Sep 08
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:
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:
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 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.
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.
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.
The Jury gets to decide the character (Community vs. Separate) of marital property, as well as the value of property. The Judge gets to decide exactly how the Community Property is divided.
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:
There are several reasons why you may want to opt for 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:
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.
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:
We are NOT the best choice for other clients. Here are some issues that make certain clients bad matches for our firm:
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!
Brian and his staff were great. Brian’s direction and expertise provided me with the legal information relevant for my needs over several years now. He listens and is steadfast which gave me comfort in the courses of action. I highly recommend him.Brian and his staff were great. Brian’s direction and expertise provided me with the legal information...
Larry M.
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