Two outstanding Texas trial lawyers—one now an equally respected district judge—have written On the Jury Trial, a must have”reference for any trial lawyer aspiring to excellence or seeking to maintain it. Topics include voir dire, opening statement, preparing witnesses, cross examination, using exhibits, closing argument, jury research, and more, with excellent examples and “do's and don'ts” provided throughout. Think of this book as the senior law partner's memo to associates on how to really try a case. Looking for fly-on-the-wall insight into world-class trial preparation and strategy? Here it is. A behind-the-scenes tour of the inner workings of the judicial process? This book has you covered. Its combination of advice, illustration, and commentary is every bit as valuable as it is unique. Every litigator should have this book on the shelf, no matter the state in which they practice. THOMAS M. MELSHEIMER has tried cases for more than thirty years. He has been named“Trial Lawyer of the Year" by the Texas Chapters of the American Board of Trial Advocates and by the Dallas Bar Association. Before being elected to the 192nd District Court in Dallas County in 2006, JUDGE CRAIG SMITH was an accomplished Texas trial lawyer for more than twenty-five years. As a judge, he was recognized as Trial Judge of the Year by the Dallas Chapter of the American Board of Trial Advocates.
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About the Author
THOMAS M. MELSHEIMER has tried cases for more than thirty years. He has been named “Trial Lawyer of the Year” by the Texas Chapters of the American Board of Trial Advocates and by the Dallas Bar Association. Before being elected to the 192nd District Court in Dallas County in 2006, JUDGE CRAIG SMITH was an accomplished Texas trial lawyer for more than twenty-five years. As a judge, he was recognized as Trial Judge of the Year by the Dallas Chapter of the American Board of Trial Advocates.
Read an Excerpt
The process of selecting a jury varies by jurisdiction. In most federal courts voir dire is conducted exclusively by the judge. In Texas state courts, attorney-conducted voir dire is the rule. This chapter focuses on the effective conduct of attorney voir dire, in Texas or anywhere else that permits the practice. It's a shame that attorney voir dire is not permitted in all courts. There is an old saying that the best judge-conducted voir dire is not as effective as the worst attorney voir dire. We believe that to be true, with no insult intended to the judiciary. A trial judge, no matter how skilled she was as a trial lawyer, is simply not in a position to conduct the kind of searching and information-generating voir dire that a lawyer immersed in the details of his case can do. After all, it's not the judge's jury. It's the lawyer's. Or certainly that is the way we see it.
The "Old School" Voir Dire
When we first started trying lawsuits in the 1980s, the conventional wisdom about the best way to conduct voir dire was much different than it is today. Although this book is not a history of trial practice, it is useful to consider why voir dire used to be conducted a certain way and why, today, we recommend a different approach.
It used to be that voir dire was seen, in Texas state courts certainly, as the first shot at the opening statement. Judges were typically fairly generous with the time allotted to the process and very "hands off" during the lawyer's questioning of the panel. Indeed, the questioning was usually preceded by a relatively complete summary of the case. When questioning began, it was typically rooted in an attempt to "sell" the merits of the case, and most questions embodied some factual circumstance of the case about which prospective jurors would be asked to agree or disagree.
"How many of you agree that it is important to keep a promise?" (asked by a plaintiff in a breach of contract case)
"How many of you have heard or read about someone not following instructions and being injured using a power tool?" (asked by a defendant in a product liability case)
These kind of questions were akin to what is today called a "push poll," a practice where, under the guise of testing public opinion on an issue or a candidate, the pollster attempts to influence the answer to the question. "Do you still support Councilman Williams even though he has a drinking problem?" But for the same reason that push polls don't give an accurate read of the electorate, the kind of voir dire questions that push or sell a version of the evidence don't accomplish the most important goal of voir dire, which is this: obtaining information.
As trial lawyers began to rely more heavily on professional jury consultants, many of whom are trained in the academic disciplines of psychology or communication, the importance of obtaining information and identifying jurors who are most likely to be skeptical or opposed to your client's position became the fundamental goal of voir dire.
For Cause vs. Preemptory Challenges
The goal of identifying "problem" jurors applies in both the exercise of "for cause" and preemptory challenges. In a challenge for cause, the task is to convince the trial judge that a potential juror has a preexisting bias or prejudice that will prevent the juror from deciding the case based on the evidence introduced in court and the legal instructions given by the judge. Different judges have different standards for making this assessment, and the law in most jurisdictions, certainly Texas, has created obstacles to making a legitimate for cause challenge. But even if the juror you identify as problematic cannot be excused for cause, those same concerns will almost always lead you to exercise a preemptory challenge for that potential juror.
Conducting a voir dire today
Understanding where we have come from in voir dire can teach us how to conduct an effective voir dire today. The focus should be almost exclusively on identifying venire members who may be, because of their particular life experiences, hostile to your client's position. Simply put, it's not about whom you like. It's about whom to strike. That's easy to say, but how do you go about coming up with lines of inquiry to identify problem jurors? Where do you even begin?
