THE TRIAL OF A FAMILY LAW JURY CASE

1. THE TRIAL OF A FAMILY LAW JURY CASE JOHN F. NICHOLS, SR. PATRICK W. UPTON 713-816-5090 (JN Cell) john@nicholslaw.com STATE BAR OF TEXAS 2014 Advanced Family Law Course San Antonio, Texas August 3-7, 2014

2. THE ART OF PERSUASION

3. Things That Bug Juries • Time wasters • Legalese without explanation • Not being able to ask questions • Attorney bickering • Cheaters

4. Things Juries Most Enjoy • Learning about the process • The interaction – people watching • Seeing people get a fair trial

5. Golden Rules of the Courtroom • Be prepared • Be brief • Be professional • Be seated

6. THE PLAYERS

7. Trial Lawyer Types • Paper Shuffler • Journeyman – works off of rote • Natural – natural talent, little preparation • Stone Cold Trapper – listens, learns, studies his/her craft

8. Jack Rabbit Turtle Positive Negative Jolly Golly Magic Man Razzle Dazzle Methodical High Roller Joe College Styles and Mannerisms

9. Make – Up of Trial Lawyers • Big Ticket • Small Ticket • Older • Affected • Pressure

10. Polished Crafty Entrepreneurial Good Service Ambitious And above all: his/her handshake means something Fascination With People Self Starter Solitary Helper Knows No Strangers Characteristics of Great Trial Lawyers

11. Do’s and Don’ts of Trial Lawyers • Sell yourself before you sell the jury • Try the case for the right reasons • Cut out the small talk, get down to business • Forget about jury stereotypes • If you get knocked down, get back up • Show your anger, when appropriate • Always be learning

12. Do’s and Don’ts of Trial Lawyers • You are in charge of your case • Get, be, or feel, comfortable • If you get hot, stay hot • Be positive • You can be replaced • Give it everything you have • Leave your work at the office or courtroom

13. Jurors • Ethnic Posture • Professions, Trades or Businesses

14. Judge Types • Jurist • Principled • Intellectual • Independent • Lost • Interrupter

15. SELLING AND PERSUADING

16. Selling Your Case • You are a salesperson • Every trial is selling, ABC (always be closing) • Every sale has 3 components • Sellers (you) • Of products (client) • To buyers (judge/jury)

17. Sales Presentations • Pre-demonstration pitch – opening statement • Presentation of the product (show and tell) – present evidence • Call for action – closing argument

18. Presentation to Jury • Decide on a story model • Juries are story builders • Make opening statements a road map • Witness credibility = witness believability • Lawyer credibility = case believability • Anchor to your theme or story model

19. Voir Dire • Jurors want to talk, let them – gather information • Look for people who are materially (as opposed to equivocally) biased against your case • Look for “unshakeable convictions” • Look for “fixed opinions”

20. Body Language • Everyone communicates with nonverbal signals • Jurors perceive through sight (85%), hearing (8%) and other senses (7%) • Congruence = believability

21. Juror Buy Signals: Non-Verbal Cues • Trial lawyer / witnesses – presenter • Juror – sender of signal “my state of mind is favorable to the presenter”

22. Common “Buy Signals” • Open palms • Relaxed body posture • Happy face • Synchronized body movements • Expression of positive feelings

23. Common “Lie Signals” • Changes in mood, stance, posture and facial expression • Finger over mouth – determine whether witness is lying, or thinking about his/her answer to the question • Overstated feelings – concealment of a more accurate presentation of mood • Freudian slips and editing

24. Common “Lie Signals” – con't • Decrease in gestures • Decrease in words used • Incongruent body signals • Decrease in eye contact • Autonomic signals – sweating, breathing, mouth dry

25. Believability Scale • Autonomic signals (unconscious) • Legs and feet • Trunk • Hand • Face • Verbalizations

26. PRE-TRIAL CONFERENCE AND MOTIONS-IN-LIMINE

27. PRE-TRIAL CONFERENCE • Governed by T.R.C.P. 166 • Discretionary with the court. • Purpose is to consider: • Pleas, motions, exceptions; • Amendment of pleadings; • Set discovery deadlines; • Determine parties contentions; • Simplification of contested issues;

28. PRE-TRIAL CONFERENCE (con't) • Stipulation of fact; • Identify matters for court rulings; • Exchange witness lists and I.D. the subject matter of their testimony; • I.D. expert witnesses; • Agree on applicable law and law questions; • Exchange jury charge, or fact findings and law conclusions in non-jury cases; • Exchange exhibits and stipulate authenticity and admissibility;

29. PRE-TRIAL CONFERENCE (con't) • Written objections to exhibits; • Determine need for master/auditor; • Encourage settlement discussions; • Any other action aiding in disposition of the matter; • Determine compliance with local rules; • Rule on motions to strike for failure to state address, phone number, and subject matter of testimony; • Determine right to open and close; • Determine size of jury panel;

30. PRE-TRIAL CONFERENCE (con't) • Determine number of preemptory challenges; • Determine party alignment; • Determine procedure for challenges for cause; • Determine Daubert/Robinson challenges; • Determine Motions-In-Limine; • Taking judicial notice of facts or laws; and • Striking jury requests. • Discuss Internet and Social Media use by jury.

