THE FAMILY LAW JURY TRIAL. MIKE MCCURLEY McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P Sherry Lane, Suite 800 Dallas, Texas 75225

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1 THE FAMILY LAW JURY TRIAL MIKE MCCURLEY McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P Sherry Lane, Suite 800 Dallas, Texas ELIZABETH DURSO BRANCH McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P Sherry Lane, Suite 800 Dallas, Texas State Bar of Texas 35 TH ANNUAL ADVANCED FAMILY LAW COURSE August 3-6, 2009 Dallas CHAPTER

2 TABLE OF CONTENTS I. SCOPE OF THE ARTICLE... 1 II. FIRST IMPRESSIONS AND PERCEPTIONS... 1 III. THEME OF THE CASE... 2 A. EXAMPLES OF THEMES... 2 B. CHOOSING A THEME... 4 IV. THE NUTS AND BOLTS OF VOIR DIRE... 7 V. THE OPENING STATEMENT... 9 A. BECOMING A STORYTELLER... 9 B. PRIMACY, RECENCY AND THE POWER OF THREE VI. ORDER OF PROOF AND WITNESSES A. ORDER OF PROOF B. WITNESSES VII. CLOSING ARGUMENTS A. LEGAL PARAMETERS B. EFFECTIVE CLOSING ARGUMENTS VIII. CONCLUSION... 18

3 THE FAMILY LAW JURY TRIAL I. SCOPE OF THE ARTICLE Success in trial is based upon the story and the storyteller. 1 Only Texas, New York and Georgia still permit the parties story to be told to a jury in a suit for divorce. 2 Texas, alone, permits a jury to determine the custody of a child. 3 Over the course of the decades of one s career, it is likely that a family law attorney will prepare for a jury trial, although the number of jury trials statewide is on the decline. 4 This paper examines the scope of the jury trial process: developing the theme of the case; voir dire; the opening statement; the order of proof; witness preparation; and, the closing statement. This paper is not designed to be comprehensive in scope as to each stage of the jury trial process, but it is designed to be a reference tool and a guide for the practitioner. II. FIRST IMPRESSIONS AND PERCEPTIONS At some point in time every lawyer envisions themselves standing before a spellbound jury, all of whom are mesmerized by the brilliance of the daydreamer s argument. The mock trial experience in law school, however, hardly prepares a novice lawyer for a jury trial in the real world. Canned facts and scripts simply are not adequate to guide a practitioner through the steps to prepare for a jury trial in the courtroom for a real client. Trial preparation begins with the initial client interview. 5 During that interview the attorney should focus his or her attention on the client while an associate or legal assistant take notes throughout the interview. The initial in-depth client interview is a time to watch the client, listen to the client, and to assess this client s ability to tell his or her story. The first impression that you have of your new client may or may not be the first impression of your client that 1 Spence, G., WIN YOUR CASE, St. Martin s Griffin Ed., New York, New York 2006, p.5. 2 See, TEX. FAM. LAW 6.703; Péralte C. Paul, A Jury in a Divorce Case? Yes, in Georgia, Atlanta Journal- Constitution, July 3, 2009; and, N. Y. Dom. Rel, 173 (New York law provides a right to trial by jury of the issues of the grounds for granting the divorce). 3 TEX. FAM. LAW Hecht, N., Jury Trials Trending Down in Texas Civil Cases, 69 TEXAS BAR JOURNAL 854 (October 2006). 5 Spence, G., WIN YOUR CASE, p. 159, stating that the client is your first source of information. you want the jury to have. During that first in-depth interview, ask your client to tell you what he or she expects to be the complaints of the opposing party. Remember that one needs to examine one s case from the other point of view in order to develop both offensive and defensive strategies. While carefully listening to the client s report of the facts, keep in mind that perception is reality. During the initial in-depth interview, you should be aware that what the client is telling you is their perception of the facts of the case. When the client responds to your inquiry as to what the opposing party s complaints may be, you will hear your client s perception of the opposing party s perception of the facts. Although the client and the opposing party have shared a home, shared experiences and, possibly, shared children, each one has taken away from those shared experiences individual and independent perceptions as to what occurred, how something occurred, why an event occurred. What an individual believes to be true is their personal truth. Whether trying a case to a judge or a jury, the trial attorney must be aware of the effect of a first impression. First impressions are particularly crucial in a jury trial because twelve triers-of-fact are forming first impressions of you, your client and each witness for your client. Eleven key decisions are made about a person during a first encounter. Among those eleven decisions are the perceptions as to that person s credibility, competence, honesty, and trustworthiness. Only one-tenth of a second is needed to formulate those decisions about a stranger by merely looking at the stranger s face. 6 Just as perception is the reality of the client, perception is also the reality of each individual juror. The trial lawyer s goal is to be perceived favorably by the jurors. 7 The first impression determined by a juror, as to your client, is that juror s perception of therefore, their reality as to your client. All subsequent information communicated to each juror throughout the trial is filtered through those eleven initial decisions made about your client, including credibility, honesty and trustworthiness. Always maintain your personal integrity, as trustworthiness is the foundation of the relationship between the trial lawyer and the trier of fact. 8 Every move, every inflection, every word and every gesture made in the courthouse 9 is a communication to the members of the 6 Willis J., Todorov A., First Impressions: Making Up Your Mind After 100 ms Exposure to a Face, Psychol. Sci. Vol. 17: (July 2006). 7 Nations, H., Overcoming Jury Bias, THE STATE BAR OF TEXAS: CHOOSING AND COURTING A JURY, 3, April 2001 (Dallas) and May 2001 (Houston), p Spence, G., WIN YOUR CASE, pp. 24, Always be mindful of what you say and do outside of

4 jury. To be perceived as credible, one must be credible. 10 Preparing and organizing your case, and planning the manner in which your case is communicated to the jury, enhances your ability to persuade 11 the panel members that the facts and the law support the decisions that your client is asking the jury to make. The theme of the case, voir dire, opening statement, the presentation of the evidence, the demeanor of the witnesses, 12 and the closing statement will all communicate your client s case to the jury. The theory of holism, attributed to Aristotle, surmises that the whole is greater than the sum of its parts. 13 Planning and preparation allows your case to come together so that its impact as a whole is greater than its individual parts, as the parts are completed and unified by the theme of the case. III. THEME OF THE CASE A. EXAMPLES OF THEMES the courtroom as jurors may be in the hallways, in the elevator, or in the restrooms. Communications outside of the courtroom also affect your client s case. 10 Spence, G., WIN YOUR CASE, p Nations, H., Overcoming Jury Bias, p. 38, citing the seven rules used by Sir Winston Churchill in crafting and delivering a persuasive speech: 1) Know, respect and love the English language. 2) See and hear eloquent speakers in action and study the text of their speeches. 3) Endure your handicaps if they can't be cured and turn them to your advantage. 4) Read good books to broaden your mind and including impact words, catch phrases, logical or stimulate your thinking, since much of eloquent speaking depends on both knowledge and thought. 5) Be sincere and use rhetorical devices to help your audiences understand and remember what you say, and to stir their emotions. 6) Put forth your best efforts to prepare your speeches and seize every possible opportunity to practice them. 7) Let your feelings or personality show in your speeches. 12 Witness preparation is not to be left to chance in a jury trial. See, Leach, J., Trial Skills: What Witnesses Need from the Attorney Who Prepares Them, HEADNOTES, p. 16, Dallas Bar Association (August 1, 2008). 13 Ancient Greek Philosopher, Scientist and Physician, 384 BC-322 BC. Sometimes the theme of a case is evident at its inception, such as the following true example: A former soldier was arrested and charged with driving while intoxicated. The veteran was stopped after a fellow traveler, an off-duty police officer from another county, witnessed the veteran driving on the wrong side of a major divided interstate and called the highway patrol. As the highway patrol arrived, the officers saw other drivers pulling onto the median and onto the grass to avoid a head-on collision with the swerving wrong-way driver. The suspected drunk driver was not a typical war vet he was a true national hero and recipient of the highest honor our nation bestows upon a serviceman. When the offense report landed on the desk of a young assistant prosecutor, she learned that this was not the first DWI arrest for this man. Attached to the report were reports from three other jurisdictions in Texas, revealing arrests for which no charges were filed. One report contained facts more egregious than the facts in the case before her. Veterans groups from across the nation called the young lawyer on a daily basis. Her own boss earned a Silver Star in that war. The hero s life was exemplary and it was obvious to her how loved and respected he was by his family and friends. The young lawyer found him to be kind, decent, humble and honest. She also found that the facts revealed that everything that had happened to that man on that day in that jungle haunted him, and he could only forget the horror with the help of his friend Johnnie Walker. Alcoholism was the only apparent weakness of this otherwise noble man. The young prosecutor herself was awed by this man s sacrifice for the United States, but she also believed that if she did not prosecute the case, he might not be remembered for his heroism. She told his Pentagon friends that she feared the legacy at the end of his life may not be his heroism and sacrifice, but his fall from grace as a drunken driver who killed a family in a head-on collision. Her oath as a prosecutor compelled her to see that justice is done. Voir dire was a nightmare for the prosecutor. Half of her venire panel was dismissed for cause because they stated they could not convict him. As panel members were excused, many stopped by the counsel table to shake the veteran s hand or to hug him. Many were in tears. After several hours, a panel of six was seated for the trial. She held fast to her theme in her opening argument. Nothing she said, through out the trial, diminished his heroism. Closing argument reinforced her theme. The Medal of Honor recipient was convicted of DWI that day. The jury sentenced him and 2-2 -

