Jury Selection and Voir Dire Examination in Civil District Courts of Bexar County
In 2002 the District Courts Committee, at the recommendation of Judge Andy Mireles, a member of the committee, formed a subcommittee to study and report on jury selection and voir dire examination in the civil district courts. The volunteer members are Jeff Akins, who is the chairman of the District Courts Committee, Vincent Notzon, Robin Teague (chairman of the subcommittee), Dan Vana and Ben Wallis. Cathrin Martinez, a lawyer with O'Connell & Benjamin, attended some of the interviews. The subcommittee interviewed each judge, including retiring judge Carol Haberman and new associate justice of the court of appeals Phylis Speedlin, and new judges Barbara Nellermoe and Rebecca Simmons. The interviews were conducted at the courthouse. The subcommittee began with a list of questions or areas of study, but expanded the list during the course of the study because of suggestions by the judges. Judge David Peeples, also a member of the committee, made recommendations about the procedures for the study. All of the judges were cooperative, informative, and helpful. The subcommittee summarized the findings and submitted the summary in the form of this article to the judges for review, correction and change. This article is in the order in which we interviewed the judges. Before publication, the judges had an opportunity to review and correct this article. The committee intends that the article will be published on the website of the bar association. The committee recommends review of the two articles published on this subject at the Anatomy of a Civil Trial, held May 16, 2003, by Judge Peeples and by Judge John Gabriel and Paul Fleck.
The committee limited the scope of the study to the civil district courts. The limitation is the result of the nature of the practices of the members of the committee. Although membership is open and based upon application and appointment by the president of the bar association, none of the members during 2002 and 2003 specialize in criminal law. So the members of the association who specialize in criminal law may want to conduct a study of the criminal district courts. Similarly, the members of the county courts at law and federal courts committees may also want to study and report upon the practices and procedures in those courts.
Those who assume the practice and procedure in the civil district courts is uniform may be surprised by the findings. So one of the rules of trial lawyering is Know Thy Judge. Ask questions if you are in doubt. Use your fellow trial lawyers to research the practice of trial judges. Most of the differences are, however, slight and idiosyncratic. We do not perceive that any have affected or would affect the outcome of the trial.
Importance of Voir Dire
To Judge Mireles, “Voir dire is everything.” Judge Mike Peden, who has tried or
presided over almost 500 jury trials, thinks that jury selection proceedings ìset the tone for the trial,î either positively or negatively. Our newest judge, Rebecca Simmons, who was a trial lawyer before her recent appointment, added that jury selection is so important that parties may settle or want to settle cases as a result of statements made and answers given during jury selection.
Type and Content of Questions
One of the issues we discussed with several of the judges is the proper scope of questions during jury selection. For the most recent opinion on the subject, see Vasquez v. Hyundai Motor Co., No. 04-01-00554-CV (Tex. App. - San Antonio August 21, 2002), in which the court of appeals affirmed the judgment by then Judge, now Justice, Phylis Speedlin. The appellate court recognized that questions seeking to commit a juror during voir dire, as to the weight the juror would give any certain evidence, are prohibited. The issue was whether the questions asked and proposed in the trial court sought to improperly commit the jurors. The trial court has discretion in conducting voir dire, and the appellate court held that the trial judge did not abuse her discretion in refusing to permit questions inquiring into potential jurorís attitudes toward those who do not wear seatbelts, which the court described as “case specific questions.” Judge Karen Pozza thinks the line between proper and improper questions is a “fine one,” and crossing that line leads to a “slippery slope.” The Vasquez v. Hyundai Motor Co. trial shows how one may slide on that slippery slope: two entire panels were excused before a jury was selected from the third panel. Some disagree with the approach taken by the attorneys for the plaintiffs in that trial, which led to the loss of two panels. Some trial lawyers and judges think some attorneys focus too much on challenging potential jurors for cause and not enough on selecting a jury to try the suit. Jeff Akins, for one, based on his training, believes the attorneys went about jury selection the wrong way, and should have asked questions which would have led those who were viewed as biased or prejudiced to agree they could set aside the attitudes and be open-minded.
