Richel Rivers | An Expert’s Guide to Family Law Jury Trials

Today we’re excited to welcome Richel “Rikky” Rivers to the Texas Family Law Insiders podcast. 

Rikky has been practicing law for 46 years because she loves her work. She is Board Certified in Civil Trial Law, Civil Appellate Law and Family Law, and is a member of the American Board of Trial Advocates.  

An expert in family law jury trials, we invited her on the show today to share her knowledge and give us an in-depth look at everything you need to know to prepare yourself, your case, and your client for a jury.

Listen as she walks us through:

  • A bench trial vs. a jury trial, and the 3 types of cases that are most ripe for a jury 
  • What attorneys should bifurcate, what about overlap, and when to file a motion in limine
  • The most important thing to discuss with your client about going in front of a jury and how to prepare your client to be the best witness for themselves in front of the 12 people in the room deciding their case
  • The 3 step process for voir dire, the two sentence structure she swears by, and what causes her to strike a juror
  • And much, much more—if you have a jury trial in your future, this is an episode not to be missed

Mentioned in this episode:


Richel Rivers: When you talk to the jury, you want to relate to that jury. You want that jury to think that you are giving them something they’re interested in.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly: We’re excited to welcome Richel Rivers as our guest today on the Texas Family Law Insiders podcast. Richel goes by Rikky and she is a founder of Rivers McNamara PLLC in Austin, Texas. She’s Board Certified in Civil Trial, Appellate and Family Law. And she’s a member of the prestigious American Board of Trial Advocates. Rikky’s been trying cases for 46 years concentrating in the family law arena for most of that time. She frequently writes and talks about child practice, ethics and family law topics. She has worked with bar committees addressing trial practice issues, including administration of rules of evidence in the family law pattern jury charge manual. Her practice involves complex family law matters at the trial and appellate levels. Thank you so much for joining us today.

Richel: Oh, it’s my pleasure to be here, Holly.

Holly: So why don’t you start by telling us a little bit about yourself?

Richel: Well, I have the great gift in my life of loving my work. I’ve been a lawyer for 46 years. I started out after well, during law school at UT working at the Attorney General’s office where I did trial and appellate work mostly large class action, civil rights lawsuits. Got a lot of experience there. I left after four years into private practice and essentially say I had two jobs. I started with a local Austin firm then called Hilgers and Watkins, which merged into a regional firm Brown McCarroll and then in 2011, my law partner, Mary Evelyn McNamara and I took the Family Law Section of what we call the big law firm, onto our own platform. So we’ve been operating Rivers McNamara since 2011. We’ve together done it done family law work, essentially at the trial and appellate level. I like to say we represent people, we rarely represent entities and we have a pretty diverse group of clients and cases that come to us.

Holly: How would you describe your current practice?

Richel: Well, it hasn’t changed much in the sense that people come to us because they’re having a relationship fear of some sort. Either they’re facing a divorce, or they have some problem, post divorce problem parenting their children. So we deal with both the money and the relationship, general parenting issues that come from that situation. I started out practicing at Hilgers and Watkins when it was called Hilgers Watkins and Kazen. Barbara Kazen was a partner at the law firm, and she at the time was a preeminent family lawyer. She very quickly became involved in writing what was an 18 volume, I think, practice manual from Texas family law called the case in Texas family law, and I don’t think I’ve done anything different from them to now.

Holly: So today, we’re here to primarily talk about an issue that many family lawyers aren’t very familiar with. And that is jury trials. I know you have quite a bit of experience doing jury trials. I’ve actually yet to do one, but I do have one coming up here in 2022. How many jury trials have you done in your career?

Richel: Oh, goodness, you know, I can’t, I can’t say. I did have to go back and get records to support my application to the American Board of Trial Advocates so I know I have at least 20. There are many I have before the age of computers, for which I don’t have the details of information. That by the way is a tip to young lawyers, do keep records, start your spreadsheet now Holly, and make sure you keep the details of the case name, the case number, the judge, the parties, the issues because you will need it.

Holly: So a lot of female lawyers don’t have experience with doing jury trials, because the issues are narrow that a jury can decide and certainly there’s a lot of rolling the dice, so to speak when you have a jury. So what types of cases have you seen more often actually having a jury trial?

