Uncontested cases may be disposed of at any time after sixty (60) days by agreement. On the other hand, if the respondent has made an appearance, the case is not “uncontested”, regardless of the tenor of the respondent’s pleading, and the respondent is entitled to notice of a trial date.
A suit affecting the parent-child relationship may be entitled to a preferential setting, taking a day and time for the trial ahead of other civil cases filed earlier. The Family Code provides that the court may grant a motion for a preferential setting filed either by a party or the attorney or guardian ad litem for the child if, after hearing, the court finds that the delay created by ordinary scheduling practices will unreasonably affect the best interest of the child.
Nonetheless, unless the trial date is set by agreement, all parties must receive reasonable notice, at least 45 days, of the first setting for trial. Thus, a party who has made an appearance in a contested proceeding, by filing a written answer or otherwise, is entitled to 45 days notice of the first trial setting.
Judge or Jury Trial
Then there are disputed issues appropriate for determination by a jury (asset value, child custody, fraud, cruel treatment, and the like), counsel’s decision to request a jury trial should involve consideration of such matters as:
- the attitudes (and past history in similar cases) of the trial judge, as well as the the attitude, feeling, or climate of the community regarding the issues to be presented. Note – Often, commentators, seminar speakers, some judges, and many trial lawyers believe that a jury may be swayed by emotion more so than a family court judge. This may well be true, despite the fact that the jury will be instructed not to let sympathy play a part in it decision.
- The abilities of the attorneys, understanding that some just have a better rapport with jurors than others.
- The increase in cost to the client stemming from a jury trial.
- The length of time that may be necessary to get a setting on the court’s jury docket, as opposed to a nonjury setting.
- The need for a child to testify or to express a choice about custody. In a nonjury trial, the judge may interview the child in chambers; in a jury trial, the child may not be competent to testify, depending on his or her “intellect to relate transactions,” as determined by the trial judge. If the child is 12 or more years of age and has a choice for managing conservator, his or her testimony would be very persuasive with a jury; the trial judge, on the other hand, is not bound by the choice. In all instances of child custody determining the “best interest of the child” standard will control.
Picking the Jury
Prospective jurors are selected by county officials. Persons selected are summoned to the courthouse and empanelled by a judge into a central or general panel. From the general panel, prospective jurors are randomly selected and assigned for service in a particular court. In Dallas county, where there is more than one court and the panel members are interchangeable among them, a litigant may demand that the trial judge to whom jurors are sent from the general panel “shuffle” the list; that is, that the names of those on the assigned panel be placed in a receptacle, shuffled, and drawn, then transcribed in the order drawn to comprise the list from which the trial jury is to be selected.
Once the panel for the particular case is in the courtroom, the trial judge will administer an oath to the prospective jurors to the effect that each of them will give true answers to all questions concerning juror qualifications, as well as read certain admonitory instructions, which typically include an introduction of the parties and their respective counsel.
In Dallas courts, the trial judge will ask general questions of the panel concerning their qualifications as to the particular case at hand, such as knowledge of the facts or parties, involvement in similar litigation, and so on. Counsel should take note of the responses of the prospective jurors and not repeat the inquiries during voir dire. Additionally, Dallas courts allow counsel to submit jury questionnaires to be filled out by jurors before voir dire. A great deal of personal information can be obtained in this way.
At the conclusion of the judge’s opening remarks and admonitory instructions, the attorneys are allowed to examine the panel by what is known as “voir dire” examination, with the party having the burden of proof in the case going first. The attorneys will be given a list of the prospective jurors’ names and addresses, usually showing the names (and a corresponding number) in the order in which the jurors are seated in the courtroom. In some counties, the jurors have completed a questionnaire while in the central jury room. The questionnaire from each juror will be furnished to counsel as the prospective jurors are being seated in the courtroom.
The examination of prospective jurors is intended to allow the parties to uncover any prospect’s bias or prejudice against a party or some issue or contention in the case. So that a prospective juror may answer truthfully any questions about past experiences or background that could sway his or her decision, counsel should explain the nature of the case, the evidence expected, and the contentions that will be made, then proceed to question the panel and the prospects.
A challenge for cause is an objection to a juror, stating some fact that disqualifies the juror, such as:
- Interest in the subject matter of the case.
- Relationship to a party.
- Bias or prejudice in favor of or against a party in the case.
- Renders the person unfit to serve on the jury.
Furthermore, each side in a jury trial has the right to strike or excuse prospective jurors without stating any reason for doing so, as a general rule. Accordingly, this right to excuse a prospective juror without cause is known as a “peremptory challenge”.
Submitting the Jury Charge
At the conclusion of the case and before the arguments of counsel, the trial judge will read a written charge to the jury. After closing arguments, when the jury retires to deliberate, the written charge will be given to them so that their answers to the questions can be written in the spaces provided. In a custody trial, the issue presented to the jury will be to name the parent who should be named primary conservator. This is the parent to whom the term “full custody” is applied. This is also the parent who will receive child support. The standard is best interest of the child.