Criminal law practitioners will also be interested in reviewing the opinions in Barajas v. State and Standefer v. State, in which the Court of Criminal Appeals also applied the rule prohibiting questions during voir dire which attempt to commit a juror to a particular verdict on the specific facts of the case. Judge Frank Montalvo “follows the criminal procedure model.” Justice Speedlin did too, as a trial judge. So even civil trial lawyers should review these opinions. Judge Montalvo added that case specific questions create one of the most difficult situations for trial judges because the limitations are not well defined and difficult to apply. He suggested conferring with the judge before asking questions that specifically relate to the facts of the case. He does, however, believe that concepts and hypotheticals are appropriate subjects. For example, “What effect do you think a collision would have on a passenger if the damage to the vehicle was minor?” “Could serious injuries to a passenger result even if the damage to the vehicle was minor?” In light of the child seatbelt suit that she presided over, Justice Speedlin gave some advice about appropriate and inappropriate questions, using that case as an example. She thinks these are not proper: “If it were shown that the child was not wearing a seatbelt, could you be fair and impartial and find that her parents were not negligent?” “Could you set aside the fact that the child was not wearing a seatbelt?” “Could you set aside your sympathy for the child and find the negligence of the parents caused the injury?” She thinks these are proper: “Do you always wear a seatbelt?” “Do you always use a seatbelt for your child?” “Do you feel so strongly about use of seatbelts that you could not be fair to both sides?” Justice Speedlin indicated that would be an appropriate question only outside the presence of the other jurors.
Judge David Berchelmann will try to save the panel if he feels an attorney is attempting to obtain improper commitments. He will instruct the panel that there are no right or wrong answers and that they should be open-minded. Judge Peeples may instruct the attorneys to limit questions and statements about the facts because he does not want the lawyers to force jurors to make up their minds before the evidence is admitted. But he understands that a party may want to “take the sting out” and he believes that inquiries into attitudes are proper. Suppose a defense attorney in a criminal case told the jury that the defendant was caught at the front door, with blood on his hands, holding jewelry, and told the person who caught him that he "had to kill her," then asked the judge to excuse anyone who was leaning? The defense is not alone in seeking commitments. In the recent trial involving Houston dentist, Clara Harris, the prosecutor stated:
Intent can be formed spontaneously in an instant. Are you going to make me prove that she planned to kill him?
You may tell the jury the bad facts, but do not expect the judge to sustain challenges for cause under those circumstances. Judge Mireles, who has lost a jury panel, will call the lawyers to the bench if they are asking case specific questions and he thinks the jury panel is getting the wrong message. Judge Simmons is now inclined to wait for an objection. Judge Patrick Boone may have summed up the feelings of most of the judges: “I donít want the jury to know the whole case by the end of jury selection.”
The other questions and areas discussed include the judges’ feelings about attorney-conducted and judge-conducted voir dire, the procedure for jury selection which the judges prefer, the thoughts the judges have about written jury questionnaires, the judgesí view of time limitations established at the outset of jury selection, examples of bad habits, on the one hand, and interesting, unusual, creative, clever and effective techniques, on the other hand, the policy and procedure followed regarding the use of visual aids during jury selection, and the policy and procedure for jurors asking questions and jurors taking notes.
Attorney-Conducted and Judge-Conducted Voir Dire
Judge Peeples “is not in favor of judge-conducted voir dire and has not heard of any judge who is.” Our interviews confirmed what he told us. For example, Judge Martha Tanner believes “this is your case, your trial, your client,” and she therefore has limited involvement except where attorneys seek commitments from jurors. Judge Peden “wants the jury to be relaxed, and to laugh at his jokes,” but will “very rarely butt in” if no one objects. He realizes he takes some risks because on some occasions he has had to add potential jurors to the panel so that a jury could be selected. Judge Pozza instructs the jury that ìyou have not heard any evidence and what the lawyers tell you is not evidence and you may hear evidence which is not mentioned now.î Although Judge Barbara Nellermoe was a law clerk for federal Judges Shannon, Sessions and Prado and prepared questions for them to ask potential jurors, she ìexpects to follow the normal model in Bexar County.î But she will limit the “opening statement” part of voir dire and will not permit argument. Expect her to give you ground rules at the pre-trial hearing. Judge Simmons believes that the presiding judge system limits the knowledge judges have about the cases on trial and thus limits the involvement of the judge in voir dire: “The attorneys know much more about the case.” But she will step in if she feels the attorneys are poisoning or trying to poison the panel or are trying the case during voir dire.