Richel: That’s a really good question. And I think you’re right that family lawyers typically will advise a client that a jury trial is very expensive, that there’s only a few things that a jury can decide. The judge is going to do the decision making on issues that are generally very important to them involving your children. So the cases that I see going into jury trial are ones where often there’s an imbalance in resources. The one with the greater resources will ask for a jury trial knowing that it will be more costly. Sometimes I see a jury trial requested from lawyers who aren’t as experienced as in family law.

So they sort of think of that as a tactic that’s in the litigator’s bag, but may not be best for what the situation is in the family manner. And then finally, there are cases where there’s truly a thought by one or both of the parties that they want their peers to decide this not a judge. I’ve seen all of those manifestations. You’re right, that it’s it’s rare, that there really is a jury trial, sometimes due to demand and the dropping of the demand. It’s rare that it goes all the way through to a jury trial.

Holly: So in the event, you find yourself with a case that goes to a jury trial, what are some of the main differences between a jury trial and a bench trial?

Richel: One of the main differences between a jury trial and a bench trial is cost. The jury trial is much more expensive. Generally, I will tell clients that we’re looking at perhaps twice as much money to try the case before a jury then we would before a judge. Another big issue has to do with the skill set required of the lawyer. I think that trying a case to a jury is very different from trying it to the judge often who you already know. So there’s some different flexibilities that the trial lawyer must bring to the task relating to the jury. And then also I think that there’s a big issue involving our skills as a lawyer to handle the procedures associated with a jury trial and a family law case. They are different from the procedures associated with any other kind of jury trial.

Holly: So because the jury considers some issues, and the judge decides other issues, should attorneys be considering bifurcating those?

Richel: Absolutely. Bifurcation of a jury function and a judge function in a family law case works. It seems to be the kind of approach that judges favor. Often when I have done a family law jury trial, I find that the opposing counsel hasn’t done that before. And so we have to talk through what we mean by a bifurcated trial. And generally, we reach an agreement about the bifurcation.

Holly: So if you are going to request bifurcating it, is there any particular deadline by when you need to do that?

Richel: One of the differences between a jury trial and a bench trial are the pre trial deadlines we have to pay attention to. Every court that I’ve been in has a different set of rules for jury trials and bench trials. So first step is always check your jurisdiction’s special rules for jury trials. Generally those special rules will have pre trial deadlines that involve in one way or the other the identification of issues, the requirement that counsel confer, to see if they can resolve those issues. And if not a setting of a pre trial conference to see if the court can resolve them before trial. I’ve also had the experience where a court will not do that before they call the case because the case won’t be assigned to them until the day of trial. Usually, that’s in a situation where we have a central docket and many judges on the docket. Again, individual judges might do that too, because of their docket demands.

Holly: So I know you mentioned you usually reach an agreement on the other side about bifurcation. If the other side is not willing to bifurcate. In your experience, have judges granted a motion to bifurcate or do they require agreement?

Richel: My experience is that a judge will control the course of the case. Control how the case will be conducted. Often we’re educating a court too. We often have turnover in our benches and some judges haven’t had a family law jury trial. And so they too have to familiarize themselves with what is a jury issue and what is a bench issue? And then they will do it as efficiently as possible. The motion to bifurcate really is just a way to signal to the judge here’s what we need to do. And here’s our suggestion about how to go about doing it. So essentially what a judge will do is say let’s take what the judge needs, or the jury needs to hear first, and then we’ll take what I need to hear alone while the jury is out.

Holly: So, presumably there is a decent amount of overlap between what the jury would hear and what the judge would hear. Does the judge also consider what happened during the jury portion? Are you starting completely fresh and you need to rehash everything?

Richel: That’s a really good question, Holly. The idea to achieve efficiency is not to have to do it twice. And much of what you’re going to be presenting to the jury, you will want the judge to hear as well. For example, a jury will, in a child related case determine whether the parties, the parents, ought to be joint managing conservators, or one of them should be a sole managing conservatory. If they’re joined, the jury will decide whether one should have the right to determine the primary residence. Well, with that information, the judge has to decide such things as the powers and allocation of powers and duties to the parents and then the possession schedule. Surely those issues will involve the same facts that went into the conservatorship decision.

