Trials can be heard by a judge or a judge and jury, and there are strategic, fact-specific reasons to try your case to a judge and jury rather than a judge, (for example, in Texas, a jury can only decide certain specific issues). Despite what we see on television, trials are quite rare; most family lawyers spend their whole careers without participating in a significant number of trials, and many never do a single jury trial. This is because the vast majority of cases settle outside of court, only a select few attorneys have the experience necessary to excel in trial. Our firm has so much experience with jury trials that, when faced with such a trial, other lawyers often ask us for help! If you believe your divorce or custody case would be suitable for a jury trial, we encourage you to review the information below and contact our office to explore your options.
In a jury trial, the jury decides some aspects of the case, and the judge chooses others. Juries can make decisions regarding conservatorship (how parents make decisions for their children), geographic restrictions, property valuations and characterizations, reimbursement and fraud claims, and certain torts. Jury trials allow a panel of your peers to make determinations rather than just one person (a judge). Depending on the case, this type of trial may be very advantageous, but to fully utilize these benefits, the lawyers involved must have specialized experience and complete additional work before and during the trial.
Most counties, like Travis County, require specific pre-jury-trial procedures. Others, like Fort Bend County, have no specific rules on pretrial procedures, and others, like Harris County, have similar pretrial procedures for both jury and bench trials.
Before trial, the court requires that the parties exchange exhibit lists and witness lists. If witnesses are going to testify through deposition, lawyers are typically required to identify which deposition testimony is going to be used and any objections to that testimony they may have. Lawyers are also usually required to attempt to work out objections to any exhibits before the trial starts to avoid arguments in front of the jury.
A motion in limine requests that the court orders that certain information not be presented in front of the jury, absent court permission. For example, if a case is a modification suit, lawyers often 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 first approach the judge to ask for permission before they can present that evidence to the jury.
A strong limine order could impact opening statements and affect the presentation of evidence. An experienced lawyer will examine the facts to determine what should be precluded, 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 that explains their duties to them and poses the questions they are to decide. How questions are posed to juries can significantly impact the decisions they make, so it’s important to pay attention to every detail in a charge.
A jury charge is not finalized until the official charge conference takes place after both sides have ‘rested’ (concluded presenting evidence), but before closing arguments. However, although the charge may change, most courts require lawyers to exchange their proposed jury charges before trial begins. By exchanging charges early, the court will be aware of potential issues that may come up in the trial and the charge conference.
If a party designates an expert that the other party believes is unqualified, that party can file what is called a Daubert challenge. Some local rules require that challenges be filed and set for a hearing before trial, and other jurisdictions address expert challenges at the time of trial.
Most courts conduct pretrial hearings the week before the trial, and some courts, like Travis County, conduct pretrial hearings the morning of the trial. At pretrial hearings, the court will hear motions in limine and may also hear any Daubert charges. The court may also start an informal charge conference to discuss differences in the proposed jury charge.
After pretrial, lawyers conduct jury selection. Before the trial, selected 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 fill out a questionnaire about themselves that asks for information such as age, sex, ethnicity, religion, marital status, employment, etc.
Potential jurors compose what is called a jury panel. A typical panel consists of 45 potential jurors, and a large panel can include up to 60 jurors—it is uncommon to have more than 60 jurors, but it is possible. Before the potential jurors arrive, the lawyers receive the questionnaires the potential jurors completed. Typically, the lawyers will have 30 minutes to an hour to review the surveys. At this time, the lawyers will start analyzing the potential jurors and deciding whether or not they will be favorable for their client.
Potential jurors will be given number assignments. As explained below, potential jurors with lower numbers are more likely to be selected for the 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 potential jurors arrive, they will all be given cards with an assigned number and seated accordingly. At this point, voir dire begins. Voir dire is the process in which both lawyers 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 voir dire, each side has 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 a panel because of a bias he or she exhibits. For example, in a custody case, if a potential juror says that they believe mothers should always get custody or that the court system favors women, he or she may be struck for cause because of their bias. There are a variety 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.
Peremptory strikes are each side’s opportunity to remove jurors for any reason (except racial bias) without citing a justification. In district court, both sides get six peremptory strikes. In county court, both sides get three.
During voir 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 ‘commitment questions.’ For example, if a trial is about a mother wanting to remove a geographic restriction so she can accept 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?” The difference is nuanced but distinct.