Preferred Procedure for Jury Selection and Challenges for Cause
Some judges prefer that the plaintiff make general comments and ask questions of the entire panel, and that the defendant then do the same. That is the preference of Judge Peeples. Then he normally instructs the attorneys to ask more specific questions of the jurors on the first row, then the second row, and so on. The attorneys may go back and forth among the jurors on the row under examination. Challenges for cause should be made after the completion of a row of jurors. In a recent trial, however, Judge Peeples permitted the attorneys to examine jurors one by one after the general questioning by both sides. That was a medical malpractice trial in which some sensitive matters were involved and he thought questioning one at a time was appropriate. He is open to suggestions by the attorneys.
Judges Mireles, Tanner, John Specia, Montalvo, John Gabriel and Nellermoe prefer the procedure in which the plaintiff asks general questions, then the defendant asks general questions, then the attorneys ask questions of the jurors one at a time. Judge Simmons thinks a record is easier to make during this type of procedure because the attorneys do not have to repeatedly identify the potential juror for the record. Judge Mireles would consider other procedures if the attorneys agreed. He requests that the attorneys approach the bench at any time for a challenge for cause. Under his procedure, he considers a juror to be qualified if the trial lawyers pass the juror without making a challenge for cause. Judge Specia will bring potential jurors to the bench at your request, for a challenge for cause.
Judge Berchelmann is also open to suggestions, and is open to the procedure in which the plaintiff completes voir dire before the defendant begins, so that both sides combine general and specific or individual questions and statements. Judge Simmons used that procedure in the first trial over which she presided. She is also open to suggestions. In her court you may make challenges for cause when you are ready, but she suggests waiting to make challenges at one time if there is an indication that several challenges will be made.
Although at one time he let lawyers combine general and specific voir dire, Judge Montalvo no longer does so because he thinks the plaintiff may ìwork the jury overî so that the jury is “too tired to pay attention to the defendant.” So he now prefers the procedure preferred also by Judges Mireles, Tanner, Specia and Gabriel, in which each side conducts general voir dire, and then each side conducts individual or specific voir dire, one juror at a time.
Judge Peden is “flexible” but prefers that same approach, general-general, then specific-specific. One difference is that he may release or excuse the jurors, row-by-row, when the attorneys are finished with specific or individual questions as to the jurors on that row. The released jurors may go to an early lunch and return when the time comes for exercising peremptory challenges. Another difference is that he “frequently will bring individual jurors up to the bench” for continuation of voir dire.
A procedure which is similar to the procedure used by Judges Peeples and Peden is preferred by Judge Boone. Each side conducts general voir dire, and then examines the jurors individually, one row at a time. Follow-up questions should not be asked during general voir dire, but should be saved for specific or individual voir dire. Judge Boone added that he is open to the combination of the general and specific voir dire, if it would be quicker than the procedure he prefers. Judges Boone, Janet Littlejohn and Nellermoe receive challenges for cause at the breaks during voir dire. Inform them of the identity of the potential jurors as to which you want to make a challenge. They will bring them up to the bench, one at a time, out of the presence of the other potential jurors. Judge Boone reminds trial lawyers that any challenge for cause should be on the record. Do not be shy. “Being on the record is not an inconvenience to a judge.” He will also, at some point during voir dire, talk to the jury about bias, and give examples. One of the examples he uses is: “This is a divorce case. If you just got divorced, you may be biased against one of the parties in this case. If I excuse you from service in this trial, you will still have an opportunity to serve on another jury today.” He adds the last statement so that jurors who express bias do not think they can avoid jury service by doing so.
Normally, Judge Pozza uses the same procedure that Judges Mireles, Tanner, Nellermoe and Montalvo use, general-general, individual-individual, one juror at a time. She will, however, consider individual questioning a row at a time, and is open to suggestions as to the procedure to be used. She allows only limited follow-up during general voir dire, but does allow an attorney to ask, for example, “Do you, juror number 6, agree with juror number 1?” Judge Pozza requests that any challenges for cause be made after the lawyers finish specific questions of each juror.
Judge Littlejohn has used two procedures, but normally uses the general-general, individual-individual, one juror at a time procedure. Sometimes she excuses all but the row under examination where significant delay has occurred. Sometimes she will give each side a block of time, such as an hour or an hour-and-a-half, during which each side will combine general and individual or specific voir dire. If she combines general and individual, the attorney for the plaintiff may not re-open voir dire after the defendant has begun.
