CLE: 2009: New ABA Civil Trial Standards/Impact if any on Family Law Jury Trials

Dublin Core

Title

CLE: 2009: New ABA Civil Trial Standards/Impact if any on Family Law Jury Trials

Creator

Larry Noll

Publisher

St. Mary's University School of Law San Antonio Texas Alumni Homecoming, St. Mary's University School of Law Alumni Homecoming

Date

2009-03-27

Relation

St. Mary's University School of Law Alumni Homecoming

Format

RFC3778

Language

English, en-US

Type

Text

Identifier

STMU_HomecomingCLE2009Noll

PDF Search

Text

I

J

1

l

March 27, 2009
St. Mary's Law School Homecoming CLE
BY
JUDGE LARRY NOLL
408TH DISTRICT COURT BEXAR COUNTY TEXAS

* (1) ABA CIVIL TRIAL PRACTICE STANDARDS FOR CONDUCTING JURY TRIALS/IMPACT ON FAMILY LAW JURY TRIALS
JURY PRACTICE AREA
1 Juror Notebooks

ABA RECOMMENDATIONS/STANDARDS FOR 2007 •• (2) and following
Issued to Jurors; selected exhibits; curricula vitae of persons with special
knowledge; preliminary court instructions; time lines; ch ronologies; helpful fo r
complex cases - Distributed before trial starts; attorneys ag reement needed;
supplementation permissible

2 Juror Note Taking

Memory aids - not evidence ; encourage note taking to help jurors:
allowed in jury room; destroyed after verdict

Permitted by some judges; see PJC instructions 200 .9;
Not allowed to be taken to jury room; SUPREME COURT
ASKED TO AOOPT RULE EXPRES SLY ALLOWING THIS

3 Juror Questions of Witnesses

Allowed by jurors for clarification after direct and cross exam completed;
only written questions allowed; number of juror or name has to be on question;
reviewed and allowed by Judge

Not present practice; however, see 948 SW2 1,3; SUPREME
COURT BE ING ASKED TO FOLLOW TH IS
Tex. App .Dallas, 1997 allowing juror. questions not error)

4 Instructing Jury

Court must advise counsel of intended instructions; cou nsel has opportunity
to object or submit their instructions

Present Family Law practice - Charge conference

5 Exhibits in Jury Room

Provide exhibits to jurors with index of exhibits; have mechanical aid available ;
video recorder etc. to review video tapes; or audio tapes

Present practice except rarely_done or see index for
exhib its for jurors

6 Court Appointed "Experts"
Persons with special knowledge)

Serve as a Judicial tutor- counsel entitled to see or hear what "expert" tells the
court; if testifies; give instructions so as not to telllury_person is court
appointed; costs are problem-tax each j)Srty_ - rare occurrence

done in some cases; i.e. custody cases; complex tracing cases;
valuation of stock options.

7 Tutorial for Court

Recommended in complex cases to educate Judge or jury on technology and/or
complexities of case.

Not_I)J'esent Family_ Law practice: tracing schedules and valuation of
retirement plans and/or stock options.

8 Trial Limitations

Try to limit direct and cross examin ing time; limit number of witnesses; length of
open & closing arguments ; limit total time is goal without prejudicing any party
because of arbitrary time limits

Present practice lim its in some instances in family law;
Voir Dire; open & close; cumulative witnesses; collateral witnesses.

Goals are enhancing juror comprehension
and minimizing juror confusion
" (2) See Standards adopted by ABA August 2007

• (1)

FAMILY LAW PRACTICE
Not present practice

'

'

I

CIVIL TRIAL PRACTICE STANDARDS

Page 2

ABA RECOMMENDATIONS/STANDARDS FOR 2007/2008

JURY PRACTICE AREA

FAMILY LAW PRACTICE

Depends on complexity of case; allow counsel to addess jury to place evidence
in context after each completed phase; each side allowed to address jury as to
meaning and significance of evidence; difficulty between evidence and counsel
statements; overall goal - increase juror comprehension

Not[Jresent Family Law practice; BEING RECOMMENDED TO
SUPREME COURT FOR A RULE TO PERMIT INTERIM
ARGUMENTS

10 Order of Proceeding

Change in order will enhance jury comprehension; organize trial by issues ; allow
open and close on each subject matter; give interim instructions; allow follow up;
further argument on hung jury; bring jury back for counsel to further argue

Not present Family Law practice

11 Demonstrative Evidence

Use summaries of voluminous evidence or charts and let jury see evidence ;
use visual aids

Present Family Law practice; d~ in life of a child.