At the conclusion of voir 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 give both sides 5-10 minutes to develop peremptory strikes.
Once the judge rules on all the strikes for cause and receives the peremptory strikes, jury selection will be finalized. The judge will begin with juror number one and take the first twelve, or six in county courts, potential jurors – excluding jurors struck from the jury pool. Sometimes the judge will also choose an alternate, particularly if the trial is long. At that point, the judge will excuse the jurors which were not selected. The judge will then swear in the jury and provide them with basic instructions.
Jury trials proceed in the same manner as bench trials, but there are a few key differences.
Like a bench trial, lawyers make opening statements at the start of a jury trial. The petitioner (the party that filed first) makes the first opening statement. The respondent can then either make an opening statement or reserve. Most lawyers make an opening statement after the petitioner’s opening statement.
After opening statements, the petitioner introduces his or her evidence. The respondent can question witnesses the petitioner calls and introduce exhibits through those witnesses, but 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 may 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 for a reasonable jury to rule in the petitioner’s favor. If granted, the issue will be taken away from the jury as a matter of law, and the judge will deny the relief granted before the jury gets the issue. Directed verdicts are rare, but a valuable tool nonetheless.
Once the petitioner rests, it is the respondent’s turn to present 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 a 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. During this conference, 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.
When the charge is ready, the jury will return to the courtroom where the judge will read them the charge, and the lawyers will make their closing arguments. The petitioner makes their closing argument first. After the petitioner finishes, the respondent will make a closing argument. The petitioner will then have one final 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). Before they start deliberating, the jury will select a foreperson, and the exhibits admitted into evidence will be taken back to the jury for them to review. 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 will 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, they will notify the judge, and they return to the court where 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, a JNOV may only be granted by the judge if there is no legal basis for a reasonable jury to rule as it had.
After the jury reaches a verdict, the judge will either rule or receive additional information on issues that are to be decided by the judge. For example, a judge can decide possession and access for the children of the parties, and when the jury reaches a verdict, the judge may 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.
While some lawyers can explain what a jury may decide, few can adequately explain why you may want a judge and jury instead of a single judge. Of course, each case is different, but generally speaking, if a judge ruled against you in temporary orders, mental health professional is against you, relocation is an issue in your case, or separate property is an issue in your case, you may want to have a jury.
In most jurisdictions in Texas (Travis County and Bexar County being the exceptions), a case is assigned to a single judge, and that judge hears every issue in the case. If you and your spouse have a dispute about child custody at a temporary orders hearing and the judge rules against you, you may be concerned that the judge will produce a similar or identical outcome at the time of final trial.
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 less likely to rule differently at the time of final trial when they have already formed opinions about the circumstances and parties in the case.
We frequently hear that mental health professionals, like guardian ad litems or child therapists, simply get cases wrong. Often a judge will appoint a guardian ad litem to advocate the best interest of a child; but instead the guardian does a poor job or won’t do the work necessary to support their position.
In these instances, litigants often worry that the judge that appointed the professional will be hesitant to disagree or rule against them. Juries, on the other hand, tend to examine the opinion and work of mental health professionals and guardian ad litems very closely. Our experience is that a jury will work hard to keep the mental health professionals accountable. If the professional does a poor job or fails to fulfill their duties, the jury may disregard the professional’s testimony.
As mentioned above, a jury can decide what geographic restrictions (if any) may be placed on the child’s residence. Even though one parent may have the right to determine the child’s primary residence, a judge or jury may decide to restrict the region in which that child may live. A typical geographic restriction is that the parent who has the right to determine the primary residence of the child must live in the county (or any surrounding county) in which the case is filed.
This type of restriction can cause a great deal of family conflict because a parent may want, or even need, to move to another area for family support, new relationships, or work. Although these needs are valid, the restrictions judges set to relocation are usually quite strict, and leeway is challenging to achieve without an experienced lawyer.
Juries can determine the character of marital property; if either spouse claims that something is separate property, a jury can determine whether or not that is the case.
Why would you want a jury to determine the character of your property? It is, of course, a case-by-case decision, but when juries characterize property, they must follow the ‘clear and convincing’ burden of proof. If litigants worry that a judge will not rule in their favor on these issues based on other factors in the case, the more formulaic approach juries take may be more favorable.