. It’s an impressive system. I mean, that’s going back to how we started this episode of just when everybody asks us how on earth could you let a jury make these decisions? I always kind of lead with this: You’d be surprised how good a job that they do, and you’d be surprised at how hard that they try to get the right deal. And the ones that we’ve talked to afterwards, they’ve enjoyed it. I’ve got cases referred to me over the years by jurors that have sat on juries that have been or have sat through voir dire.
I think it’s a great system. It’s fascinating to people outside our state that we do these juries. But I think it’s an important part of our judicial process. I personally believe that it’s a great service to the justice system, people being willing to come in and serve as jurors. I think it’s something that makes our system work and I think it’s important that not everything is decided by somebody in a black robe. There are certain things in your life that will be decided by your peers not somebody that you didn’t even realize was an elected official in your county.
Brian Walters:Yeah, I agree. And it’s a good point. It probably keeps the judges a little bit in line too. Knowing that if they go too far on one against somebody or they seem that way, then the other, they’re going to just demand a jury.
Jake Gilbreath: Yeah, it’s good. It’s definitely a good option out there to be able to file that demand. It changes the discussion of the case very rapidly. There’s a lot more details about strategy and kind of logistics and how we handle these things we plan on sort of sharing. Y’all know us, we’re kind of open book about all this stuff. There’s no secrets. So, we’ll be discussing that in the upcoming podcast series. But we’ll wrap up with that broad overview for today.
On our next episode, we are going to talk about the jury selection process, voir dire, as it’s called in the state of Texas. Sarah’s going to join us and so we’ll be getting her thoughts on the process, her participation and how we see it. But that’s what we’ll cover for today. So if you’re interested in giving us some feedback, we always appreciate it. You can leave us a review. You can contact us at podcast@waltersgilbreath.com. You can visit us at our website and of course you can contact me or Brian or anybody at our firm at any time. So we’ll wrap up with that for today. And thank y’all 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 discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.
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.
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