So that’s, that’s certainly what we’ll do when we begin the judge phase of the trial is refer back and remind the judge of what came before and then we’ll present additional information to help fill out what the judge needs to do. And you also raised another point, Holly, that I think is really important and often overlooked. And that is that family, the conservatorship issues aren’t the only issues in a trial that a jury may decide. And so that’s the key to your conference with opposing counsel and with the court, to identify all factual disputes that need to be resolved. So that, you know, going into your presentation of evidence, when you’re going to put on the evidence. For example, a factual dispute might be an award of attorneys fees. What is a reasonable and necessary attorney fee? That’s a factual issue.

If it’s disputed does it go to the jury? Do you have to present all of that information for the jury? Boy, that can get messy. I’ve never had to do that. Because we’ve almost always, well we have always resolved to the attorney fee issue by saying we are going to try before the jury issues number one, two and three and all other issues, including all other factual disputes, will be presented to the court for bench consideration only. With that clarification, then you won’t be waiving claims that should be trial before the jury.

Holly: So I can envision there being disputes about whether something is a fact issue or a legal issue. For example, with a fit parent presumption or with the parental presumption in the family code, you know, if we’re if we’re trying to prove that a parent is unfit, there are certain factual things that could lead to the conclusion that a parent is unfit. But I would think that that is ultimately a legal conclusion based upon whatever the facts were. How and if the sides don’t agree as to this is a jury issue or this is a judge issue. How do you handle it?

Richel: This is an interesting question. One of the new things we have in our family law legal template that we have to deal with is, is the unfit parent statutory approach, and and case driven approach to determination of the biological parents’ rights. I think that the place to start always in a jury trial, well before the trial itself is the charge. What is the question that a jury has to answer? That is the factual dispute. So if the question to be decided by the jury is, was this should these two parents be named joint managing conservators? Or should one of them be named the sole managing conservator? That’s the factual issue. And let’s say the jury decides that the alleged fit parent and unfit parent should be joint managing conservatory, your question raises the issue of well, doesn’t our evidence established as a matter of law, that the unfit parent cannot be a joint managing conservator?

Another manifestation of that issue might be a situation where there was family violence within two years. We have statutory guidance on what the conservatorship should be in that situation. So again, my my approach to that would be to cover all your bases, make sure that you are not failing to get the right issue that is a factual dispute presented to the jury. That is submit the charge for that issue, present the evidence on that issue, and then come back and talk to the judge. I can hardly imagine a situation where the factual evidence shows a parent to be unfit. And the result would be a jury would say, let’s make them managing conservators anyway. But we don’t have a lot of guidance yet, do we, on what an unfit parent it?

Holly: Right. And you know, if we have a case between a parent and a non parent. Let’s say that it’s, looking at CJC, where you had a non parent, grandparents were kicked out, but if you had grandparents against a parent, and their child had died, a jury could be very sympathetic to that and may want to award the parent, or the grandparent conservatorship, even though as a matter of law, it hasn’t been proved that the parent is unfit.

Richel: Very good point. And this is probably this is a good example of why jury trials can be so much more expensive. What I would suggest in an unfit parents scenario is that first, you start with pre trial motions, maybe even a motion for summary judgment. What are the facts that the grandparent is bringing forth to ask for conservatorship? And do they rise to the level of establishing as a matter of law, that the parent, the biological parent is unfit. Try that in summary judgment motion. If that doesn’t work, generally courts will carry that. Be sure to raise it again, at the conclusion of the presentation with grandparent’s evidence in a motion for a directed verdict, ensure that that’s already prepared, and in your kit and ready to pull out.

And then once jury verdict comes in, you may, it may become moot at that point because of the finding of the jury. But if it’s not, and we have another motion to present to the court for a directed verdict at the end of the conclusion all of the evidence. So you want to preserve it as far as you can, in order to establish what you think the parameters for fit parents ought to be. Then, of course, maybe if you have the resources in case looking at an appellate review of all of those steps and the facts you developed.

Holly: So what other, you mentioned briefly about pretrial motions that we have in jury trials that we don’t in bench trials, and we talked about motion to bifurcate. What other pre trial motions do we need to be thinking about?

Richel: I don’t always do this. In every case, although I think rule the court rules specific court rules are getting to the point where they require it that I do like to know what the case is going to look at. So I would like to have a list of witnesses, a list of exhibits. Course we generally do limit emotions before trial rolls around. And if the court rules don’t require that exchange, then I will do usually file a motion and make it one of the pretrial orders so that we can talk to the court ahead of time. One of the big issues especially during Covid, that I have found to be very effective, is a request that we lawyers set the case up for the most efficient presentation possible.