31. PRE-TRIAL CONFERENCE (con't) Motions-In-Limine (Jury) • Ruling on motion does not, in and of itself, preserve error; • Purpose is to draw attention to possible inadmissible evidence; • Effect is to require bench conference before going into challenged area or evidence; • Effect is also to alert the court to potential problem areas; • Submit law, if possible with motion;

32. PRE-TRIAL CONFERENCE (con't) Motions-In-Limine (Jury) • Submit order with motion; • Subject matter of motion is limitless; • Denial of challenge to motion requires offer of proof to preserve error; and • Sanctions for violation include, default judgment, striking pleadings, instruction to jury.

33. VOIR DIRE EXAMINATION

34. Voir Dire Purposes • Two Purposes • Test qualifications for challenges for cause – material bias • Gather information for peremptory challenges

35. Trial Court Discretion • Discretionary – as to how voir dire is conducted • Right/Fair opportunity to question panel • Bill of Exceptions/Demonstrate Abuse of Discretion • Offer list of questions to be asked as part of Bill of Exceptions

36. Record • No record = no complaint

37. Challenge to Array (TRCP 220) • Remarks at empanelling • Central jury room

38. Excusing Jurors • Only Judge can excuse jurors • Not court personnel

39. Jury Shuffle (TRCP 233) • Demand before Voir Dire • Request must be granted • Only one shuffle per case • Harmless error rule applies

40. Statutory Disqualifications • Not a resident of county • Not qualified to vote or no Texas drivers license • Criminal history • Blanks in forms – must question • Literacy – must question

41. Statutory Disqualifications -- Cause • Stock holder • Materially biased or prejudiced in favor of or against a party or the subject matter

42. Determining Bias or Prejudice • Cortez and Hafi cases • Matter must be pursued • Court must have grounds to believe material bias

43. Material Bias v. Equivocal Bias • Material bias disqualifies • Recantation at prodding of counsel is insufficient • Equivocal bias does not disqualify • “Leaning” bias does not disqualify • An “unshakeable conviction” disqualifies • Venire member can be rehabilitated after expressing apparent or equivocal bias • Challenges for cause on material bias do not turn on magic words • Rehabilitative statements that a person can be “fair and impartial” may still disqualify

44. Bias or Prejudice Disqualifications for Cause • Having a “fixed opinion” is sufficient to justify disqualification • Judge has no discretion once material bias or prejudice is established • Non-belief in cause of action is sufficient to disqualify • “Concealed bias” will allow party a new trial upon proof • Concealed bias is giving a deliberate incorrect answer to a material question, which caused harm

45. Preserving Error on Challenge for Cause • Demonstrate a juror should be removed for material bias • Move to strike the juror • Get a ruling from the court on a challenge for cause • Object to the court’s denial of a challenge for cause • Inform the court that you will exhaust your preemptory challenges because of the court’s denial of your challenge for cause • After exercising a preemptory challenge on a juror previously challenged for cause, point out the specific objectionable juror that you would have struck and who now remains on the jury list

46. Proper and Improper Questions and Comments • It is improper to require the jury to commit to certain conclusions, verdicts or views • Cannot advise jury of the effect of their answers • Cannot inquire whether a juror has been convicted of an offense which disqualifies the juror or whether he stands charged with theft or any felony

47. OPENING STATEMENT

48. Opening Statement • Governed by T.R.C.P. 265 (a), which provides that the purpose of an opening statement is to tell the finder-of-fact, judge or jury: • Claims made; • What you expect to prove; and • The relief sought. • Use concept of “Reframing.” • Feel – identify belief system • Felt – link to belief system • Found – build a new belief system

49. Opening Statement (con't) • Talk about how client’s pride or dignity has been affected or taken. • Correcting injustice – justice is an ideal but injustice is something jury can correct. • Point out injustice. • Show the rightness of your side. • Tell the jury they will have the privilege or opportunity to correct the injustice. • Use storytelling. • Use .25¢ words.

50. Opening Statement (con't) • Use words that describe your case like: “crushed,” “shamed,” and “mangled.” • Use expressions that set the theme like: arrogance of wealth” and “prisoner in his own body.” • Use adages to convey a simple message like: “it’s not what you say, it’s what you do;” “it’s my way or the highway;” “there is no such thing as a non-working mother.” • Don’t be afraid to discuss money because it is a statutory method for correcting injustice.