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