So I will ask that we not only exchange the exhibit lists, but that we pre agree on the pre admission of those exhibits, so that we don’t have to go back and forth. Different judges handle that in different ways. But the judges who are able to manage the case most efficiently generally do rule in a way that minimizes the fight over admissibility. The requirement that we spend time giving foundational testimony. That will make the jury’s eyes glaze over. And we’ll take a lot more time that needed.

Holly: So you mentioned motions in limine. For those who haven’t thought about that since law school, can you kind of explain what a motion in limine is and why you would need to file one.

Richel: A limine motion is designed to force the lawyer not to get into that information without first approaching the bench at the point in trial progress. Lawyer wants to present that information and to have a determination by the judge at that time when it’s admissible. Now most judges to have a standard form limine motion so the first thing to do of course is to pull up your court’s standard form because it will have the obvious stuff. If the jury has gotten into deciding attorneys fees, you don’t necessarily need to be talking about attorneys fees. The jury is not going to be hearing about all their many other things about that remote are one of the things I always look forward in parenting cases is complaints about a parent that happened so long ago.

They cannot really be relevant to current parenting issues. We want to look for remote incidents and identify them. That will be something you would add to the standard jury limine form the courts have. The problem with a limine motion is that most of us lawyers don’t really know how to deal with it. The thing to be very clear about when you’re going in is what am I supposed to stay away from? What am I supposed to not ask? And if you bump up against something like that, then the best thing during trial to ask the court, may we approach the bench, tell the court what you want to get into, and then get some guidance.

Holly: So let’s say you file a motion in limine and it’s granted that nobody’s going to talk about anything, say before the prior order. And the other side brings it up, in testimony in violation of that granted motion in limine. How do you handle that?

Richel: Of course, you have to immediately object and the manner of objection will either stimulate the jury’s interest in what you’re objecting to, or it will, they’ll be so tired, they won’t care at that point. So you want to conduct yourself in a way that doesn’t highlight and call attention to what was happening. And generally, what you do is you stand up and say, Your Honor, may we approach the bench. And we approach the bench. So that then you can lodge your objection outside of the hearing of the jury. And generally, what I find is the court will say, objection granted Ms. Rivers and other lawyer is instructed to avoid that issue. And so then the other lawyer, we go back to our table just moves on, and it doesn’t become a big issue in the case.

Holly: All right, so one of the things you had mentioned to me about the differences between jury trial and bench trial is client preparation. So what is, what makes it different if you’re going for a jury?

Richel: We all know how nerve wracking it can be for our clients to go to court. They are used to talking about their lives within a circle of friends who appreciate them and understand them and can tolerate their manner of speaking. When they get to our office, they’re often so surprised that we tell them that won’t work. We have to teach them how to be the best witness for themselves that they can do. We start with that in the very first consultation, we have with out clients. We listen to them, we see how they present, we give them feedback about their case, and options about how to proceed. If they then decide to go ahead and hire us, then they pretty much got an idea of where we’re going to be drawing the line in their presentation. Many times those clients are going to need a lot of training on how to conduct themselves when they have a speaking part in the process.

So that might happen at temporary orders, that might happen, it may not happen until a mediation and the only person you’re going to get to talk to is the mediator. Which of course is not as important as the fact finding is still important. On a jury trial, not only are they having had to run the gauntlet of first talking to us as lawyers, and present themselves, then talking to us in our prep sessions before interim hearings. Then talking to us about how to conduct themselves in mediation, now we’re going to have to talk with us about how they’re going to behave in court. How they’re going to answer in court. My sessions with my clients leading up to a jury trial are always much more lengthy than they are if it’s a bench trial. In a jury trial, I will have to develop points with more questions than I generally do before a judge.

Usually, we will work with the client about how they sit in their chair, how they, how they relate to not only their own lawyer, but opposing counsel so that they don’t look like two different personalities in one sitting. And we also have to teach them about how to be aware of the 12 people sitting in the box to their right or to their left. It’s not an easy thing. It’s interesting how to me how different things are for for laypeople and clients and witnesses in the Zoom age, because it seems like people are a whole lot more comfortable on this virtual platform than they are in person. So I’m interested to see how when we emerge from this, other people are going to be better at it to then they have been before having this experience.

