It is 8 o’clock on a Monday morning, and trial begins in an hour. I arrive first and pick the table closest to the jury box. As I settle in, I take in the room. The bailiff sits across from me; he looks my way, nods his head and returns to his newspaper article. The court reporter comes in, and I give him my business card. I sit down, catch my breath and wait.
New lawyers representing clients at trial must be well prepared physically and mentally for whatever surprises occur in the courtroom. This article gives a short synopsis of the trial process, beginning with jury selection.
“All individuals are considered competent jurors unless disqualified by statute,” according to Texas Government Code §62.101. Qualifications to serve as a juror are listed in §62.102, and disqualifications are listed under §62.105.
There are only two ways to object to prospective jurors: Challenge the selection of jurors under §62.001-62.021, and request a jury shuffle under Texas Rule of Civil Procedure 223. If no one makes an objection, the jurors are assembled and voir dire examination begins.
“Voir dire” generally refers to the process of questioning prospective jurors about their backgrounds and potential biases before their selection to participate in the trial process. It protects the right to an impartial jury by exposing possible juror biases.
The party with the burden of proof on the whole case, typically the plaintiff, initiates voir dire. The trial court has broad discretion on its control of the voir dire process.
The jury begins to make assumptions and judgments during this process. Jurors form their first impression of the attorneys and the case. Therefore, counsel should project confidence while avoiding the appearance of arrogance during this time. Jurors are quite perceptive. They like attorneys who listen to them and who value their opinions. Voir dire is when counsel should begin connecting with the jurors by being persuasive, personable and genuine.
Attorneys should ensure that the court reporter records the complete voir dire, including bench conferences, in case of error. Texas Rules of Civil Procedure enumerate what constitutes a complete voir dire.
An attorney has two ways to seek a juror’s removal. The first is the challenge for cause, which Texas Rule of Civil Procedure 228 explains is an objection alleging some fact that by law disqualifies the person from service or renders the person unfit to serve on the jury. There is no limit on the number of challenges for cause. However, after the challenges for cause, at least 24 people must remain on the panel in district court.
The second way to remove a juror is a peremptory challenge, which the lawyer makes after both sides interview the jurors and the judge has resolved all challenges for cause. Each party in a two-party case is entitled to six peremptory strikes. A party may challenge any peremptory strike that violates a panelist’s equal protection rights; this is called a Batson challenge, after the 1986 U.S. Supreme Court decision in Batson v. Kentucky.
After the peremptory strikes, the clerk calls the names of the remaining panelists. In district court, the first 12 panelists not struck constitute the jury panel. An attorney should ask the court reporter to take possession of the juror information sheet and the strike lists and then request their inclusion in the record to preserve any error.
After Seating the Jury
After the jury is impaneled, the parties make their opening statements. Trial lawyers should make good eye contact with jurors, speak in the active voice using present tense and use simple language with key phrases. An opening statement should be brief and tell a story. It also should explain the nature of the claims or defenses, the relief sought and what the parties generally will prove during the course of the trial.
Again, the party bearing the burden of proof on the whole case, typically the plaintiff, makes the first opening statement. In a two-party case, the adverse party has the option of making its opening statement immediately after the plaintiff’s or right before the adverse party introduces its own evidence.
At this point, it is advisable to invoke Texas Rule of Civil Procedure 267, known as “the rule.” This request requires the trial court to administer the oath and instruct the witnesses to leave the courtroom so they cannot hear other witnesses’ testimony and be unduly influenced. Texas Rule of Civil Procedure 267(b) discusses exemptions from this rule.
The next step is the introduction of evidence. Most evidence is introduced in the form of witness testimony; Texas Rule of Evidence 701 governs fact witness testimony, while Rule 702 governs expert witness testimony.
The plaintiff will begin direct examination of its witnesses (without asking leading questions) unless the witness is an adverse witness, a hostile witness or identified with an adverse party. The defendant has the opportunity to cross-examine, and leading questions are proper in cross-examination. The plaintiff can redirect, and the defendant can re-cross.
During these examinations, the attorney can impeach or rehabilitate a witness. Only one counsel on each side can examine and cross-examine the same witness, except on leave granted by the court. Additionally, lawyers can introduce evidence in the form of documents. Texas Rules of Evidence 401, 601, 602 and 901(a) govern the use of documents during trial.
Objections prevent the introduction of evidence at trial and before the jury. Lawyers can file various objections before and during trial, and new lawyers should read about the timing and types of possible objections in advance of trial.
After the plaintiff completes its case in chief, the defendant may move for directed verdict. At this point, the defendant may make its opening statement, unless it has already done so. The defendant then puts on its case-in-chief, and the whole process begins again. After the defendant rests, either party can request a directed verdict.
Once the plaintiff or the defendant rests, the other party is allowed rebuttal testimony. When rebuttal is complete, all parties close evidence and, again, any party can move for a directed verdict. Even after closing, a party may move to reopen — to present additional testimony if it is necessary to preserve justice.
Next, attorneys submit to the court what they want in a charge, and an informal discussion of these matters takes place. The charge consists of the instruction-and-definition section and the questions section. The court then decides what it wants in the charge, draws the charge up and submits it to the attorneys for objections. After the judge rules on all objections, the judge reads the charge to the jury before the attorneys make their final arguments.
During final argument, attorneys must restrict their arguments to evidence in the case and matters of common knowledge; they cannot go outside of the record. The party bearing the burden of proof on the whole case has the right to open and close final argument under Texas Rule of Civil Procedure 266. The plaintiff is usually the first to present its entire case in the concluding argument. The defendant then presents its case to the jury. Under Texas Rule of Evidence 269(b), the plaintiff’s rebuttal is limited to matters in reply to the defendant’s argument.
The jury then retires to deliberate. Once the jury returns the verdict, the court enters judgment on it. A verdict does not become an official act until the court receives and accepts it.
Therefore, as soon as the jury returns the verdict, the parties should review it for errors; if they find any, attorneys should ask the court to poll the jury before discharging jurors. This procedure is especially relevant when the jury returns a less-than-unanimous verdict. If there is a conflict or inconsistency in the jury’s verdict, the parties must object before the court discharges the jury. Once the court receives the verdict, the court will discharge the jury. Once it does so, the court cannot recall the jury.
This is a condensed view of the trial process. Any new attorney who will be in the courtroom needs to read the Texas Rules of Civil Procedure, the Texas trial practice guides, talk to seasoned trial lawyers, attend trials or watch videos of trials, and have a mentor who will be a helpful guide before taking a client’s case to court. The trial lawyer should know the courtroom, the local rules, the judge and opposing counsel. Additionally, a trial lawyer must understand when to object, how to preserve error and how to elicit testimony. A trial is a test not only of the facts and the evidence presented but also of each attorney’s ability to persuade at least 10 out of 12 people.