During my time on the bench, I welcomed every jury to my courtroom with these remarks.
“Ladies and gentlemen: You live in the greatest country the world has ever known. You are privileged to be citizens of the single greatest society in all of human history. There has never been another country like the United States of America—ever. You should know that one of the many reasons for our nation’s greatness is that we have a robust right to trial by jury enshrined in the Seventh Amendment. The Seventh Amendment is effective only when everyday citizens accept the invitation that arrives in their mailboxes in the form of a jury summons asking them to serve their communities.
The parties before you in court today have exercised their Constitutional right to have a jury of their peers decide the disputed facts in this case. For this reason I have summoned you to my courtroom. On behalf of the citizens of Dallas County and the State of Texas, let me be among the first to thank you for answering the call for jury duty.”
From there, each trial took its own course as the jury was selected, the lawyers gave opening statements, and the jurors dutifully considered the testimony and evidence in cases involving everything from breach of contract and securities fraud all the way
to employment discrimination, wrongful death, and motor vehicle accidents. After the evidence closed, I would read the jury charge, the lawyers would give their closing arguments, and the bailiff would hand the jury the verdict form and evidence. The jury would retire to the jury room for their deliberations where the real final argument— the one among the jurors—took place.
For those of us left in the courtroom, the waiting would begin. The lawyers, their clients, courtroom observers, and the court staff all wondered: Who will be the foreperson? What do the jurors think about this witness or that piece of evidence? What did they think of the lawyers? What evidence did they find most persuasive? What are they going to decide? How long will it take? The idea for this project, The Texas Jury Rules, came from those hours of waiting and wondering. This book sets out to answer these, and other, vital questions about what is really important to jurors, based on videotaped, post-trial interviews.
In Texas, state trial court judges must instruct their jurors that they may not talk about the case—even with their spouses—until the verdict is returned. The jurors are further instructed that they may not talk about the case even with their fellow jurors until they have heard all the evidence and begin their deliberations. I encouraged my juries to strictly follow these instructions by offering to come into the jury room after they returned their verdicts to answer any questions they had. My juries would sit and talk to me, sometimes for hours, about their experience. The genesis of this book is the raw and powerful feedback I received from jurors during those conversations.
Upon retiring to the jury room following a verdict, I would take off my robe and sit at the end of the table and simply ask, “What do you think?” The most common first question from the jurors was “Did we get it right?” My response always encompassed two principles: first, their decision was correct because it reflected the collective decision of twelve qualified persons; and second, their decision was one of many legally acceptable answers to the questions in the jury charge. I would tell them to be proud of their service and their decision.
From there, my conversations with my jurors varied widely, but common themes developed regarding their experience. I would even go so far as to say that I could see a set of basic rules developing from the juror comments. Even as the lawyers, witnesses, and facts of each case changed, the feedback from jurors was remarkably consistent. As I tried more cases, I witnessed trial lawyers—even some very experienced trial lawyers—running afoul of these basic rules, and I began to realize there would be a great deal of value in capturing these sentiments and sharing them with trial practitioners everywhere. But what was I going to do, ask the jurors to quit their jobs and go on the lecture circuit with me to teach trial lawyers how to relate to jurors? Then one of my interns suggested that we videotape a few juror interviews and use them as a teaching tool. So I began asking jurors to sit for videotaped interviews. Rather than personally conducting the interviews, I had my law student interns do them. I spent several hours with them, composing a list of common questions and issues to explore with each juror. It was a great learning experience for them and yielded a treasure trove of information for practicing lawyers.
The videotaped interviews were collected during 2009 and 2010 from jurors who served in civil cases before the 134th Judicial District Court in Dallas County, Texas. The district courts are the highest level trial courts in the Texas judicial system; consequently, the cases these jurors considered included significant damage claims. I committed
to keep their identities anonymous (of course, I told them I could not prevent someone from recognizing them when their videotaped interview was shown) and asked that they not identify lawyers, parties, and witnesses by name. Finally, I promised the jurors I would use their interviews to make presentations to other lawyers, judges, and citizens about the importance of the right to trial by jury.
Hundreds of jurors shared their thoughts, and over 60 agreed to sit for videotaped interviews resulting in over 25 hours of footage. The interviews ranged in length from 10 minutes to over an hour. Initially, the jurors were asked open-ended questions with more direct follow-up questions. No subject was off limits. By having my interns conduct the interviews, I believe we received open and unvarnished answers to many of our questions. Reviewing the interviews was a powerful experience because the jurors shared their most intimate thoughts about the trials in which they served. They explained how they picked their foreperson, how they conducted their deliberations, what witnesses and evidence they found persuasive, what they thought about the lawyers, how proud they were to serve as jurors, and how to make the whole process better.
The project turned out far better than I imagined possible, and I quickly acknowledged the responsibility to share this information with others. I also realized that it would be a substantial undertaking to review 25 hours of interview footage, analyze the data, and organize it for effective presentation. I decided I needed a partner for this project, someone who had actual jury trial experience, a passion for courtroom psychology, and boundless energy. In sum, I needed someone to help me in my stewardship of the collective knowledge entrusted to me by my jurors. I needed my friend, Trey Cox!
Trey Cox is the most effective communicator I have ever met. He is a board-certified civil trial lawyer at Texas’ premier commercial litigation boutique. Trey has successfully tried dozens of high-stakes business cases to verdict and received numerous professional acknowledgments, but these successes are just a byproduct of his passion for excellence in the courtroom. His writing and presentations on courtroom decision-making and the effective use of demonstrative evidence have changed the way lawyers communicate with judges and juries.
Over lunch in September 2010, I thankfully welcomed Trey as a partner on this project. During the next year we analyzed the 25 hours of interview footage. Initially, we plucked out over 300 clips to use in making presentations for judges, lawyers, and law students. We had the privilege of presenting the juror videos to the Garland Walker Inn of Court in Houston, the Texas College for Newly-Appointed and Elected Judges in Austin, the Trial Skills Section of the Dallas Bar Association, and the annual meeting of the Texas Trial Lawyers Association. These initial presentations focused on jurors’ opinions about different aspects of trial advocacy. The response was overwhelmingly positive. We found there was a tremendous appetite for the information we were sharing. People wanted more. They asked for rules; they asked for checklists. They asked for something they could have as a takeaway that contained the lessons and rules of the juror interviews. This book, The Texas Jury Rules, is our response to those requests.
In this book, we have taken what the jurors said in their interviews and distilled ten specific rules. Each rule contains some of the best quotations from the juror interviews about that specific aspect of trial presentation. Of course, each rule will give rise to a few war stories along with some of our opinions. Many of the opinions offered by the jurors are common sense; nonetheless they are lessons that deserve repeating. Some of the opinions—and maybe some of the rules—will surprise you. They may even be contrary to the conventional wisdom of so-called experts of jury trial advocacy. Keep in mind however, that we support each of the rules with the words of Texas jurors.
We hope that you will find these rules valuable to your trial practice. The right to trial by jury is one of the crown jewels of American society. We owe it to our clients and the judges and juries who serve in our judicial system to present our client’s best case.
We appreciate your support and the fact that you purchased this book. We want to hear from you if you have comments. There are several ways you can do so. First we have a website dedicated to this project and the book: TheTexasJuryRules.com. We will from time to time provide new information and content as well as notice of our speaking engagements. In addition, you can reach me at JamesMStanton@andrewskurth.com or Trey at firstname.lastname@example.org. Like you, we have active trial practices and busy personal and professional lives, but we are committed to responding to everyone. We hope you enjoy the book and look forward to hearing from you.
James M. Stanton