Holly: Do you go through the jury charge with your client and to what extent are you discussing those issues with them?

Richel: Absolutely. From the beginning. One of the things that we have to work out with our clients is an understanding that what our construction our instructions are do they want a jusry trial. Sometimes the client will walk in in the first meeting and say, I want a jury because my spouse was so bad about this that and the other. And so we have to talk to them about jury trials, whether whether we are thinking about it or the other side’s thinking that we need to let them know what the issues are. We need to have them make a decision and instruct us whether they want a jury trial or not. They don’t have a choice if the other side’s the one that’s filed the Jury Demand and we have to immediately begin instructing them, educating them about what that means. And I will almost always immediately start telling them what what it is that a jury does, the jury must answer specific questions.

And let’s talk about what those questions are. And let’s deconstruct from there, let’s go backwards. The question is, should you and your children’s other parent be named joint managing conservators? Or Should one of you be named sole managing conservator? What is that going to mean? How are you going to be talking to the jury in a way that will help them answer that question? So that’s how we that’s how we teach them about what a jury is when it charges and they will not be able to follow all of the legal conversation about the jury charge. I will always give them the document ahead of time before it’s circulated. We don’t generally have much involvement in clients when we’re actually to the point submitting, discussing with the court and finalizing the charge. At least they know what charge is and we know what it’s all about.

Holly: Is the jury charge, one of the first things you do if you know you’re gonna have a jury trial?

Richel: That certainly is the advice I’ve always heard everybody get. I think in practice, it’s not always done right away. It certainly is at the top of the list of issues to discuss with the client. But it’s really not until we start talking about setting the case that I begin to work on the jury charge itself. Because again, I think, at least half the time, if not more, when a jury charge is, jury demand is filed by the other side, they’ll eventually drop it. So we don’t want to do work you don’t I have to do. I think the most problematical thing in a jury situation is swinging property issues, not child related issues.

Property issues in a jury trial can be extremely complex and can involve very strategic decision making on part of it. And often you have to figure out how to address the issues in a way that you think is going to be persuasive. It may be that there’s three different ways to pitch a particular case, a particular claim, and only one of them is particularly persuasive. And so you’ll only submit one, and you want to make sure your client understands you’re only submitting one. You could say it three ways rather than say it one. It’s it’s a difficult thing. For me to be part of the decision making you need to document the decision making.

Holly: So you have your jury trial, and you’re showing up the first day and it’s time to pick a jury. So let’s talk a little bit about voir dire. What are your key points of advice when thinking about voir dire?

Richel: First, when you talk to the jury, you want to relate to that jury. You want that jury to think that you are giving them something they’re interested in, to relate to you. An example, I tried a jury, before a jury a case involving parental alienation. My client was the alienated parent. The alienating parent was the respondent. We were the petitioner. And so my task in front of the jury right from the beginning was to somehow explain to the jury that we’re coming in asking to be the primary parent, primary conservator of those children who don’t want to have anything to do with, who have absolutely no interest in having contact whatsoever. So how do you do that? How do you start out there? And my opening question to the panel was are children always right?

Well, you can imagine the reaction the whole panel just erupted with absolutely not and laughing and talking to each other and moving around and it was the easiest voir dire I’ve ever done. Because everybody has their own experience of what what we’re talking about. We’re dealing with common themes that everybody knows something about. So we move to general understanding that children aren’t always right, to what can they be wrong about. How can they be influenced? What is appropriate influence? What’s good for kids, what’s not good for kids. You’re just getting them to talk. If you find yourself talking more than you, they’re talking change so that you can just be asking questions and getting them to give you their ideas and you can pick your jurors.

Holly: To what extent if at all, can you discuss anything from the case while you’re doing voir dire?

Richel: I think it’s an issue of timing, how much time do you have to talk with that jury? The difference between voir dire and opening statement is in the degree of specificity that you’re getting into. A court will certainly allow you to tell the panel the entire panel that you’re going to be picking your jury from, what’s the nature of the case. And what sort of issues would be involved in jurors, potential jurors have any experience with or thoughts about these issues. Now that does require you to explain the issues. So in the alienation case, for example, I believe this case is going to involve an issue of children’s preferences, and what they want in terms of who will be their primary caretaker after this divorce is over.