“On rare occasions,” Judge Specia conducts “individual voir dire in a separate room.” For example, in an asbestosis trial, he may conduct individual or specific voir dire in a separate room to avoid poisoning the rest of the panel and to make more sensitive questions easier to ask. During general voir dire, he will permit follow-up questions to the entire panel, but not to individual jurors. He has never combined general with specific or individual voir dire, but is open to that procedure if someone convinces him it is a good idea.
The normal procedure for Judge Carol Haberman is to allow the attorneys to conduct general voir dire, which usually takes about 15 minutes for each side, and then to allow them to conduct individual or specific voir dire, four jurors at a time. The reason for four is that four jurors are on each page of the juror information forms. The attorneys may direct questions to all four potential jurors, or skip around, from one to another. Judge Haberman does not prefer combining general and specific or individual voir dire. That procedure does “not give a good picture of the case to the jury,” since the jury begins to paint a picture of the case “without hearing from the defense.” Judge Gabriel realizes that some attorneys prefer to “mix general with individual questions.”
He cautions, however, that trial lawyers should “not take the judge by surprise.” Obtain approval before combining general with individual or specific voir dire.
Judge Peeples “does not like them” because they are too time consuming, but has used them a couple of times to avoid an unnecessary invasion of privacy of potential jurors. Judge Berchelmann would consider using them in a lengthy or factually complex trial. He does not, however, believe jury questionnaires shorten trials and does not believe jurors like them. Judge Mireles did use jury questionnaires as a trial lawyer, but thinks they are a waste of time as a general rule.
Unless both sides agreed, Judge Tanner would not use one. In her view, a questionnaire would irritate potential jurors if the same question was asked more than once, that is, orally and in writing. Judge Montalvo thinks written jury questionnaires ìare great in complex cases.î ìThey are fantastic, really.î He has used them and will use them again. Judge Peden has used written jury questionnaires twice and thinks they were helpful. He would not use them routinely, but only in a complex trial. Judge Boone has never used one, is ìnot convinced they are necessary,î has rejected requests for them so far, but is still open-minded about them. Judge Pozza has used them twice and would use them again in complex cases or cases involving sensitive issues.
Justice Speedlin advises us that lawyers involved in pattern litigation, such as the Firestone Tire/Ford Explorer cases, should review Administrative Rule 11 for the region, which establishes some guidelines for the use of jury questionnaires. She also listed some of the dos and doníts for questionnaires: Do not include questions relating to bumper stickers, or favorite television shows or magazines. Do include in the appropriate case: Are you an alcoholic? Have you been to a drug treatment facility? In other words, she would limit questionnaires to personal, potentially embarrassing questions. Judge Littlejohn has used questionnaires in complex trials, or in trials involving sensitive issues, such as a medical malpractice case resulting from a mastectomy because of breast cancer. She permits the attorneys to follow up on the written answers by the potential jurors.
Judge Specia “loves jury questionnaires.” “I’m a big fan of them.” He is so much in favor of them that he would like a standard jury questionnaire and believes the jury information form now used is inadequate. (Sounds like another project.) He would use them in cases involving sensitive issues, such as a pharmaceutical product liability suit in which one of the attorneys proposes to ask jurors: “What drugs do you take?” The “only drawback to using jury questionnaires is that jury selection lasts two days. I bring the panel in, give them the questionnaire, allow them time to answer it, and then allow the attorneys the rest of the day to review the answers.”
“At first,” Judge Haberman “was a little against” questionnaires, “But as time went on, I became more open to their use. I have used them in cases involving suicide, sex abuse” and other matters as to which privacy concerns are important. Answers to questionnaires “tell you what you would not hear” from potential jurors in oral voir dire examinations. She added that questionnaires lengthen the trial, but “they are needed in a few kinds of cases.” Judge Gabriel has used questionnaires in medical malpractice cases. He advises trial lawyers to “not take the judge by surprise on Monday morning.” Give the judge and the other side advance notice of the request for submission of jury questionnaires. In his experience, the questionnaires ìmade the trial quicker and were extremely helpful.î Judge Nellermoe is open-minded to jury questionnaires, but trial lawyers will need to convince her of the benefits in using them in a particular case. She expects that they may be effective in complex trials. Judge Simmons used them several times in her trial practice, always by agreement with opposing counsel, and found them to be useful in big cases, involving sensitive issues.