5 recommended probation. The Court probated his sentence provided that he obtained in-patient treatment at the veteran s hospital. The young prosecutor remained in touch with the old soldier until his death several years later. The theme of her case had been the story of Achilles. 14 More often than not, however, in a family law trial, there are multiple themes, interconnected themes, and/or sub-themes. The following is a true case wherein multiple themes assisted the jury s determination regarding custody and abuse: Following an acrimonious divorce, a young mother was awarded the right to determine the primary residence of her two young sons. Father s visits were irregular at best and Mother was truly the primary caretaker for both children. Mother s financial situation made is possible for her to remain a stay-at-home mother and volunteer at her children s school. Mother was active in her church and completely devoted to being a good mother. She considered motherhood to be the highest calling. The youngest child, however, turned out to be the school biter. Almost daily, the teacher reported that the young child had bitten yet another schoolmate. Finally, the private school s headmaster stated that the child would no longer attend that school and needed to be enrolled in another school. At the new school the biting behavior continued. The teacher and the school counselor at the new school held a meeting with the mother, seeking her permission to mildly swat the young child on the bottom with a ruler as a deterrent each time he sunk his teeth into a classmate. The mother acquiesced because there was no other school for the child to attend. The mother also acquiesced because the school officials advocated that a mild swat with a ruler would soon cause the young child to associate the swat with biting, and he would stop biting to avoid the 14 In Greek mythology, Achilles was the son of a sea nymph named Thetis and King Peleus of Thessaly. Because his father was a mortal, Thetis feared that her son would not live forever as other immortals. She took him to the river Styx, held him by his ankle and dipped the child into the waters so as to make him immortal. Aphrodite, the goddess of love, knew that Thetis had not completely submerged the child. Achilles grew to be a warrior, ultimately joining the army to fight Troy. Achilles rose to glory as a warrior but was killed in a battle with Paris, the Trojan Prince, who learned of Achilles weakness from Aphrodite. Paris ended Achilles life by shooting a poisoned arrow into his one vulnerable point his heel. swat. Mother also followed their advice to use this same deterrent at home for consistency between the school s discipline and discipline at home. Over and over, for a period of months, the earnest young mother continued to follow the advice of the teachers, but the aggressive biting continued. Finally, she sought the advice of a licensed health-care provider. The health-care provider suggested that when the little nipper bit someone, Mother should bite him back. Reluctantly, the young mother, after having been advised to do so, bit her young child s arm after he took a vicious mouthful of his brother s arm. The Friday following Mother s bite, Father decided to exercise his weekend possession. Father saw the bite mark and the faint red mark on the child s bottom. Father asked and the child replied that Mother bit him and hit him. The older child, when asked, stated it was true and added that mother swatted the younger with a ruler several times each week. Father called CPS and called his attorney; an emergency suit was filed to change conservatorship for the safety and welfare of the two children; Mother was served and the matter was set for an emergency hearing. Mother and her first attorney appeared in Court for the 20-minute-per-side emergency hearing on temporary orders. Father showed photographs and testified to the boy s outcry. The CPS investigator confirmed that their interview with the child was consistent with the outcry and that the children were in danger if they remained with mother. Father s attorney called Mother to the stand: You bit your son on the arm, didn t you? Mother admitted that she did. You struck your child with a ruler, didn t you? Again, Mother told the truth she had done that. Mother s attorney did not follow-up so that Mother could explain why. Mother s attorney did not subpoena the teachers, the friends who gave her advice or the heath-care provider who suggested that she bite him back. Mother s attorney did not make the most of her 20 minutes. Mother lost custody of her two sons and the Court ordered limited, supervised visitation. The small-town s grapevine lit up with the news that this church-going, apparently model mother was a closet child-abuser. Months passed and Mother s attorney was successfully stalled by artful foot-dragging and stonewalling of Father s attorney. Mother had seven months of monitored visits and there did not seem to be an end in sight. With the help of her parents, mother hired new attorneys. The new attorneys interviewed Mother at length and interviewed her well-intentioned friends, the child s teachers, the school counselor and the health-care provider

6 Psychological testing was ordered as a part of the custody evaluation. Discovery ensued. Foot-dragging and stonewalling tactics were met with motions to compel. A jury fee was filed. Discovery revealed that after every encounter with Mother, Father and his parents stripped the children, looking for bruises, and videotaped the naked children. To distract the children from the video camera, the boys were allowed to jump on the bed. The audio of the tape recorded Father s probing questions: Mommy didn t bite you this time, did she? Is that skinned knee where Mommy hurt you? Beginning with his voir dire examination, heavily focused on the venire men s thoughts about child abuse, Father s attorney s opening statement said: This isn t a custody case; it s a simple case of child abuse. He went on to tell the jurors how he would show that the outwardly innocent-looking young mother was actually the devil in disguise, beating her sons behind closed doors and inflicting bites on them. Father s attorney s mantra was No good mother beats and bites her children. Mother s attorneys developed multiple complementary themes. Yes, they concurred, this is a case of child abuse, but child abuse has many forms Don t rush to judgment. Within that theme were the subthemes that A rush to judgment is not justice and Hasty decisions result can result in mistakes. The steady stream of witnesses testified how the young mother sought the counsel of educators, her elders and professionals. Like the respectful person she was taught to be, the mother followed their advice believing that they were more learned and knowledgeable than she. In the context of what the educators and professionals admitted to having advised Mother to do, the faint red mark and the bite mark made sense. But the custody evaluator testified he still found child abuse in this case. In the evaluator s professional opinion, the repeated acts of video-taping the naked, bouncing boys while conducting alienating interrogations were nothing short of child abuse. The evaluator went on to say that he found a second form of child abuse, stating: It is legal child abuse for any lawyer to advise their client to video and interrogate two naked children week-after-week-after-week, just to win a custody case. The children were returned to Mother by the jury. As the two examples provide, the development of a central theme or themes for your case is the heart of your strategy when preparing for a jury trial. The overall presentation of your case plays a significant role in the jury s ultimate decision. 15 The theme should confront jury bias 16 and assist the jurors in adopting your model of the case. 17 The theme you select should have a maximum impact on the jurors while it explains the case to the panel members. Do not choose a theme to be clever; choose a theme that fits the facts of your case and the perception of those facts that convey your client s story. 18 Everything in life is a story. 19 You, the trial lawyer, are your client s storyteller. In each of the two examples above, the jury adopted the models of the case that confronted their biases and explained the case to them. By returning a conviction, the jurors were able to reconcile their admiration for the heroic sacrifice of a man with the need to save him from his alcoholism. By returning the children to the young mother, the jurors were able to recognize the injustice of rushing to judgment without the whole story. Those same jurors agreed that this had been a case about child abuse after all. A poll of the jurors following the trial revealed that the jurors found the actions of Father and the paternal grandparents were far more abusive and damaging to the children. B. CHOOSING A THEME Choosing a theme taps into your imaginative and creative talents. 20 Think back on the favorite stories of your youth and ask yourself why those stories are memorable, such as Aesop s story of The Tortoise and the Hare: 21 Once upon a time, a hare and a tortoise lived in the woods. The hare bragged to all 15 Terry, E.., Hayes, K., Foltz, A., Opening Statements and Direct Examinations, ADVANCED FAMILY LAW DRAFTING AND ADVOCACY: ART AND FORM 2003, 14, p. 1, December 2003 (Austin). 16 Nations, H., Overcoming Jury Bias, p Id. 18 Id. 19 Spence, G., WIN YOUR CASE, p Green, J. L., Developing and Using a Theme in Your Family Law Case, ADVANCED FAMILY LAW DRAFTING AND ADVOCACY: ART AND FORM 2003, 12, p. 1, December 2003 (Austin). 21 Aesop is believed to be a former slave in Ancient Greece who lived from 620 to 560 B.C. (remember that the B.C. years county backwards towards Year 1 A.D.). His many stories contained lessons in morals 4-4 -