And you want to be able to have usually one or two sentences to go to the heart of the main dispute. In that case, it might be, we in this case, will show we believe that the children have been improperly influenced, and so that the preferences they need to be taken care of. So you want a theme, you want to carry that theme from the first description of what the issue is. And then when you get to opening the statement, add few facts to it and the presentation.

Holly: Do you use jury questionnaires when you’re picking a jury?

Richel: I have never done that. Over the years, I’ve noticed that our judges have developed a jury questionnaire themselves. Usually that information is sufficient. I have had a couple of cases that involve high profile issues and personalities. And sometimes we do ask the court to do a little bit of preliminary questioning first. Judges, my at least my judges, at least the ones that I have tried cases in front of aren’t particularly interested in more work and so we don’t have to have other another hearing and another fight over stuff, if we can avoid it. I don’t I don’t necessarily think it’s that important to do that.

Holly: So what types of things do jurors say that lead you to try to strike them for cause?

Richel: In a child related case, intense experience that seems to go against the position we’re taking. Sometimes we will have parents who have firmly formed attitudes about who should be the one to primarily care care for the children. That might be gender based, they might have something to do with the ability to support the children. Might have to do with an intense feeling that they’ve been ousted from their children’s upbringing to some period of time. So we want to look for intense feelings about parents and see how those flow that’s that’s very important in the child-related cases. In property cases, you’ll want to find out if people have have some some serious issues where they felt like they’ve been wronged.

What is the nature of that wrong? And generally, if you find if you find that, then the court will call the person up to the bench, and lawyers will have a chance to question that potential juror. Depending on how intense the feeling is usually they’ll say something, the judge will say thank you, counsel. We’ll go back and the judge will talk with us and say do you both agree that person is stricken. So usually I’ll have to use a strike form. Usually we’ll end up getting them off the panel at that point.

Holly: So if the other side doesn’t agree that they should be struck for cause. Are you going to have to use your one of your own strikes? Or is the judge possibly going to strike without an agreement?

Richel: The way that the court generally resolves the request to strike in at least in my experience has to do with how the potential juror answered the question. Can you set aside that feeling and obey the judge’s instructions? And how well they answered that question will usually determine the judge’s ruling. The better they answer that question, the less likely the court is going to strike them. And the more likely you’re going to have to use a strike. So there comes your technique for evaluating your panel. That’s a that’s the most intense 10 minutes in the entire trial, I think.

Holly: So in family law cases, usually we only have two parties, you know, the mom versus dad or husband versus wife or what have you. But every once in a while we have third party or even more than that, in the case. Is there a time when we should be moving to equalize strikes?

Richel: I think you should always do that if it favors you and oppose it if it doesn’t. A third party in a case can be for example, a grandparent or some other important person in the children’s lives. And generally, there’s an alignment of some sort. And you will want to know where that alignment is. If you’re on the on the short end of that stick, the alignment is on the other side, you’re going to want to limit their number of strikes. And I do think that courts will generally begin to simplify the case and start with an identification of the parties’ positions, and maybe causing them to go together and exercise certain number of strikes is the way to do it.

One time, I think I remember I had a situation where one side had six and the other side would have had 12. With the court, did was given them 9. And they exercised together because there were some differences between the two sides and some similarities between these two sides. And I think I don’t remember whether they got to exercise them, they got to meet together or not. I don’t think the judge monitors that. But yeah, I do think that that’s always a good trick, Holly, and I suggest that you think about it, depending on what you got.

Holly: Is that something that would need to be filed along with the other pretrial motions? Or can you raise that issue at voir dire?

Richel: My experience is always raise everything you can as early as possible. You want to have it, you want to raise it early and speak it often. Many chances to talk about it. That’s the basically every time you talk about it, you’re going to you’re going to do it better than next time, you’re going to get feedback from the judge, and get the judge’s feeling about it. And the judge will almost always be open for further conversation as the case develops. Often the first, the first answer from the court is let’s see how things go.

Holly: So now we have our jury, and we’re starting our presentation of our case. What tips do you have as far as opening arguments in a jury trial?