A time limit is established by Judge Peeples on the general questions, which is usually no more than thirty minutes per side. The time limit for each row of jurors is twelve minutes for the plaintiff and ten minutes for the defendant. Judge Berchelmann does not establish time limits at the outset unless the attorneys agree to combine general and individual or specific questions and comments, so that the plaintiff completes voir dire before the defendant begins. Do not tell him you need only a specific amount of time for your part of the jury selection unless you plan to use only that amount of time. He will not give you more time than you requested.
Judge Mireles is opposed to time limits for jury selection and opening statements, but does impose time limits on closing argument. Judge Tanner is also opposed to time limits: “This is your client’s only day in court.” She added that she sees “no need for time limitations,” especially since the addition of judges and the effectiveness of ADR has reduced the workload of the civil district judges.
Judge Montalvo “subscribes to time limits, but he is flexible.” In other words, he imposes them, but is flexible in establishing them. His rationale is that he should “balance the need for fairness to the parties against the need for fairness to the jurors. Jurors are coming to work. This is work for them. Time is just as important to jurors as it is to the attorneys and parties.” So, be prepared to discuss appropriate time limits with Judge Montalvo.
Although he too is “flexible,” Judge Peden imposes time limits at the outset. The time limits are, however, imposed only on general questions or comments to the panel, and the limits are usually 30 to 45 minutes each for that phase. In other words, he does not impose time limits on the specific or individual questions.
To Judge Boone, ìtime is important,î and lawyers should “not waste the jury’s time.” He realizes “every case is different” and he “doesnít know the case,” so he will ask about how much time is needed for voir dire. Although he indicates that he does not set time limits, he answered “no” when asked whether he would allow one and one-half hours for an attorney to conduct voir dire in a trial involving a rear-end collision expected to last one and one-half days. In his court, voir dire is usually completed by 12:30 p.m.
No time limits are imposed by Judge Pozza. But she does ask, “How much time do you need?” And she “will call the attorneys to the bench if they exceed the time requested.” Normally, jury selection lasts about one-half day, although in a recent construction contract case that lasted three weeks, the voir dire was one and one-half days long.
Judge Littlejohn establishes time limits if she combines the general and specific or individual parts of voir dire. Judge Specia does not establish time limits for jury selection. “That’s the only part of the trial I donít establish time limits for. I will put time limits on the trial, on closing arguments,” for example. Judges Haberman and Gabriel do not set time limits, but as with most other judges, want some idea of how long voir dire will take. At this point, Judge Nellermoe will decide case-by-case on time limits. She will start the decision-making process by asking trial lawyers, “How much time do you need?” Judge Simmons is in favor of time limits, but will be flexible and ask the same question. In her first trial, she established time limits of 30 minutes per side. So be prepared to answer that question.
By now, the reader realizes that the time limits under consideration are those established at the outset of jury selection. In other words, time limits here do not mean those established at some point after jury selection begins. All trial lawyers will realize that trial judges may establish time limitations when, for example, the second hour has begun and general voir dire has not been completed, or the fifth hour has come and gone, and only two individual potential jurors have been questioned. If you are long-winded, do not be surprised when the judge calls the attorneys to the bench and asks, “How long is this going to take?” and then instructs you to move through jury selection at a quicker pace. Although Judge Mireles is opposed to time limits even when the lawyers combine general and specific voir dire, he is ìsensitive to jurorsí needs.î So avoid abusing the absence of time limits at the outset.
Judge Peeples thinks using platitudes in jury selection is a waste of time. (For example, “Isn’t the jury system wonderful?”) Judge Berchelmann advises against talking to jurors in the back row until you have determined that challenges for cause will require you to examine any jurors numbered after 24. Spend your time on jurors 1-24 until the judge has indicated that a challenge for cause of any of those jurors will be sustained. Judge Berchelmann believes instructing on definitions of terms, either orally or with a visual aid, bores jurors. Judge Tanner suggested that the appearance of clients may be a problem: “Pay more attention to the appearance of your clients.” She added these bad habits: Asking the same question asked on the juror information form; objecting too much; arguing with the judge in the presence of the jury, that is, overreacting to the rulings of the court.