7 about his sleekness and speed. The hare made fun of the others, but especially the bulky tortoise with his short legs and creeping pace. Tired of being ridiculed by the braggadocious hare, the tortoise challenged the hare to a race. On the day of the race, the two set off down the course. The hare sped ahead, only to u-turn back to poke fun at the tortoise s pace. I have been ahead of you and returned said the hare, and you have still not made as far as the spot at which I turned around. The tortoise said nothing as he plodded forward. Back and forth ran the hare, taunting the tortoise until the hare grew tired. The hare was not only weary from all the running, but weary that his insults were ignored by the tortoise. The hare, so far ahead of the tortoise and so sure of his ability to outrun the tortoise, decided to nap after all, he was so far ahead. Meanwhile, the tortoise never stopped, plodding slowly and steadily to the finish line. The cheering of the other woodland animals awoke the hare who realized that the tortoise had, indeed, won the race. 22 Some say that Aesop s moral was that slow and steady wins the race and others say that the moral is to avoid overconfidence. 23 Either way, the story is memorable because the moral is the theme. The story conveys the theme. Aesop s fables provide wonderful examples as to how a theme and a story work together. Another way to think of a theme is as the essence of your case. Remember the smell of new car? If that scent suddenly wafted into the room with you, right now without being told, you would probably think: New car. Remember that when one encounters a unique fragrance, one is left with the memory of the essence of that fragrance. 24 Let your theme be unique like a fragrance. Let your theme leave a retrievable memory with the jury, like the essence of a unique and desirable fragrance. Each time your theme is before the jury, it should evoke recognition and familiarity like fragrance. 25 The theme of the case has also been likened to the title of a song, a politician s slogan, or an advertising jingle. 26 Who does not remember Johnnie Cochran s theme in the trial of O.J. Simpson for the murders of Nicole Simpson and Ron Goldman: If the glove doesn t fit, you must acquit. 27 In choosing a theme of the case, keep in mind that people are sensory animals and we intake information through each of senses. 28 Educators have identified have five main styles of learning: auditory, visual, tactile, experiential and kinesthetic. 29 Most people are visual learners. 30 Tactile learning is considered a byproduct of visual communication. 31 Knowing the different approaches to learning allows the trial attorney to blend the individual components of communication and learning in his or her theme selection and presentation of the client s story. 32 By merging the modes of learning, one s interaction with the jurors becomes performance communication. 33 As the storyteller and conductor of the case, the trial attorney becomes the teacher of the client s case to the jurors in a face-to-face courtroom/classroom. 34 The jurors must relate to and understand the theme 25 Morrin, M., and Ratneshwar, S., Does It Make Sense to Use Scents to Brand Memory? JOURNAL OF MARKETING RESEARCH, Vol. XL, (February 2003), p Spence, G., WIN YOUR CASE, p Green, J. L., Developing and Using a Theme in Your Family Law Case, p Hibbitts, B. J., Coming to Our Senses: Communication and Legal Expression in Performance Cultures, 41 Emory Law Journal 4, p. 13 (1992). 29 Greene, L.J., STUDY MAX: Improving Study Skills in Grades 9-12, Corwin Press, 2004, p.p Auditory learners understand and remember spoken information. Visual learners understand and remember information that they have seen. Tactile learners understand and remember information that they can handle and touch. Experiential learners understand and remember best when they participate. Kinesthetic learners understand and remember best when data is linked to movement. 30 Hibbitts, B. J., Coming to Our Senses, p Hibbitts, B. J., Coming to Our Senses, p Aesop, The Hare and the Tortoise, Greek slave & fable author (620 BC BC). 23 (Lessons from Hare and Tortoise Story). 24 Aftel, M., ESSENCE & ALCHEMY: A BOOK OF PERFUME, Bloomsbury Publishing PLC (2001), p Spence, G., WIN YOUR CASE, p. 98.; see also, Perdue, J. M., Story Telling: How to Articulate Theories and Themes From Voir Dire to Closing, ADVANCED CIVIL TRIAL LAW COURSE, September 29 October 1, 1999 (Houston), p.p Hibbitts, B. J., Coming to Our Senses, p Hibbitts, B. J., Coming to Our Senses, p

8 selected by the trial attorney. If the theme is not memorable to the jurors, then the theme will not be effective. 35 A theme is the moral justification for the decisions that you [the trial attorney] want to be made in your client s case. The theme explains your client s case. The best theme explains your client s case and reverses the other party s theme. 36 Theme selection also involves certain ethical and legal limitations. One is not permitted to argue the Golden Rule. 37 The theme must be supported by the evidence. 38 A theme cannot contain personal opinions such as I believe or I think. 39 A theme is not an argument regarding a question of law. 40 The theme of the case should be linked to the jury issues. In Texas family law cases, jury determinations, as to certain issues, are binding on the Court. 41 The Texas family law jury verdicts that are binding on the Court are as follows: 1. A jury can determine the grounds for divorce; A jury can determine certain grounds for annulment 43 but cannot enforce a decree of annulment; A jury can determine whether a marriage is void; Hibbitts, B. J., Coming to Our Senses, p Green, J. L., Developing and Using a Theme in Your Family Law Case, p World Wide Tire Co. v. Brown, 644 S.W.2d 144 (Tex.App. Houston [15 th Dist.] 1982, writ ref d n.r.e.). 38 Tex. R. Civ. P Texas & N. O. R. Co. v. Sturgeon, 142 Tex. 222, 177 S.W.2d 264 (Tex ). 40 Tex. R. Civ. P. 269 (e) (f). 41 Baker v. Baker, 104 S.W. 2d 531, 532 (Tex. Civ. App. San Antonio 1936, no writ) (Issues of fact from which the character of property is determined must be submitted to a jury and the jury s determination of the same is binding on the court.). The trial judge, however, makes the just and right division of the parties property. See, Cockerham v. Cockerham, 527 S.W. 2d 162 (Tex. 1975). 42 TEX. FAM. CODE ; TEX. PCJ et seq.; Vautrain v. Vautrain, 646 S.W.2d 309 (Tex. App. Fort Worth 1983). 43 TEX. FAM. CODE ; TEX. PCJ 201.2, but not TEX. FAM. CODE (underage marriage). 44 TEX. FAM. CODE TEX. FAM. CODE ; TEX. PCJ A jury can determine the existence of an informal marriage; A jury can determine the value in dollars of marital property; A jury can determine the character of property; A jury can determine whether a prenuptial agreement is enforceable 49 but not whether it is unconscionable; A jury can determine whether a partition and exchange agreement is enforceable 51 but not whether it is unconscionable; A jury can determine whether an agreement concerning income or property derived from separate property is enforceable; A jury can determine whether an agreement to convert separate property to community property is enforceable; A jury can determine the amount of a reimbursement award; A jury can determine whether the distinct identity of a corporation should be disregarded; A jury can determine the percentage ownership of each party or the community as to an asset or property; A jury can determine whether actual or constructive fraud occurred and the amount of fair and reasonable compensation to the injured party; A jury can determine that amount of 46 TEX. FAM. CODE 2.401; TEX. PCJ et seq. 47 Archumbault v. Archambault, 763 S.W.2d 50, 51 (Tex.App. Beaumont 1988, no writ) (A jury determination as to value is no less binding on the Court than a jury determination as to the issues of fact from which the character or status of property is determined.). See TEX. PCJ Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex. 1975); TEX. PCJ TEX. PCJ et seq. 50 TEX. FAM. CODE 4.006(b). 51 TEX. PCJ et seq. 52 TEX. FAM. CODE 4.105(b). 53 TEX. PCJ et seq. 54 TEX. PCJ et seq. 55 TEX. PCJ et seq. 56 TEX. PCJ TEX. PCJ , , and TEX. PCJ et seq