Richel: Be brief, be specific, and give them things they will remember. I would say don’t take more than 10 minutes, if you can take five, you’re better off. You’re basically just going to get the bullet points. These are the things we are going to show, these are the things we want, we expect that you will find and frame it in terms of the jury charge. So you, Mr. So and So my client is here today to show that his children need him to take care of them most of the days of their lives. To take care of their school, To care of getting their dental appointments, to take care of getting their doctor’s appointments. We will be here today to show you that he must do that because he’s always done it. And because to leave it to their mother means they will not get, whatever it is. It’s a summary of what the evidence is we’re going to be showing. So you’re going to leave them in your opening and expect to show that point.

Holly: Do you use anything like a PowerPoint when you’re doing an opening statement to try and emphasize anything or provide extra information for the jury?

Richel: I never have. I have often wondered whether it would be useful. I think it’s Rick Robertson, has a lovely talk he gives about PowerPoints that show pictures. So a picture’s worth 1000 words, if he can be talking, you got a five minute display and you can click through a few pictures. Why this father’s an active father that that’s not a bad thing to do. In my experience, with courtrooms that I’ve been in have often not been very conducive to trying to get the jury to look over at a screen and look at you too. So you will want to make sure your layout works. You’re not just distracting the jury from what you want to see.

I’ll tell you a story. I have a daughter in law who is in the military and she speaks about one of her commanding officers who was so effective because every time he stood up to talk he had one picture. One picture. And the one picture he had said everything he wanted to say. And that struck me as really important. So I read the man’s book. And he’s really good about that. He has he has the ability to summarize what he wants to convey with one image. So yeah, I mean, I would say it used to be we had poster boards, and I have had an easel with a poster board on it, that has something, something that I wanted to emphasize. And that, of course can be accomplished with screens in front of you.

Holly: In terms of witnesses, be that your client or any other witnesses that you’re calling? I know you mentioned earlier that it may take more questions in a jury trial. Can you go a little bit deeper into that and what the differences are there?

Richel: What you want the jury to see your client is something more than the initial impression. You want to see something deep about his or her ability, again, in a child related case, his or her ability to be a parent. And so I’m going to spend more time questioning about what, what his or her experience was when becoming a parent. What was it like when your baby was born? What did you do? How did you become involved? What sort of time did you take off from work? What are your friends know about your devotion, as a father? You want to get a background, that there’s a description of the whole person, which will probably go into more depth than with the court. The courts get that information very quickly. Then you’ll want to get to the part of the narrative that involves the break up of the family. What caused it, how did it happen?

And you want to be able to do that in a way that doesn’t sound accusatory and judgmental, about the other parent. Essentially, there’s a notion that the parent who is best able to love the children, despite anger or antipathy toward the other parent, is going to be superior than the one who is consumed by anger. And so you want to be able to get through to the surface of that. Often I have few people come in and say, my, my husband is the nicest person in the world. If you met him on the street, everybody thinks he’s just great. But boy, when behind closed doors, they will have a notion that there’s a different personality that presents within the family the unit than out in the world. If you will want to be able to delve into that with, with anecdotes, with questions, with issues about actually how to live their lives. That takes time. So I usually use a 15. I have two rules. One is what I call the 80/20 rule, which says I’m going to devote 80% of my questioning time to the parties, the parents are going to be going to be the ones who are going to get the best information. 20 percent is going be the collateral.

The other is a 15 minute rule, I probably won’t spend more than 15 minutes questioning somebody about that. But because again, you’re going to be losing the audience’s interest. But you want to develop it enough so that if we get to that pause point, we’ve gotten the history down, it might be time for a break. You want to kind of keep your eye on the clock all the time. If there’s a break then let them go take the break thinking about, hmm that guy was the coach of a soccer team, basketball team, and the baseball team, and took his daughter to gymnastics and ballet or something. So they’re gonna compare whatever they heard to their own experience and want them to make it something they can understand.

Holly: Do you, how do you handle exhibits when you’re in a jury trial because the jury can’t see them until they’ve been admitted? And presumably there are going to be some that weren’t agreed upon as being admissible. So how do you handle that?