You begin with your case and your client. The kinds of venire members you are concerned about will, of course, vary by case and client. If you are representing a plaintiff in an employment discrimination case, you are likely to be concerned about panel members who are managers or supervisors. If you are defending a products liability case where the alleged defective product is a toy, you may be concerned about panel members who are mothers of young children.
It is critical to identify the potentially problematic jurors for your case. But this process is, for the vast majority of cases, very imprecise. Certainly, if you have the resources to hire a jury consultant and conduct multiple research exercises, you can bring a bit more precision to the task. But it will always necessarily rely on a highly educated hunch, or a hunch about which you have high confidence. But a hunch nonetheless.
We recommend making a list of characteristics you most fear in potential jurors. Then create a hypothetical "nightmare" juror for your case and use that hypothetical juror to assess the actual panel members. Later in this book some general examples will illustrate what we mean.
If you are representing a plaintiff, who is in every case something of a "victim" — a victim of a broken promise, a defective product, fraud, or someone's carelessness — you will be understandably leery of any panel member who, because of their life experiences, may lack empathy for your client. Jurors who place a premium on "personal responsibility" or "accountability" may not be desirable jurors for this specific type of case. People who work for large companies that more typically appear in lawsuits as defendants may be also pose problems.
Conversely, in a defense case, you likely want to avoid panel members who see themselves as victims. Former plaintiffs in lawsuits are an obvious example. But so may be people who are unemployed or who see themselves as underemployed. Changing jobs frequently can also be a proxy for disappointment or frustration, which can indicate a "plaintiff leaning" panel member.
We've just used the word "proxy" and it's a good word for talking about voir dire. No matter how extensive and lengthy the voir dire process is, we will never know enough about any panel member to make truly reliable assessments. Therefore, we must use proxies for those characteristics that concern us. Developing a list of "proxies" for use in jury selection is a useful way to take limited information and use it to draw comfortable conclusions about which panel members to strike. Put another way, sometimes you have to judge a book by its cover because there isn't anything else to go on. In jury selection you will be doing at least some of this, and you must learn to do it in a way that is reasonable or you'll miss an important way to help your client.
Below are some time-honored "proxies" for identifying panel members who will tend to be more defense-oriented:
Lengthy job history with a single company
Managerial or executive positions at an employer
Regular church attendance
Belief that there are "too many" lawsuits filed
In contrast, here are some similar proxies for identifying panel members who will often be more plaintiff oriented:
No formal education past high school or its equivalent
Frequent job changes
Frequent residence changes
Belief that large companies have too much influence in society
Sometimes, the process of identifying the "nightmare" juror will come down to a single issue. An example would be the case of the SEC v. Mark Cuban, as it illustrates the importance of conducting voir dire with the sole purpose of identifying potentially hostile panel members.
We note that the Cuban case was tried in federal court, but the trial judge only allowed a limited ten minutes of voir dire. That's hardly enough time for most lawyers to introduce themselves and their client let alone conduct a useful voir dire. On the contrary, shortening the amount of time had some real benefits. Ten minutes of voir dire requires an intense focus of the mind on what the key issue for jury selection really is, and both sides in this case had a very firm idea of what a "bad juror" would be.
The case involved an alleged oral agreement to keep certain information confidential. The government's chief concern was identifying jurors who would view an oral agreement as less significant or less meaningful than a written one. So the SEC asked questions designed to identify any juror who expressed doubt about the legal weight of an oral agreement.
On the Cuban side, the issue was a bit more general. There wasn't a particular legal principle or evidentiary issue that worked for or against him. Rather, the concern was to identify jurors who had a negative impression of Cuban himself, because of his enormous wealth or his outspoken nature. Cuban's lawyer put the question to the panel very directly: "Is there anyone here who has a negative view of Mark Cuban because he is one of the richest people in America? Or because he expresses his opinions frequently and sometimes loudly?"
At first blush, it might seem that for both the government and Cuban, the voir dire was starting off with something of a negative question — suggesting that oral agreements may have less weight for some people or suggesting that some people might have a bias against the very rich. But that is the absolute fundamental purpose of voir dire — to identify venire members who evince a bias or prejudice about your case or client that can be the basis for a for cause challenge or, failing that, the basis for an intelligently exercised preemptory challenge.
Another example illustrates this principle even more starkly, and it too involves the concept of an oral versus a written agreement. Several years ago in Dallas, a lawyer brought suit against his law firm alleging that the firm had breached a promise to him regarding his compensation. The lawyer's allegations were based on various oral representations made to him by the firm's leaders. The firm, of course, denied making the representations and pointed to written agreements that did not contain the alleged promises the lawyer claimed had been made to him.