9 reasonable and necessary attorney s fees incurred or to be incurred by a party; A jury can determine the appointment of a managing conservator, 60 of joint managing conservators, 61 or possessory conservators 62 as to each child 63 ; 17. A jury can determine who will determine the primary residence of a child; A jury can determine whether the conservator with the right to determine the child s residence is subject to a geographic restriction and the geographic area of the restriction; A jury can determine whether a grandparent should be granted possession of or access to a child; A jury can determine whether the parentchild relationship should be terminated; 67 and, 21. A jury can determine contempt. 68 Brainstorming with your client, your legal assistant, a trusted mentor, or other attorneys in your firm is time well spent when choosing the right theme for the case, as per the adage: Two heads are better than one. The collaborative meetings should focus on discovering the story of the case. 69 Knowing your case well can result in the revelation as to the right theme or themes. 70 More often than not, your intuition and instincts will lead you to the right theme. A divorce trial may require two or more themes: one for the property issues in the case and another for the issues related to the parent-child relationship. 71 If 59 TEX. PCJ TEX. FAM. CODE (c)(1)(a). 61 TEX. FAM. CODE (c)(1)(b). 62 TEX. FAM. CODE (c)(1)(c). 63 See TEX. PCJ 217.4B. 64 TEX. FAM. CODE (c)(1)(d). 65 TEX. FAM. CODE (c)(1)(e)-(f). 66 TEX. PCJ 216.4, TEX. PCJ et seq. 68 Ex parte Werblud, 536 S.W.2d 542, 547 (Tex. 1976)(one accused of contempt has a right to a jury is the possible sentence jail term exceeds six months ). 69 Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, pp ; Green, J. L., Developing and Using a Theme in Your Family Law Case, pp Green, J. L., Developing and Using a Theme in Your Family Law Case, p. 4. multiple themes are necessary to your case, the themes should be complementary and consistent with one another. 72 IV. THE NUTS AND BOLTS OF VOIR DIRE Voir Dire is a French phrase derived from the Latin, vērus, true and the Latin dīcere, to say, meaning to speak the truth.. 73 The right to a trial by jury includes the right to conduct a voir dire of the prospective jurors. 74 Those who specialize in jury trials state that voir dire is the most important aspect of the case. 75 The primary objective in voir dire is to flush out the panel members who are least likely to be favorable to your client and/or your client s case. 76 Included among the papers for this 2009 Advanced Family Law Seminar is a paper by Dr. Jan DeLipsey of Litigation Edge, Inc. who has written in detail about voir dire as a substantive topic. The remainder of the discussion of voir dire in this paper is to familiarize those who have not yet experienced a jury trial with the basic procedural nuts and bolts. For those attorneys who have not yet conducted or participated in a jury trial, the following is a short description of what to expect. On the day of your jury trial, expect to observe the Court as it prequalifies the larger venire panel to assure that all of the panel members are qualified to serve on the jury. 77 The 72 Id. 73 BLACK S LAW DICTIONARY 1569 (7th Edition 1999). The correct non-texan pronunciation is vwahr, where the r is virtually silent, followed by deer (not the whitetailed variety whose heads are mounted on countless walls.). 74 Babcock v. Northwest Memorial Hospital, 767 S.W. 2d 705, 709 (Tex. 1989). 75 Colson, J. and Sison, F., The In the Moment Approach to Voir Dire, THE WARRIOR, Summer 2002, p Colson, J. and Sison, F., The In the Moment Approach to Voir Dire, p TEX. CONST. art. 5, 14; TEX. GOV T. CODE To be a juror in Texas, one must be 18 years of age or older unless that person is otherwise disqualified. One is not qualified to be a juror in Texas unless he or she: 1. is a citizen of Texas and a resident of the county in which that person is to serve as a juror; 2. is qualified under the Constitution and laws to vote in said county; 3. is of sound mind and good moral character; 4. is able to read and write; 5. has not served as a juror for six days during the preceding six months in a district court, or during the 7-7 -

10 remaining venire members will then be those individuals on whom you will conduct your voir dire. Look closely at the first 24 remaining panel members and make your decision as to whether you will request a shuffle. The shuffle must take place before the voir dire examination begins 78 and before the district clerk returns any jury questionnaires. 79 There is no need to explain why you are requesting a shuffle. There is only one shuffle and drawing in each civil case. 80 Once the unqualified venire panel members are excused, the remaining prospective jurors will be the veniremen who you will have the opportunity to examine in voir dire. Those remaining panel members will be sworn in by the trial court before the voir dire examination begins. 81 The district clerk will provide you with a card for each venire member containing some cursory information about each member such as name, date of birth, marital status, number of children, employment, and religion. If no shuffle is requested, the panel members will be seated in numerical order, as each is assigned a number and that number is noted on their individual information cards. If, however, a shuffle has been requested, then the panel will be seated in the order of the shuffled cards. If a jury questionnaire was tendered to the prospective jurors, you must request a shuffle before you receive the completed questionnaire. 82 Ask the bailiff how the panel will be seated in the courtroom during the voir dire examination so that you can draw a quick seating chart to assist you in making notes during the voir dire. 83 preceding three months in the county court; 6. has not been convicted of a felony; and, 7. is not under indictment or other legal accusation of theft or of any felony. 78 TEX. R. CIV. P Carr v Smith, 22 S.W. 3d 128, (Tex. App. Fort Worth 2000, pet. denied). 80 TEX. R. CIV. P There can be as many as three shuffles in a criminal case because a sua sponte shuffle by the trial court does not foreclose the right of the State or of the defendant to request a shuffle. See, Wilkerson v. State, 681 S.W.2d 29, 30 (Tex. Crim. App. 1984); TEX. CODE. CRIM. PROC. art Apparently, the jury shuffle is unique to Texas jurisprudence. See, David v. Fisk Elec., 226 S.W.3d 508, 512 (Tex. 2008). 81 TEX. R. CIV. P Carr v Smith, 22 S.W. 3d 128, (Tex. App. Fort Worth 2000, pet. denied). 83 The panel members may be seated 10 across in four As a practice tip, aways make a record of the voir dire examination and always bring another seasoned associate, co-counsel, attorney friend, or legal assistant with you to voir dire. While you are conducting the voir dire examination, a second set of eyes and ears can be watch, listen and take notes about the reactions of the other venire members. A venire member who rolls his or her eyes throughout your voir dire is not a person you want to have on your panel. Generally, the trial court gives each trial attorney generous leeway with respect to the way each conducts their voir dire examinations. 84 Make no mistake, however: the trial court retains broad discretion as to the propriety of one s voir dire examination. 85 The voir dire may include questions and discussion of any matter that is reasonably related to the issues arising from the facts in your particular case. 86 Typically, the trial court will instruct each attorney as to the length of time that the court will permit each to conduct their respective voir dire examinations. Usually, the trial attorney will believe that the time allowance is too short. In order to preserve error as to the objectional time allowance, the trial attorney must object to the time period allowed and make a record showing the specific questions that he or she was not able to ask due to the time constraint. 87 After both sides have completed their respective voir dire examinations, the trial court will probably recess the panel in order for each respective side to determine which particular venire members to challenge for cause. 88 Each panel member who is challenged for cause is called before the bench, outside of the hearing of other panel members, The rows so that you can draw a quick seating chart and label the boxes with the panel member s name. By having the member s name on the seating chart, you may speak to the member by name during the voir dire examination, thereby personalizing your examination. 84 TEIA v Loesch, 538 S.W. 2d 435, 440 (Tex. Civ. App. - Waco 1976, writ ref d n.r.e.). 85 Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex. 2006). 86 Babcock, 767 S.W. 2d at S.D.G v State, 936 S.W. 2d 371,380 (Tex. App. Houston [14th Dist.] 1996, writ denied). 88 TEX. R. CIV. P A challenge for cause is usually because the venire man revealed what the challenging attorneys believes to be some bias or prejudice against the litigant, the attorney, the subject matter of the litigation or revealed that he or she cannot follow the law as to the issues