[Trial lawyers should explain to the jury concepts such as “loss of consortium,” according to Judge Montalvo. He suggests that trial lawyers ask whether the juror would provide fair compensation for injuries if the evidence supports compensation. Some attorneys instead ask whether the juror could “award” damages if the evidence supports an award. Judge Montalvo has observed reactions by jurors to that kind of question, which are unexpected by the attorneys. The reaction may be, “May we award what we want?” The thought underlying that kind of reaction is, “Is this a game of chance where we get to decide whether the plaintiff wins an award?”] Judge Montalvo described other bad habits: “Voir dire is a French word.” “Voir dire is pronounced several different ways. In the east, they pronounce it voir deer, but in the south we say voir dyer.” Judge Peeples emphatically agrees with Judge Montalvo.
Judge Peden described a situation in which, for example, a potential juror tells the attorney for the plaintiff that the juror could not give damages for mental anguish. He thinks arguing with the juror, trying to turn the juror around, especially for an extended period of time, is a mistake. Not only does the lawyer waste precious time, the lawyer takes the risk of poisoning the rest of the panel. He also thinks talking to every juror is unnecessary and not an effective use of time. He would, of course, almost gag on a comment such as, “I like the dress you're wearing today.” He has a sense of humor, but his sense of humor has limits.
Do not tell the jury how long the trial will last. Judge Boone will inform the jury about the expectations on the length of the trial. He thinks lawyers should not ask potential jurors the same questions that are on the juror information form, but, for example, thinks a question about job duties or responsibilities is appropriate even if the potential juror indicates on the form that the juror is a manager for a company. Do not, however, ask about the duties of an insurance adjuster in the presence of the panel. Judge Boone added some other bad habits: failure to have the jury charge ready when you arrive for pre-trial; asking questions that have already been answered; asking a question which does not relate to the qualifications of the potential juror for the trial or any other trial, such as, “Where did your great-grandmother go to high school?”
Describing herself as “very protective of the jury,” Judge Pozza starts on time: “Don’t be late or we’ll start without you.” She also thinks attorneys can be too persuasive during jury selection and can lose jurors once the evidence begins if the attorney has oversold the case during jury selection. Be careful: Underselling the case may be a more effective trial tactic.
Judge Specia thinks the “biggest mistake is not realizing how sensitive jurors are.” Pay attention to how you and your client and witnesses are dressed. He asked, “How do you treat your staff in the presence of the jury?” Do you show respect to the court, or do you fight with the judge in front of the jury? The jury is watching. Judge Haberman thinks one bad habit is using words or asking questions that jurors do not understand.
Judge Berchelmann has seen good use of PowerPoint presentations during voir dire and closing argument. So has Judge Simmons, but she cautions against just reading the screen. Judge Mireles recalled a trial involving an automobile accident in which Guy Allison asked each juror and witness, “Would you ride with a person who had a driving record like that of the defendant?” “Would you let your family ride with a person who had a driving record like that of the defendant?”
Tell the jury, at the outset, “what the case is about.” Judge Montalvo gives an example: “This case is about a momentary lapse of attention. The other driver is not a bad driver.” He would resist going into much detail, but would inform the jury, “I can’t wait to put on the evidence.” Then he would introduce himself. “My name is Frank Montalvo and I need to ask you some questions.” For example, “Do you understand that I have the burden of proof?” “Do you know what ‘burden of proof’ means?”
Use visual aids during voir dire. Judge Peden also believes that “jurors will find substantial damages even if the attorney for the plaintiff does not ask any questions about whether jurors would find a large amount of damages,” based upon the evidence.
Give the potential jurors the “general flavor of the suit, to educate them about what the case is about.” Judge Boone thinks lawyers should then request information from the potential jurors. He urges trial lawyers to establish a rhythm, a “good flow,” by “knowing where exhibits are, knowing where witnesses are, and avoiding rambling.” He added that use of PowerPoint has been effective during voir dire. When lawyers cite legal authority, they should give copies to the other attorneys and to the judge.
Justice Speedlin and Judge Peden both described the same trial lawyer when the subject of effective technique was raised. She informed us that this trial lawyer analyzed what kind of juror he wanted, got information from the jurors, was not cute, did not try to win them over with persuasive arguments, was not a comedian, was polished, and knew what jury charges the judge was going to submit so that he could prepare the jury for the charge with enlargements of the questions and instructions.
Ask this kind of open-ended question: “Why do you feel that way?” “What happened in your life that makes you feel that way?” Those two are suggested by Judge Littlejohn. Using a collision involving minor damage to the automobiles as an example, Judge Specia thinks these questions are effective: “Could you award damages if the evidence showed the passenger was injured even though there was little damage to the cars?” “Do you think a driver could be injured if there was little damage done to the automobile in the rear-end collision?” “What would be your feeling about whether a driver could be injured if there was little damage to the automobiles?” “How will the fact that little damage was done to the automobiles affect you in determining first, whether the driver of the lead automobile was injured and second, the level of injury if the driver was injured?”