12 Summary_ Witness Testimony Evidence
& Summary Evidence

Use in complex cases ; summarize witness testim ony~ evidence; exhibits
problem - summary may become or confused as evidence

Divorce cases; monthly income and expense statement inventories;
short hand rendition.

13 Multiple Parties & Questioning

Use one principal examiner and cross-examiner;an objection applies to
all parties on the same side; need agreement to do this

Not present Family Law practice

14 Qualifying Expert Witness

Cannot refer togualified expert as "expert" in front of jury; don't use word
"expert"; use person with specialized knowledge; give instruction - doesn't
have to be believed; qive same weiqht as any other witness; calling someone
an expert may be a comment on th e weight of the evidence or a judicial
endo rsement.
See suqqested instructions @ •••

Not Present Family Law practice; court appointed expert
!psychologist.

15 Motion in Limine

Obtain in advance of trial

Present Family Law practice

16 Bench Trial

Issue rulings to be timely; don't break up; do from

17 Electronic Filing

Go paperless

1-1 -08 Bexar County started process; other courts?

18 TV in Courtroom

Strongly urged; protect jurors from being videoed

up to each judge; done in criminal cases on a regula r basis

19 Courtroom Technology

Wired to update courtrooms to accommodate modern day technoloqy

Bexar County is attemptinq to; 73rd , 131st, 150th; St. Mary's
Courtroom is modern

9 Interim Arguments & Interim Statements

be~ inning

to end like a jury

Present Family Law practice unless case misannounced

'

I

Page 3

J

I

'

CIVIL TRIAL PRACTICE STANDARDS

JURY PRACTICE AREA
20 Videotaped Testimony

ABA RECOMMENDATIONS/STANDARDS FOR 2007 AND BEYOND
Editing encouraged - have objections heard in advance of showing

FAMILY LAW PRACTICE
Present Family Law practice

21 ComQiex Cases

Organize and get ruling early; develop plan and schedu ling order; ABA calls
these "Milestone Dates"; get daubert ruling early

Present Family Law practice- use of Scheduling Order

Refer to ADR with Mediator or have Judge participate in settlement conference;
have parties waive recusal if settlement fails and proceeds to trial
• Suggested 1nstruct1on # 14 contmued- Qual1
fy1ng Expert W1tness

22 Judicial lnvolvment in Settlement

..

Some witnesses who testify claim to have special knowledge, skill, training ,
experience or education that enable them to offer opinions or inferences
concerning issues in dispute. The fact that a witness has knowledge, skill,
training, experience or education does not require you to believe the witness,
to give such a witness's testimony any more weight than that of any other
witness, or to give it any weight at all. It is important for you to keep in mind
that the witness is not the trier of fact. You are the trier of fact. It is for you to
decide whether the testimony of a witness, including any opinions or inferences
of the witness, assists you in finding the facts and deciding the issues that are
in dispute. And, it is for you to decide what weight to give the testimony of a
witness, including a ny opinions or inferences of the witness.

Refer case to mediator is present practice except the judge is not
the mediator or the arbitrator

Files

Collection

Tags

Citation

Larry Noll, “CLE: 2009: New ABA Civil Trial Standards/Impact if any on Family Law Jury Trials,” St. Mary's Law Digital Repository, accessed February 22, 2017, http://lawspace.stmarytx.edu/item/STMU_HomecomingCLE2009Noll.

Document Viewer