Richel: The exhibit first has to be prepped for display. So you talked about PowerPoints, you will want to have some means of showing, of riveting the jury’s eyes to the part of the specific exhibit you want. Now, the foundation that you have to give for that exhibit will vary depending on how you’re pre trials. It’s already in evidence, then you say, Mr. Smith, I want to direct your attention what has been admitted as Exhibit, as petitioner’s exhibit number one. I want to direct your attention to page two, the portion I’ve got highlighted, and I’ll be walking over and handing him that exhibit or on Zoom, lately I’ve been doing it electronically. Now will you look at the highlighted portion of exhibit number one, explain what that is.

Now you’ve got them looking at the highlighted portion of exhibit not the whole exhibit, you’re not wasting time and everything else. And you’re having him basically setting up what they’re looking at. This is an email I got from my wife three weeks ago in which she, and then you can fill in the blank from there. Usually be usually it’s something pretty outrageous. And it explains the point of maybe lack of control or excessive anger, some something to that effect. We want it to be the front and center. And so all they’re going to be looking at is a bolded highlighted portion and explaining what that is in the context.

Holly: What about when it hasn’t already been admitted?

Richel: So in the course of the trial, you’ve always got the jury in your peripheral vision. You’ve got the exhibit in your hand, you’ve got the witness that you’re paying attention to you got the judge that you always want to track and make sure you know what’s happening, you’re going to walk up to the, or may approach the witness Your Honor. I’m showing you Mr. Smith, what has been marked as exhibit number one, can you briefly describe what that it. He’ll say, so you’ve already prepped him on what on what foundational information is. This is an email I received from my wife three, three weeks ago about the children. Your Honor I offer exhibit to one. I will I will almost always attempt to get the exhibit admitted as soon as possible.

And generally we lawyers get into a rhythm where we know what’s going to be admitted and what’s not and we don’t want to be the one who is standing up and making the kinds of objections that prolong the case unnecessarily. Your Honor, objection foundation. Sustained. Now you’ve got to go and ask another question. Generally, I have found that that doesn’t happen, often. Certainly not always.

Holly: So we’re just about out of time. But what, are there any other jury trial tips that we haven’t talked about that you think are worth mentioning?

Richel: Yes, I, I think that an often overlooked, important step in a jury trial is the charge conference. So you have to know what your charge is going to be before it’s read to the jury. And if there is any dispute about that, you’re going to be paying attention to it from the first pretrial conference throughout the course of the case. So remember what the obligations are to point out any objections you have to the charge that’s ultimately approved by the court and to preserve those objections.

And remember that it’s hard to do that because the court is going to be pushing through the charge alone, behind the scenes while you’re trying the case. And usually, at the end of every day, well counsel, I’ve got some questions about the charge, and here’s my draft about it. And generally, that’s not recorded. So what you’re going to want to do is be prepared for your charge conference. Ideally, and of course, in the appellate world, appellate lawyers will always say get an appellate lawyer there to do that for you. My experience, most clients can’t afford that. And so you’re going to have to be both the trial lawyer and the appellate lawyer however, inopportune that may be.

So just be aware, be aware of the charge and preserving any objections to the charge. If you need to, you’ve never done it before, go in into the trial notebook and charge tab and have objections to charges already written out. So that you will have them and be sure that you say, Your Honor for the record, I need to watch my objections, and the judge will give you that of course. So you want to be sure to keep your record clean, about anything you don’t like about the charge.

Holly: So one last question. This is something I like to ask everybody who comes on the podcast. If you could give one piece of advice to young lawyers, what would it be?

Richel: Oh, my. Take care of yourself. This is very, very hard work we do. The kind of intimacy that we are invited to participate in is grueling. It’s a lot of time and a lot of effort and I think every lawyer from the beginning needs to learn how to tend to physical, mental, and emotional wellbeing. Physically, moderation in all things. Stand up. I sat down too long, stand up, get some exercise. Be careful about those 18 hour days, day after day. Give yourself some breaks. Mentally make sure that you understand the demands that are on you, and that you manage them well.

Know what your workflow is, manage in a way that doesn’t increase anxiety, but rather helps you alleviate anxiety. Be good to the people around you, they will help you. That will help your mental state of being day after day after day. When I say take care of yourself spiritually, I’m absolutely convinced that a successful life as a lawyer requires alignment between what you do and what your values are. You love what you do. If you love why you’re doing it, you know the importance of it you will feel the meaning and purpose in your life as a lawyer.

Holly: Well thank you so much for joining us today. And for any of our listeners, if you enjoyed today’s episode, please subscribe and leave us a review so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at

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