The lawyer's counsel began voir dire with a question that framed the issue in a seemingly very negative way for his client. He asked it this way: "How many people think that a lawyer who doesn't get an agreement about his compensation in writing doesn't deserve to recover anything?" Unsurprisingly, many panel members raised their hand and agreed with this principle. The defense lawyer likely took some confidence in this initially, as it appeared that the panel was stocked with potential jurors hostile to the very core of the plaintiff's case. After all, shouldn't a lawyer know better, especially one seeking to recover millions in allegedly promised compensation? But the effect of this question was to allow the lawyer's counsel to disqualify many of the people who raised their hand for cause because he was able to demonstrate, through individual questioning of the panel members, that their view of lawyers and the need for written agreements was a bias or prejudice that prevented them from serving on the jury.
Here's a similar example from an outstanding trial lawyer and good friend, Dick Sayles of Dallas. He, like other great trial lawyers, understands that an effective voir dire is measured by how many potentially hostile jurors it allows one side to excuse. He colorfully recounts the following story:
"I tried a jury case in Sulphur Springs defending a major manufacturer of an auger wagon. Coy Johnson, the then Bull of the Woods in that county, represented young Jose Mendoza, a Hispanic man who got inside the auger wagon, with the power from a tractor spinning the auger at high speed, and literally tried to 'skate' down the auger from one end of the wagon to another. This was done by Jose and other co-workers for amusement, without incident — literally a modified game of Russian roulette! Of course, Jose finally slipped off the auger and his leg was promptly augured off by being twisted around the auger shaft five times in less than two seconds. If it had not completely severed his leg he would have been killed in the most gruesome fashion. Of course, my client representative and their in house counsel thought the case was ridiculous, frivolous — contributory negligence, assumption of the risk, etc., etc. I on the other hand knew Coy was very good in the courtroom and well known by all the people in the county, which of course included the jury panel.
"I had my northern brethren at the counsel table with me for voir dire, with which they were not well acquainted and it began with Coy going first — his was short. He described the event in no more detail than I tell it above, then asked one question: 'Raise your hand if you have a concern about being fair to my client Jose Mendoza?' Almost every hand went up! When we got through going through the individual questions three fourths of the panel was excused for cause — everyone who thought Jose was stupid, negligent, how could he do that ..., he wants money for that? ... anyone knows that would get you hurt ... and on and on. Those prospective jurors, the ones we wanted, all went right out the door at the back of the court room — excused by the judge for cause because 'they couldn't be fair to Jose.'
"My esteemed inexperienced 'co-counsel' (in-house counsel who sat at the table and took no part in the trial) said 'Mr. Johnson's voir dire was terrible — it was the worst I ever heard' to which I simply replied 'It was the best I ever heard.'"
We set out below a more substantial portion of a voir dire conducted by Frank Branson, one of the country's finest trial lawyers, in a business dispute involving allegations of fraud. You will see Branson use many of the principles we've mentioned to achieve the goal of identifying "bad jurors" for his case.
MR. BRANSON: Thank you, Your Honor.
Good morning, ladies and gentlemen. Thank you. What this is about is us visiting with you about opinions you might have coming into the trial, and you opening up and telling us your thoughts on some subjects.
Let me begin — by the way, this is the only point in the trial you have to talk.
Let me begin by reintroducing my clients and the lawyers who will be here with me in the courtroom and our staff.
Dr. Erwin Cruz, Eric Stahl, John Burkhead. This is Tom Farmer, and this is my bride of 26 years, Debbie Branson sitting next to me.
No matter what you say, if you say something that you think might be offensive to some of us, it is not going to make any difference. We need those answers. If you don't like my hair style, for example, don't hesitate to say something about it.
But if you don't share with us your information, we can't do our job. And I will let you in on a little secret that I have learned over lots of battles in courtrooms. If you don't say anything, if you just sit there and be a nice person and quiet like most of us try to do all the time, you substantially increase your chances of getting on the jury. Because when we get through, we each take our lists, and we strike those who we think might not be the best for our clients in the case.
This sort of introduction is typical in a voir dire. It sets out how the selection process works and encourages the venire members to speak up.
And so anyone who hasn't talked is a blank, and they end up getting selected more often. So it will both help us and I suspect help you if you've got a busy week.
In fact, let me begin by saying, I had two choices this week. I could be sitting out there with you guys, or I could be up here where I am. I was on jury duty this week also. It seems to always happen that way, and I had to make a choice of going down and moving my jury duty to another time.
Debbie and I had been in trial for about six weeks out of state, and my first day back in the office — and my office looked like Sherman's army had marched through and burned and looted while I was gone — I had jury duty.
Excerpted from "On the Jury Trial"
Copyright © 2017 Thomas M. Melsheimer and Craig Smith.
Excerpted by permission of University of North Texas Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
List of Figures vii
Praise for On the Jury Trial ix
Voir Dire 5
Opening Statement 37
Preparing Witnesses: Direct Examination and Cross Examination 73
Cross Examination 101
Working with Expert Witnesses 125
Using Demonstrative Exhibits and Other Aids in Trial 139
Closing Argument 151
Court's Charge 181
Jury Research 187
Motions in Limine 195
Know Your Audience 203
Judge's Viewpoint 209
Trial Lawyer's Viewpoint 223
Appendix on Preparing Witnesses for Deposition 237
Appendix on Legal Writing Tips 251