Use of Visual Aids During Jury Selection
Judges Peeples and Berchelmann suggest addressing the use of visual aids during the hearing on motions in limine, or at some other point before jury selection begins. Most judges will permit use of visual aids if they will permit use of them during the evidence phase. Judge Mireles thinks the use of film containing moving pictures was effective during jury selection in the wrongful death suit brought on behalf of the daughter of one of our judges. Judge Montalvo thinks a photograph of the scene is appropriate, but not a chart summarizing damages. Such a chart should be saved for use in opening statements.
Visual aids are “not used enough” in voir dire, in the opinion of Judge Peden. Judge Boone approves of the use of visual presenters (commonly referred to as “Elmos,” which is a brand of visual presenters) and of PowerPoint presentations during voir dire. Judges Littlejohn and Nellermoe remind trial lawyers that jury selection ìis not opening statement.î Judge Specia likes visual aids and thinks trial lawyers should use more of them. Judge Haberman describes herself as “pretty conservative” regarding the use of visual aids in voir dire. She approves of the use of charts containing legal definitions of, for example, negligence and proximate cause, but does not permit use of photographs of the scene of accident. Judge Gabriel “really likes PowerPoint presentations.” As previously mentioned, Judge Simmons has also seen effective use of that kind of presentation in jury selection. He “likes visual aids” and thinks that they are “good for jurors.” An example of a helpful visual aid during jury selection is a photograph of the scene of an accident. He approves of the use of charts containing definitions.
Jurors Asking Questions and Taking Notes
Judge Peeples allows questions if in writing, but does not encourage questions from the jurors. Taking notes is fine with him, but he does not permit the jurors to take them to deliberations. Judge Berchelmann permits jurors to ask questions during voir dire, but not during other times. Note taking during the trial is acceptable, but he will explain to the jurors that they may miss some evidence while taking notes, so they do so at their own risk. He will instruct them that they cannot share their notes with other jurors or compare them with the notes of other jurors.
No notes or questions by the jury have been allowed in Judge Mireles’ court, but he is open-minded to the idea if an attorney requests and no attorney objects. The practice of Judge Montalvo is similar to that of Judge Mireles. “Because there are no rules for trials of civil suits as to taking notes and asking questions, I will permit those activities only if the parties agree on a procedure.” But he will not permit jurors to take their notes to the jury room for deliberation. He added that rules for those matters have been established for trials of criminal cases.
Judge Peden does “not let jurors ask questions or take notes during the evidence phase,” but he “may allow questions during the voir dire depending on the questions” by the attorneys. Generally, Judge Boone does not allow questions by the jurors. Taking notes is, however, permitted. He thinks taking notes helps the jurors to stay interested, gives them something to do, and helps them realize they are participants in the administration of justice. But he instructs the jurors that the bailiff will take up the notes at the end of each day, will not disclose them to the attorneys, and will destroy them before deliberations begin so that the jurors may not use them during deliberations. Judge Pozza uses a procedure similar to the procedure used by Judge Berchelmann: The jurors may take notes but may not share them with other jurors or use them during jury deliberations. She goes one step further: She gives an instruction in the jury charge. As a trial judge, Justice Speedlin also gave a written instruction, which was slightly different from the one given by Judge Pozza.
According to Judge Littlejohn, she will instruct the jurors that they may take notes, but they may not share them with other jurors, must leave them in the courtroom when the trial is not in session, and may not use them during the deliberations. She also cautions the jurors that taking notes may distract them from the testimony. ìOnce in a while a curious juror will ask the bailiff for permission to ask a question, and she will then instruct the jurors to submit written questions to the bailiff. She will review the questions and submit them to the attorneys for review.
Sometimes getting "experimental," Judge Specia “has permitted the jury to ask questions two or three times. I have no standard procedure, but I tell the jurors to submit the written questions to me for review with the attorneys, and then I will allow the attorneys to ask the questions.” His procedure for taking notes is proactive: “All of the jurors take notes. We give them pads, clipboards and pens. But I donít let them take the notes home or to the jury room for the deliberations. I realize the absurdity of letting the jurors take notes but not letting them use the notes during deliberations.” (Presumably, the restriction on use of notes is because outside influences may be inquired about upon a motion for new trial based upon jury misconduct.)