11 attorney who challenged the panel member is permitted to question the individual venireman after which the opposing counsel is given an opportunity to rehabilitate the individual. The trial court will usually ask questions of the venireman as well. The trial court then sustains or overrules the challenge for cause. This process is repeated until all challenged veniremen have either been stricken or permitted to remain on the panel. Following the resolution of the individual challenges by the trial court, the attorneys then exercise their peremptory strikes. 89 In district court, each side is entitled to six peremptory strikes. 90 The challenges are delivered to the clerk of the Court, who determines the first twelve names of the remaining panel members who have not been sucessfully challenged. 91 The twelve are seated, the remaining panel members are excused and the trial court administers the oath to the jury. 92 The twelve seated jurors will hear your case, will be the triers-of-fact in your case, and their decision will be binding on the issues set forth supra. V. THE OPENING STATEMENT Counsel, you may proceed. The jurors are in the box. Your client is seated next to you. The opposing side is ready to take notes while you speak. Hours upon hours of hard work have led to this moment. Everyone in the courtroom is watching you. The jurors are curious; voir dire has whetted their appetite; at last, they will hear the story behind all the earlier cryptic questioning. It is time to tell your client s story, and it had better be good. The Texas Rules of Civil Procedure offer little guidance about the opening statement, acknowledging only that before the presentation of evidence to the jury begins, each party upon whom rests the burden of proof on the whole case shall state to the jury briefly the nature of his claim or defense and what 89 TEX. R. CIV. P A preemptory challenge is usually used to remove a venire man from the panel if the attorney s challenge for cause was denied. A preemptory challenge, however, can be exercised without articulating any reason for the strike. Be prepared, however, to have a legitimate justification for every preemptory strike in the event of a Batson challenge. See, Batson v. Kentucky, 476 U.S. 79 (1986). 90 TEX. R. CIV. P TEX. R. CIV. P TEX. R. CIV. P said party expects to prove and the relief sought. 93 Counsel is entitled to argue the client s case to the jury. 94 One cannot, however, provide detailed descriptions of the evidence, display documents, or read in the opening statement. 95 One cannot run through the substance of the anticipated testimony of witnesses. 96 One cannot argue issues that are not supported by the evidence, state personal opinions, or make conclusory remarks about evidence that has yet to be admitted. 97 The Court has the authority to place time limitations on the opening statement. 98 The opening statement is not evidence. 99 These legal parameters, however, provide no insight into the process behind creating a captivating opening statement. Before saying Good morning, Ladies and Gentlemen of the jury, a well-prepared trial lawyer will have written and rehearsed the story of his or her case. A. BECOMING A STORYTELLER The opening statement is a story and you are the storyteller. 100 The better storyteller wields more influence in the courtroom than his counterpart because of his ability to use his ability to tell the story to move the jurors. A good storyteller can mesmerize the jury and exude a certain "star quality. Before you think I can t tell a good story be reminded that everyday each of us tells stories, even you. Telling stories is what people do when they share the events 93 Ramsay v. Tex. Trading Co., 254 S.W.3d 620, (Tex.App.-Texarkana 2008, pet. denied) (defendant has burden of proof and right to open and close). 94 Tex. Sand Co. v. Shield, 381 S.W. 2d 48, (Tex. 1964). 95 Guerrero v. Smith, 864 S.W.2d 797, 799 (Tex. App. Houston [14th Dist.] 1993, no writ) (citing Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. App. Austin 1975, writ ref d n.r.e.)). 96 Guerrero, 864 S.W.2d at Wells v. HCA Health Services of Texas, Inc., 806 S.W.2d 850, 854 (Tex.App.. Fort Worth, 1990). 98 Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 170 (Tex. App. Austin 1975, writ ref d n.r.e.). 99 Carrasco v. Texas Transportation Ins., 908 S.W.2d 575, 580 (Tex.App. Waco 1995, no writ). 100 Spence, G., WIN YOUR CASE, p

12 of their lives with one another. Friends around a table swap stories with one another. Family stories are passed down to new generations at get-togethers and holidays. The children in the family hear the stories of how and why an ancestor came to the United States, or about the summer Aunt Sue traveled with the circus. A good story imparts information in a memorable way and holds the attention of the listener. The movies we watch are stories. Our television shows are stories. The evening news tells us stories. What makes some stories entertaining, while others fall flat? A good storyteller engages the listener s interest from the beginning to end. A good story has five goals: 1. To illustrate a point; 2. To make the listener feel some way or another; 3. To make others experience certain sensations, feelings, or attitudes vicariously; 4. To transfer some piece of information in our head into the head of the listener; and 5. To summarize significant events. 101 As a child, our stories began with Once upon a time. 102 The story begins by introducing us to the characters and setting the scene. 103 A story has identifiable components: a central character (protagonist), a setting, a conflict or an antagonist, a climax and a resolution. The central character, or the protagonist, is your client. The setting is the time, the place, and the facts surrounding your client. The antagonist is the thing between the protagonist and his/her goal. The climax is the point at which the tension is at its peak. The resolution is how the story ends. When introducing the characters to the jury and setting the scene, avoid overburdening the jurors with too much detail which is not permitted. 104 Keep the story simple. 105 The testimony and the evidence will fill in the details. The more concise and understandable the story, the more likely the jurors will be able to follow you. Lawyers love to hear themselves talk and can be prone to digressing from the point. Avoid acting like a lawyer. 106 During the discovery process, as you learn more and more facts in your case, you should determine which facts are necessary to convey your story in the opening argument in its most potent and concentrated form. Take the jurors with you to the conclusion that you want them to reach as concisely as possible. While the old reporter s standard for a good story is one that tells who, what, when, where and why, remember that the news story is told in third-person. Third-person voice is far too detached and impersonal. A primary objective of your opening statement is to obtain empathy from the jury for your client. You may begin telling your story in third-person, but moving into the first person helps the jurors identify you with your client. 107 First-person is a more compelling way to tell a story. 108 Let the jury know who your client is. In all probability, your client is not perfect. As the third rule of Winston Churchill, supra at note 11, [e]ndure your handicaps if they can't be cured and turn them to your advantage. Address your client s shortcomings. Work those shortcomings into the story so that you control how those shortcomings are presented without dwelling on the negative. Imagine for a moment that you represent the husband who cheated on his wife. His act of adultery is not the only dimension to this person. He is a hard worker. He is a good provider. He is a good father. He is a good son to his parents. He is the friend who others turn to when they need help. He did not set out to fall in love with his co-worker. Let the jury know why things happened by offering the jury a reasonable explanation that is consistent with the facts. Using our sample client, tell the jury how he ached for his wife see in him what everyone else saw in him instead of her constant criticism that his efforts were never enough. Explain to the jury that while your client found someone to love and appreciate him, it has no bearing on what a great father he continues to be. What are the facts in the case and what are the issues in this case? Using the same client, tell the jury how every Saturday morning he let his wife sleep in and made pancakes for the kids or that every Sunday 101 Nations, H., Overcoming Jury Bias, p Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p Wells v. HCA Health Servs., 806 S.W.2d at Terry, E., Opening Statement and Direct Examination, p Terry, E., Hayes, K., Foltz, A., Opening Statement and Direct Examination, ADVANCED FAMILY LAW DRAFTING AND ADVOCACY ART AND FORM 2003 (Austin), p Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p