In a property case, the issue will be to characterize property as being either separate or community property. In Texas, all property is presumed to be community property unless a party proves the property was a gift, an inheritance or was owned before marriage. Then it is separate property which the Court cannot divide.
Establishing the Contested Issues
Following the selection of the jury by the voir dire examination process, trial counsel is allowed to make an opening statement; that is, to state to the jury briefly the nature of the claim or defense, what the party expects to prove, and the relief sought.
Due to the wide latitude given counsel to describe their intentions and contentions during voir dire examination of the jury panel, trial lawyers often waive opening statements or make them very brief to avoid repetition. Conversely, others structure an opening statement to fit with the information revealed during voir dire. To the extent that voir dire did not do so, the opening statement can alert the jurors systematically to the issues they will encounter. The statement can show more clearly the party’s positions on these issues and counsel will ordinarily be permitted by the court to preview briefly the kinds of proof that will be offered. The attorney who takes full advantage of the opening statement may be able to condition jurors to see how items of evidence relate to each other and how they enhance his or her claim or defense. Properly used, an opening statement can set the stage for evidence that would otherwise be confusing and ambiguous so that the jurors perceive it in a more positive light. The opening statement, like other parts of the trial, is a part of the adversary process and should be carefully considered and planned.
To be admissible in evidence for the jury’s consideration, a matter offered must pass several tests. Foremost among those tests is the question of “relevancy”. It must be shown to the court’s satisfaction that the matter offered into evidence is relevant, meaning that it has a tendency to make the existence of a fact to be found by the jury more probable or less probable than it would be without the evidence. In order to be admissible into evidence, the relevant information must pass another test by being shown as “authentic”. To authenticate evidence means to identify it by the testimony of a competent witness (or otherwise as permitted by rules of law) to be what the proponent claims it to be.
To be admissible in evidence for the jury’s consideration, a matter offered must pass several tests. Foremost among those tests is the question of “relevancy”. If an objection is made to the relevancy, it must be shown to the court’s satisfaction that the matter offered into evidence is relevant, meaning that it has a tendency to make the existence of a fact to be found by the jury more probable or less probable than it would be without the evidence. In order to be admissible into evidence, the relevant information must pass another test by being shown as “authentic”. To authenticate evidence means to identify it by the testimony of a competent witness (or otherwise as permitted by rules of law) to be what the proponent claims it to be.
Common sense and the limits of relevancy may be the only restrictions on the scope of a direct examination of a witness. The examiner wants to impress the jury (and judge) with the witness’s testimony and thus should elicit the testimony quickly but thoroughly, without unnecessary excursions into pointless detail. When the examination is preplanned for a logical and interesting presentation, counsel need not worry that the trial judge will intervene to refocus the testimony.
Cross-examination is the most potent weapon known to the law for separating falsehood from truth, hearsay from actual knowledge, things imaginary from things real, opinion from fact, and inference from recollection. In Texas, to further these purposes, cross-examination is not restricted to the scope of the direct examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility
During cross-examination, leading questions may be employed if the witness is adverse, and, if the witness has given character evidence by a personal opinion or from knowing a person’s reputation, the cross-examiner may inquire if the witness knows or has heard about some particular conduct of the person in question. However, the cross-examiner may be required to demonstrate a good faith basis for such questioning As a general rule, the trial court cannot restrict a party’s right to a full and unfettered cross-examination of a witness. If a witness refuses to answer on cross-examination and the refusal is not justified by privilege or other lawful basis, the testimony of the witness could be stricken or a mistrial declared.
When an improper argument is presented to the jury, counsel may interrupt to make an objection. It has been suggested that the attorney has the right and a duty to make an objection whenever an improper argument is made; the trial judge may commit error if unreasonable restrictions are placed on that right. Of course, objections must not be frivolous or based on unimportant grounds. Interruptions of this type may be barred by the court.
A litigant will not ordinarily be allowed to urge on appeal that a violation of the rules defining permissible jury argument resulted in an improper judgment unless the litigant made a timely objection to the argument. Part of the trial lawyer’s art is the ability to make a quick decision about whether to object to something improper at trial. The decision has been described by one court of appeals as one of the trial lawyer’s “immediate difficult decisions” because it requires counsel to weigh instantaneously the risks against the advantages inherent in the process. On one hand, an objection to inflammatory, improper argument might block it from reaching the jury, diffuse its harm, or at least have the jury instructed to disregard the remark; in any event, a ground for reversal on appeal would be preserved.
On the other hand, an objection may tend to overly emphasize or call undue attention to an improper remark. Frequent interruptions might irritate the jury. An objection can also be used to the opponent’s advantage by suggesting that the topic of discussion reveals a weakness in the objecting party’s case. This issue was eloquently addressed in a case in Georgia: “For what practitioner has not regretted his untoward interference, when the counsel thus interrupted, resumes, “yes, gentlemen, I have touched a tender spot, the galled jade will wince; you see where the shoe pinches”.