Judge Haberman discourages jurors from asking questions during the trial. She would expect to instruct a potential juror to ask a question at the bench during voir dire. As to notes, she permits them, but advises the jurors that the bailiff will take up the notes at the end of each day and before deliberations. She thinks notes are helpful in a case involving a lot of calculations, such as a case involving accounting. According to Judge Gabriel, “more and more jurors ask whether they may take notes during the trial.” His response is that they may do so and he will even provide the paper and pens. Unlike most other judges, however, he will allow the jurors to take notes to the jury room during deliberations. But he instructs them to not share their notes with other jurors. Judge Nellermoe permits, but does not encourage jurors to ask questions. On occasion, juror questions surface through a conversation with the bailiff during breaks. These will be brought to counselsí attention to be addressed when voir dire resumes. As to note taking, Judge Nellermoe states: “I recognize that people come to the jury box equipped with differing listening skills. So I do provide paper and pencils and tell the jury that if taking notes aids any of them in listening carefully to the evidence they are welcome to do so. But I also remind them that while they may take notes into the jury room, their notes are not evidence. Rather they are instructed to rely on the exhibits and testimony to reach their decisions on questions presented in the charge.” Judge Simmons will permit questions during voir dire, but not during the evidence phase. In her practice, she submitted a notebook to jurors, along with a writing pad and pen. She will orally instruct jurors to leave notes in the courtroom and will not permit them to take notes to the jury room. For those interested in further reading on the subject, see the report of the recent study conducted by the National Center for State Courts, in which the Center recommended allowing jurors to take notes and ask questions in cases that are difficult for juries to work with.
Size of Panel
In Bexar County, the normal size of a panel may be from 36 to 40 potential jurors. Judge Tanner requests that trial lawyers inform the judge if they think a larger than normal panel should be requested. Do not wait until a panel of a normal size arrives in the courtroom before alerting the trial judge to explosive facts which will lead to an abnormal number of excuses or challenges for cause.
Allocation of Peremptory Challenges
Texas Rules of Civil Procedure 233 provides that as a general rule each party to a civil action is entitled to six peremptory challenges in a case tried in the district court, and to three in the county courts at law. You should consider timely filing a motion to equalize in a multiple party case. Your motion should address the question of whether parties which claim to be antagonistic to each other should be allowed to exercise peremptory challenges jointly or after conferring with each other.
Timing of the Request by the Judge for a Panel
Judge Boone tries to avoid panels which consist at least in part of potential jurors who have already served on a panel earlier in the day or week. So his clerk may call the attorneys on Friday and ask them to arrive at his courtroom by 9:00 a.m. on Monday, instead of 9:30 a.m. The earlier start time will give the attorneys an opportunity to ask the judge to make an early call for a panel, so that the potential jurors will be fresh, and will not have already been struck in earlier jury service on another panel.
Texas Rules of Civil Procedure 223 provides that either party may request a shuffle of the potential jurors before voir dire examination. Judge Berchelmann tries to avoid a request for a shuffle after the jurors are seated. He does so by bringing the juror information forms in advance of the arrival of the jurors so that the attorneys may determine before arrival of the panel whether to request a shuffle. After reviewing the juror information forms, the parties may determine whether to request a shuffle while the jury panel is still in the central jury room, where a shuffle or a reshuffle is more convenient. Judge Nellermoe thinks Judge Berchelmann has a good idea.
Payment for Jury Service
Judge Specia points out that, under Texas Government Code ß61.001, Bexar County pays jurors only $6.00 per day for jury service.
We pay them less than the cost of lunch and parking. We should treat them like the citizens we want them to be. El Paso County pays jurors $40.00 a day. [So do federal courts.] There should be more leadership from the local bar before Commissioners’ Court. The Bar Association is incredibly quiet on this issue.
Judge Specia challenges the bar to undertake a caring about jurors'project. He urges that the local bar move the Commissionersí Court to increase the amount paid to $40. This recommendation is consistent with the efforts taken by the Jury Service Committee of the State Bar, which it has taken in part because lower-income jurors are not compensated by their employers.
Jeff Akins, Chairman, SABA District Courts Committee
Robin Teague, Chairman of Jury Selection Subcommittee