13 afternoon in the summer he made homemade ice cream for all of the neighbors. Tell the jury how your client got up in the middle of the night to comfort the children when they had bad dreams. Tie your facts to the issues and tell the jurors what those issues will be. Emphasize the facts that bring your story to life. 109 Let the jurors know that what they decide will be the future of the children, close to Dad and their friends and school. Choose your words carefully. The opening statement is not where you want to be dry and academic, but you do not want to behave like a carnival barker either. A jury trial is also not the time to test the word-of-the-week. Avoid using legalese; do not res ipsa loquitor and quid pro quo yourself out of the jury s good graces. The jurors expect you to be a professional but the jurors do not want to bond with one whom they perceive as pompous. Be confident when you speak with the jurors. Be yourself when you speak with the jurors. Speak clearly and use words that your panel members will know and understand. 110 Never read your opening statement to the jury. The opening statement is a story. A dry, monotone run-down of the facts will put the jury to sleep or cause their thought to drift away from the blah-blahblah background noise of your voice. 111 Speak to the jury. Engage them; address them and make eye contact. For those of you who shudder at the thought of speaking in public, your co-counsel should give the opening statement. 112 The opening statement is your best opportunity to create a positive, lasting impression about your client. Deliver the opening statement from your heart. There is a difference in delivery from the heart and rote memorization. Deliver your opening statement in such a way that your voice and mannerisms convey to the jurors that you know your case, you believe in 109 McGehee, J., Opening Statement: Demonstration, Dissection, Explanation, 22 nd ANNUAL ADVANCED PERSONAL INJURY LAW COURSE, (Dallas 2006), p Terry, E., Opening Statement and Direct Examination, p Cogdell, D., Opening and Closings that Work (or Are Over the Top), p Terry, E., Opening Statement and Direct Examination, p. 10. your client and you believe in this case. The opening statement is persuasive speaking. Practice your opening statement in front of the mirror or on a video so that you can see what the jurors see. 113 The best stories are the stories that another person can hear and visualize the action in their mind. A compelling story permits the listener to apply their sense memory to the story. 114 Use descriptive and colorful words. Your client wasn t just sad because the marriage failed: he was heartbroken. The child s grades weren t just down; he fell off of the honor roll. The key is to balance your choice of words between vivid words that evoke emotions and exaggeration that causes you to lose credibility with the jury panel. 115 A jury trial is a war of mental images. Think in terms of your mind s eye. Have you chosen the words that will allow the listener to see your story? 116 The opening statement should identify to the jury when their decisions will be made. Tell your story in such a way that the jurors know their role. Tell the jurors that they are a part of the way this story ends because their decision will become a part of the story of the lives of your client and the children. Twenty years from now, their decision will still have an impact on the lives of the children. Let the jurors know that when all of the evidence is presented, they will decide the issues. Let them know what the right 113 Jurors get their impressions from watching and listening. See Moses, R., Planning, Preparing, and Writing a Jury Argument, Center for Criminal Justice Advocacy, 2001, on.html. 114 Hibbitts, B. J., Coming to Our Senses: Communication and Legal Expression in Performance Cultures, 41 Emory Law Journal 4, p. 13 (1992). 115 Cogdell, D., Goodling, G., Opening and Closings that Work (or Are Over the Top), 29th ANNUAL ADVANCED CRIMINAL LAW COURSE (Dallas 2003), p Moses, R., Planning, Preparing, and Writing a Jury Argument

14 choices are. 117 Where do you want the jurors to go? Going back to the client/husband who had the affair, you want the jurors to identify with your client in a positive way. Let them know the issues that they will be determining. Give the jurors direction by giving them an explicit conclusion. 118 Communicate to your panel the relief that you want, without apology. 119 B. PRIMACY, RECENCY AND THE POWER OF THREE The primacy effect and the recency effect are terms often associated with persuasive speaking. Both terms are short-hand for a psychological effects first noted by Abraham Luchins in An opening statement is persuasive speaking, as the goal of a litigator is to persuade the jurors to make findings as to certain facts. Primacy is where the first belief formulated about a subject or a person is most deeply believed, and the hardest belief to alter. 121 In a nutshell, primacy is the first impression. Recency is the effect wherein it is easiest for one to remember the last thing heard, or the last impression. 122 To apply these principles to persuasive speaking, one should construct the opening argument so that the strongest facts of your client s case are told at the beginning of the statement. 123 Those factors about your client or your case that you 117 McGehee, J., Opening Statement: Demonstration, Dissection, Explanation, p Cogdell, D., Opening and Closings that Work (or Are Over the Top), p McGehee, J., Opening Statement: Demonstration, Dissection, Explanation, p Luchins, Abraham, THE ORDER OF PRESENTATION, Yale University Press Brodsky, S., PRINCIPLES AND PRACTICE OF TRIAL CONSULTATION, p (Guilford Press) Brodsky, S., PRINCIPLES AND PRACTICE, P Brodsky, S., PRINCIPLES AND PRACTICE p most want the panel to remember should be the last things you tell them in your opening statement. 124 To most successfully apply these principles in your opening statement, you must approach the drafting of your opening statement with deliberate awareness as to the arrangement of the facts within your story. 125 The Rule of Threes is speech writing and speaking tool. The Rule of Three describes the use of three related elements. Two varieties of the Rule of Three are the hendiatris and tricolon. A hendiatris is a combination of three successive words, for example: yesterday, today, and tomorrow. A tricola consists of three parallel elements, such as: I came, I saw, I conquered. 126 Toastmasters trains it members to build their speeches and presentations around ideas or concepts grouped in threes because the human brain responds to and remembers things in sets of three. 127 VI. ORDER OF PROOF AND WITNESSES A. ORDER OF PROOF Rule 265 of the Texas Rules of Civil Procedure sets forth the order of proof in a jury trial. 128 The party who carries the burden of proof for the entire case is the party who gives the initial opening statement. 129 Generally speaking, in a family 124 Brodsky, S., PRINCIPLES AND PRACTICE, P THE WINNING ARGUMENT, American Bar Association 2001, p Clark, Roy, WRITING TOOLS: 50 ESSENTIAL STRATEGIES FOR EVERY WRITER, (Little Brown & Co., 2006), p Gamache, J.A., 6 Techniques to Present Data, (Toastmasters, 2007). 128 Tex. R. Civ. P M Linen & Uniform Sup. V. W.P. Ballard

15 law case, the petitioner presents the initial opening statement, followed by the opening statement of the respondent. If there is an intervenor or other parties, they too will be permitted to make an opening statement. 130 After opening statements, the petitioner begins his or her "case in chief," meaning that the petitioner is introducing evidence through witnesses, documents, or other admissible medium. Ideally, one should have an organized trial notebook including a master checklist so that no evidence is omitted, including attorneys' fees. Once the petitioner has introduced all of his or her evidence, then the petitioner announces that he or she rests, subject to the right of rebuttal. 131 If the respondent believes that the petitioner did not present sufficient evidence to carry his or her burden of proof, then the respondent should move the court for an instructed verdict. 132 The respondent begins his or her "case in chief," and, at the conclusion, announces that he or she rests, subject to the respondent s right to rebuttal. 133 If the respondent has the burden of proof & Co., 793 S.W.2d 320, 324 (Tex.App. Houston [1 st Dist.] 1990, writ denied); Tex. R. Civ. P Fibreboard Corp. v. Pool, 813 S.W.2d 258, 691 (Tex.App. Texarkana 1991, writ denied); Tex. R. Civ. P. 265 (c). 131 Southern Pac. Transp. Co. v. Peralez, 546 S.W.2d 88, 98 (Tex.Civ.App. Corpus Christi 1976, writ ref d n.r.e.)(citing Markham v. Carothers, 47 Tex. 21 (Tex. 1877); see also, In re Bledsoe, 41 S.W.3d 807, 813 (Tex.App. Fort Worth 2001, orig. proceeding)(discussing the difference between evidence in one s casein-chief and rebuttal evidence). 132 Caples v. Goodwin, 601 S.W.2d 78, 79 (Tex. Civ. App. Houston [14 th Dist.] 1980, no writ)(failure to prove modification of sole managing conservatorship would be an improvement for the child); Tex. R. Civ. P Union Central Life Ins. Co., v. Boulware, 238 S.W.2d 722 (Tex.Civ.App. Beaumont as to any issue, the petitioner can move for an instructed verdict when the respondent rests if the petitioner believes that the respondent has failed to carry its burden. 134 Any intervenor or other party will then present evidence and announce that he or she rests at the conclusion of the introduction of their evidence. Once each of the parties has announced that they rest, the petitioner then begins his or her rebuttal, if any. "The parties shall be confined to rebutting testimony on each side." 135 As a general rule, one attorney per side is permitted to conduct the examination and crossexamination of the same witness. 136 In other words, if a party is represented by more than one attorney, only one attorney may conduct the direct of a witness--not both. Likewise, only one attorney may conduct the cross-examination of a witness, not both. This is not to be interpreted that only one attorney conducts all of the direct and cross-examination throughout the trial. Multiple attorneys can participate in trial; however, a witness is not subject to direct examination or crossexamination by multiple attorneys representing one side unless leave of court is granted to do so 137 and there is no showing of prejudice. 138 If any party has rested, or rested and closed, the court may permit a party to introduce additional evidence if that evidence "clearly appears to be necessary to the due administration of justice, 139 so long as "no evidence on a controversial matter shall be received after the verdict of the jury." At any point in the case, either side may ask the court to invoke "the Rule." 140 "The Rule" is rule 267 of the Texas Rules of Civil Procedure which excludes witnesses from the courtroom so as to prevent any witness from altering and tailoring his or her particular testimony based upon the sworn testimony of another witness. 141 The ideal time to 1951, no writ). 134 Caples, 601 S.W.2d at Tex. R. Civ. P. 265(f). 136 Tex. R. Civ. P. 265(g). 137 Shelton v. Taylor, 615 S.W.2d 912 (Tex.Civ.App. Eastland 1981, no writ); Tex. R. Civ. P. 265(g). 138 Tex. R. Civ. P Tex. R. Civ. P Tex. R. Civ. P Drilex Sys v. Flores, 1 S.W.3d 112,

16 invoke the Rule is at the beginning of the trial. 142 A spouse or a party's expert witness, however, is not subject to exclusion from the courtroom. 143 The court is mandated to instruct those witnesses who are under the rule that they are not to speak "with each other or with any other person about the case other than the attorneys in the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under the rule." 144 Violation of these instructions is punishable by contempt of court. 145 B. WITNESSES Meet each witness before trial begins and know what each witness is there to say and what important evidence is going to come in through that witness. 146 The jurors split-second, subconscious decision making ability as to the credibility and trustworthiness of you and of your client will also apply to each witness. Each witness should be appropriately groomed and know what their role is in your client s case. 147 Each witness should know what you will ask them. 148 Each witness should be admonished and reminded to respond only with honest answers, but that does not prevent you from teaching each witness how to formulate each answer so that their testimony is admissible. 149 A witness can be taught to avoid comfort words and fillers; for example, a witness can learn to say: Yes, rather than I think so, or No, rather than I guess not. The jurors want to hear a witness who is confident about what he or she knows. A witness can (Tex. 1999). 142 E.g., Medrano v. City of El Paso, 231 S.W.2d 514, (Tex.Civ.App. El Paso 1950, writ ref d n.r.e.). 143 Tex. R. Civ. P. 267(b). 144 Tex. R. Civ. P Tex. R. Civ. P Spence, G., WIN YOUR CASE, p , advising the trial lawyer to be upfront with the jury about what preparation entails so that it is in the correct perspective. 147 Spence, G., WIN YOUR CASE, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL: FROM INITIAL INTERVIEW TO CLOSING ARGUMENT, American Bar Association, Section of Family Law, 2004, p Spence, G., WIN YOUR CASE, p also be taught to be descriptive without compromising the truth. 150 For example, a witness can learn to respond with the best description as to what he or she saw: rather than I saw John hit Jane, it may be more accurate to say I saw John punch Jane s face with his closed fist. Use the testimony of your witnesses to continue to paint the visual story for the jury. 151 The rules for storytelling apply throughout the case. Witness preparation includes teaching your witness how to respond to questions so as to minimize miscommunication. Jurors are listening to testimony and to other audible evidence. The art of listening is to give meaning to what one hears by deciphering the meaning of the speaker. The jurors must understand what the speaker is communicating. The Meta Model of Language, now called Neuro-Linguistic Programming, identifies three processes by which people transform sensory input to the brain into their own world view. 152 One s actual experiences undergo three types of transformations: generalization, deletion, and distortion. 153 Generalization is a process of making a conclusion based upon only one or two experiences. Deletion is when one selects only certain aspects of an experience and omits others. Distortion is the modification of the experience. 154 A witness, including one s client, should learn to relay their experiences in such a way that they convey as complete a recounting of their experience as possible. Teach a witness to avoid making general statements such as: She never appreciated me. When preparing your witness to testify, assist them in recalling specific instances when her conduct or words expressed that she did not appreciate him. Tell the story not the conclusion Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p Bandler, R. and Grinder, J., THE STRUCTURE OF MAGIC: A BOOK ABOUT LANGUAGE AND THERAPY, Science and Behavior Books, Inc., Palo Alto 1975, p Bandler, R. and Grinder, J., THE STRUCTURE OF MAGIC, pp Wilson, C., The Art of Persuasive Communication, STATE BAR COLLEGE SUMMER SCHOOL, (Galveston 2008), p Wilson, C., Persuasive Communication, p

17 Teach the witness to convey his or her entire experience, without omissions, for example: We were having problems. This statement leaves the listener to wonder: What kind of problems health, financial, sexual, emotional, or automotive? When preparing your witness to testify, teach him or her to provide a complete answer. 156 Tell the whole story. 157 Teach the witness not to relate a cause to an unrelated effect, such as: Her spending made me crazy. When preparing your witness to testify, have your witness write down such a statement and discuss with that witness why a juror could negatively interpret such a statement as blaming one s own bad behavior on the behavior of another excuse-making. Teach the witness to learn to formulate accurate cause and effect, possibly in a series, such as: Q: What happened after Mary quit working? A: She continued to spend money on unnecessary luxury items after she stopped working, even though we were no longer a two income family. Q: How did you feel about her spending? A: I felt overwhelmed by the debt that we were incurring because we no longer had the same level of disposable income after she quit working. Q: What effect did the debt have on you? A: I felt helpless and was eventually diagnosed with depression. 158 Keep the witness s testimony succinct. 159 Each witness is a chance for the jurors to hear something new and to maintain their interest in your story. 160 There is no need to subpoena four teachers who can offer nothing more than the same, redundant testimony that Dad comes to all of the parent-teacher conferences. Cull through your client s list of witnesses and pick the best witness for each important area of testimony necessary to prove your case. Direct and cross-examination of a witness must take place from counsel table unless one asks leave of the Court to approach that witness. 161 Typically, one approaches the witness in order in introduce a document or object or to have the witness demonstrate some act or conduct. If you intend to do any of the above, that witness should have knowledge of the document or object, or know ahead of time that he or she will be required to make a demonstration before the jury. 162 Preparing your witness for direct examination 163 should be coupled with preparation for cross-examination. 164 On cross-examination, the witness should be taught to remain courteous, calm and considerate. 165 Preparing a witness for crossexamination 166 also includes teaching the witness not to make qualified answers such as I guess, or to provide an answer that exceeds the scope of the question. 167 One aspect of witness preparation is to walk the witness through the mechanics of the trial. Let the witness know that you will hand them a document; let the witness handle the document; let the witness know the predicate that you need to establish for admissibility. 168 There is no reason to be unprepared in a jury trial as the appearance of being unprepared will reflect poorly upon you and your client in the eyes of the jurors. 169 Direct the pace of your case by rehearsing with each witness. 170 Witness preparation 161 Tex. R. Civ. P. 269(h) that while one is in trial, one shall remain at his place in the bar. 162 Spence, G., WIN YOUR CASE, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, pp Wilson, C., Persuasive Communication, p Wilson, C., Persuasive Communication, p Hamilten, G., The NLP Process of Distortion, NLP-Process-of-Distortion&id= Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p ; Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, pp ; Spence, G., WIN YOUR CASE, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, pp Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p

18 helps you make the best use of the limited time that the Court is allowing you for your trial. VII. CLOSING ARGUMENTS A. LEGAL PARAMETERS After all sides have announced that they have rested and closed, the Court will read its charge to the jury. 171 Only the Court can instruct the jury as to the law. 172 The closing arguments follow the reading of the charge and this is your last chance to speak to the jurors about your client s case. 173 As Gerry Spence stated, Now it s time to close the deal. 174 Just as Rule 265 of the Texas Rules of Civil Procedure controls the technical aspects of the opening statement, Rule 269 controls the technical aspects of the closing statement. 175 The party who is first to make its opening statement is also the party who is first to make its closing statement. 176 This means that the party with the burden of proof is also entitled to the last rebuttal closing. 177 In those cases where there are several parties, such as in a case where there is an intervenor, the Court prescribes the order of argument as to the separate claims or defenses of the parties. 178 This means that an intervenor is assigned the order of its argument by the Court, according to the nature of the intervenor s claim. 179 In the closing argument, counsel for the petitioner and the respondent are each entitled to present all of their respective arguments, both of law and facts, to the jury. 180 Of course, each attorney is entitled to argue about the arguments of opposing counsel 181 as long as those arguments are not personal 171 Tex. R. Civ. P Tex. R. Civ. P. 269(d). 173 Tex. R. Civ. P Spence, G., WIN YOUR CASE, p Compare Tex. R. Civ. P. 265 with Tex. R. Civ. P Tex. R. Civ. P. 269(a). 177 Tex. R. Civ. P. 269(b). 178 Tex. R. Civ. P. 269(a). 179 Tex. R. Civ. P. 269(c). 180 Tex. R. Civ. P. 269(b). 181 Living Ctrs. Of Tex., Inc. v. Peñalver, 256 S.W.3d 678, (Tex. 2008). attacks or personal criticism of opposing counsel. 182 Any such unprofessional behavior, whether it is a side-bar remark, during the examination of a witness, in argument to the Court, or while arguing to the jury is to be rigidly repressed by the court. 183 Similarly, the Court is to protect an attorney from unnecessary interruptions, i.e., objections, made on frivolous and unimportant grounds. 184 Like the broad discretion given to counsel to argue the opening statement, the attorney also has a certain degree of latitude to indulge in flights of oratory. 185 The closing argument can include argument as to whether facts are reasonable and as to the probative effect of evidence. 186 Any inferences and deductions made from the facts must be reasonable. 187 A closing argument is permitted to include argument that a particular witness is biased and that certain evidence is unreasonable. 188 A closing argument cannot appeal to prejudice. 189 Unless a party is pro se, a party is not permitted to address the jurors during closing argument nor is a party permitted to express personal gratitude to the jury. 190 B. EFFECTIVE CLOSING ARGUMENTS The closing argument is the last chance to remind the jurors as to the merits and righteousness of your client s case. 191 It is also the last chance to rebut 182 Tex. R. Civ. P. 269(e). 183 Tex. R. Civ. P. 269(f). 184 Tex. R. Civ. P. 269 (f). 185 Southwestern Greyhound Lines Co. v. Dickson, 236 S.W. 2d 115,119 (Tex. 1951). 186 Texas Sand Co. v. Shield, 381 S.W.2d at Anderson v. Vision Exploration, 832 S.W.2d 657, 667 (Tex. App. El Paso 1992, writ denied). 188 Dyer v. Hardin, 323 S.W. 2d 119,127 (Tex. Civ. App Amarillo 1959, writ ref d n.r.e.). 189 Southwestern Greyhound Lines Co. v. Dickson, 236 S.W. 2d 115, 119 (Tex. 1951). 190 G.M.C. v. Iracheta, 161 S.W.3d 462 (Tex. 2005). 191 Spence, G., WIN YOUR CASE, p

19 the opposing party s case. 192 Recall the earlier discussion of the concepts of primacy and recency. 193 Primacy, the first thing one hears, is believed to be true. Also, recall that a person makes eleven key decisions about another person during the first encounter between the two, including competency, credibility and trustworthiness. 194 Primacy occurred during your opening argument. Recency, the effect of remembering the last thing one hears, occurs during your closing argument. The closing argument is not about persuading the jurors 195 ; it is to emphasize those parts of the trial that you want them to remember about your case. Like the opening statement, the Court has the right to set time limitations on the closing statement. 196 The closing argument is the time to drive home the evidence that support the decision you want the jurors to make. 197 Voir dire introduced your theme to the jurors. The opening statement expanded your themes into a full story. 198 The closing argument will bring the story and the theme home to the jurors. 199 The closing argument reminds the panel that you promised to show them certain evidence. 200 Remind the jurors of your promise. Tell them which witness testified as to that evidence, such as: I told you that I would show you X; Mr. Smith told you X. 201 Or tell the panel which documents contains the evidence, such as The deed establishes that the home was purchased before the parties married. Remind the jurors whether key evidence went unanswered, or, if answered, why the opposing party s answer is insufficient to discount the strength of your evidence. 202 Each key fact that you rely upon to prove your client s case must be identified to the jury in closing argument. 203 Tell the panel why those facts meet your burden of proof, or why the opposing party s facts do not meet the burden of proof. 204 The importance of pointing out the evidence you told the jurors you would show them is that it reminds them of the evidence and it establishes the dependability of your word. 205 Your word goes to your propensity for honesty, as perceived by the jury panel, and that quality vicariously applies to your client. 206 In organizing the closing argument, it is best to start with what decision you want your panel to make, and work backwards. 207 For example, in a custody case, if your client is seeking the exclusive right to determine the residence of the children, structure your closing argument so that you remind the jurors of the strongest and most compelling 192 Spence, G., WIN YOUR CASE, p See, section V. OPENING STATEMENTS,(B) Primacy, Recency and the Power of Three, supra. 194 Luchins, Abraham, THE ORDER OF PRESENTATION, Yale University Press Cf., Spence, G., WIN YOUR CASE, p. 224, calling the final argument the time to make the final pitch. 196 Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 153 (Tex.App. El Paso 2000, no pet.); Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex.App. Houston [1st Dist.] 1994, writ denied) (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). 197 Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p Hilliard, D., Opening Statements and Closing Arguments, Minnesota Institute of Legal Education, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p Mauet, T., TRIALS: STRATEGY, SKILLS, AND THE NEW POWERS OF PERSUASION, Wolters Kluwer Law & Business 2009, p Guichard, G., Closing Arguments: Strategy, Technique & Style, 13 THE WISCONSIN DEFENDER, Issue 3, Fall 2005, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p Lucas, R., McCoy, B., THE WINNING EDGE: EFFECTIVE COMMUNICATION AND PERSUASION TECHNIQUES FOR LAWYERS, Lawyers and Judges Publishing Co. (1999), p Guichard, G., Closing Arguments, p See Moses, R., Planning, Preparing, and Writing a Jury Argument, Center for Criminal Justice Advocacy, 2001, on.html

20 evidence supporting that determination. 208 Jurors want to base their decision on a logical, sound argument. 209 The argument should set forth why Facts A, B, and C can only lead to the determination that you are asking them to reach. The closing argument should discuss the facts and tell the jurors why those facts are important. 210 The closing argument is not a regurgitation of what each witness said. 211 The closing argument should also be accompanied with visual aids. 212 The closing argument is your opportunity to teach the jurors why the evidence that they have heard and seen in trial cannot logically lead to any conclusion other than the conclusion favoring your client. 213 The closing argument should identify the hero (your client) and the villain (the opposing party) in a traditional good guy-bad guy sense. 214 In that regard, you should become your client 215 in the closing argument while casting the other side as uncaring, greedy, callous, or vindictive. 216 The closing argument is also the opportunity to teach the jurors why the evidence of the opposing party cannot logically lead to any conclusion other than the conclusion favoring your client. 217 It is permissible to remind the jurors of the demeanor of witnesses and to argue the bias of witnesses. 218 A closing argument should tell the jurors exactly how they should answer each of the jury questions, and why. 219 Jurors want to feel good about the decision that they make. 220 The closing argument should connect each piece of evidence to the next piece of evidence. The jury needs to understand how the law in the jury charge applies to the facts in your case. 221 The closing argument should provide the jurors with a clear picture of the evidence and the law so that they can see the only logical decision to be reached. 222 The closing argument should explain why the evidence and the law create a roadmap to the one logical conclusion as well as an explanation as to why the law and the evidence will not lead to any other decision. 223 The closing argument is the plea for justice for your client by those with the ability to provide that justice. 224 VIII. CONCLUSION A jury trial is the ultimate test of one s mettle as an attorney. Preparation for a jury trial demands knowledge of the rules of civil procedure and trial deadlines. The trial attorney must know the legal issues, the burdens of proof, and the evidence necessary to prove the issues. The trial attorney must know the rules of evidence, the predicates needed to offer evidence, how to obtain evidence in admissible form, and how to admit that evidence. The trial 208 Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p Spence, G., WIN YOUR CASE, p Mauet, T., TRIALS, p Spence, G., WIN YOUR CASE, p Mauet, T., TRIALS, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p Gold-Bikin, L., Kolodny, S., THE DIVORCE TRIAL MANUAL, p. 48; Spence, G., WIN YOUR CASE, p Spence, G., WIN YOUR CASE, p. 233, explaining why the jurors must make an emotional connection with your client. 216 Spence, G., WIN YOUR CASE, p Listrom, L., Crafting a Closing Argument, LITIGATION, Volume 33, No. 3, Spring p Spence, G., WIN YOUR CASE, p Wilson, M., The Do s and Don ts of Closing Arguments, Media/The-Dos-and-Donts-of-Closing- Arguments.asp; Spence, G., WIN YOUR CASE, p Waites, R., COURTROOM PSYCHOLOGY AND TRIAL ADVOCACY, American Lawyer Media (2003), p Wilson, M., The Do s and Don ts of Closing Arguments, Media/The-Dos-and-Donts-of-Closing- Arguments.asp 222 Mauet, T., TRIALS, p Listrom, L., Crafting a Closing Argument, p Spence, G., WIN YOUR CASE, p

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