So you are a party to a new civil litigation case, which means you have either sued someone or just been sued.  Your lawyer sends you an email that the Court has just set your case for a non-jury trial for a date in the future.  In the same email, your lawyer asks if you want to pay the jury fee, which usually is nominal, and have the matter set for jury trial, or whether you prefer to have the case remain as a non-jury trial.  It is, after all, the client’s decision on whether to have a jury trial or a non-jury trial.  What do you do?

Both types of trials – jury and non-jury – have advantages and disadvantages.  A non-jury trial, also known as a bench trial or a trial before the Judge, generally is more informal than a jury trial,  shorter than a jury trial, and less expensive to prepare for and conduct.   For example, in a non-jury trial, the lawyers do not have to draft a jury charge (the questions the jury will answer, such as who was responsible for the accident, and the percentage of responsibility each party), or have a “charge conference” with the Judge where each side argues that its proposed jury questions should be included in the jury charge.  The charge conference is conducted outside of the presence of the jury, and can last from several hours to an entire day or more, depending on the case.  After the jury charge is finalized, the Judge will read the jury charge to the jury, the lawyers will make closing arguments, and then the jury will retire to the jury room to deliberate.

None of these time-consuming jury charge issues are present in a bench trial.  However, one of the disadvantages of a non-jury trial is that one person – the Judge – hears all the evidence, weighs the credibility of the witnesses, decides which facts are true and not true, rules on evidentiary issues and objections, applies the law to the facts, decides who should win, and the amount of damages awarded, if any.  In a jury trial, the jury hears the evidence, weighs the credibility of the witnesses, decides which facts are true and which are not, decides who should win, and whether any damages should be awarded.  In a jury trial, the Judge’s role is to preside over the trial, rule on evidentiary objections, and apply the law to the facts after the jury has answered the questions on a jury charge – but in most cases, the Judge does get to decide by his-or-herself which party should win.

There are lots of other issues to be considered in deciding whether to have a jury trial or a non-jury trial.  Additionally, a litigant does not always have a choice regarding which type of trial.  We will discuss the additional factors in upcoming posts in this series.

I have been writing on this blog about how Dallas County juries have shifted over the years from pro-defense to pro-plaintiff, or at least to a point where most prospective jurors in Dallas County don’t necessarily consider lawsuits a bad thing.  In the era of tort reform, this attitude among prospective jurors in Dallas County is very interesting.  My previous posts are here, here, and here.

But why do we care about juries anyway?  There are the constitutional reasons, and the traditions in our legal system that are tied inextricably to the jury trial process.  There are the defenders of the jury trial as the last line of defense against oppression.  And these are good reasons to care about the juries.

But my focus on why juries matter is more practical.  In Texas, juries matter because once a jury renders a verdict it is extraordinarily rare for the jury’s verdict to be overturned.  It happens, but not very often.  This is because legal and factual sufficiency challenges to a jury verdict are judged against very high standards.

The Dallas Court of Appeals just released a decision in Adams v. Bellas affirming a jury verdict where the court went through the standards for legal and factual sufficiency challenges to a jury verdict.

To overturn a jury verdict on legal sufficiency grounds, the court must first credit any evidence favoring the jury verdict if reasonable jurors could disregard contrary evidence if reasonable jurors could not.  If more than a scintilla of evidence supports the jury’s verdict, then the court has to uphold the verdict.  There is no weighing of the evidence on one side or the other.  The court simply looks at whether there is some evidence that would “enable reasonable and fair-minded people to reach the verdict under review.”

To overturn a jury verdict on factual sufficiency grounds, the jury’s verdict must be against the great weigh and preponderance of the evidence.  This means that the jury verdict will be set aside “only if it is so contrary to the overwhelming weigh of the evidence as to be clearly wrong and manifestly unjust.”

Taken together, the high standards for legal and factual sufficiency protect the philosophical value that we place on the role of the jury in our legal system. We have assigned the jury the role of weighing the evidence and resolving any conflicts or inconsistencies in the evidence.  We then shield the jury’s verdict from second-guessing by creating high standards for overturning the jury’s verdict.

So why do juries matter?  Because under our system, once the jury delivers its verdict it is procedurally and practically very difficult to overturn the verdict.  Oh, and also for all those constitutional reasons and tightly-held traditions long associated with our legal system.

Previously I posted about Dallas County juries here and hereLast week a federal jury ordered Johnson & Johnson to pay $1.041 billion to six plaintiffs who received defectively-designed hip implants.   Of the total verdict, $32 million was for compensatory damages, and the rest was for punitive damages. The federal jury that ordered Johnson & Johnson to pay a billion dollars was made up of jurors from the Northern District of Texas, which includes more than just Dallas County.  But Dallas County is the largest county in the Northern District of Texas, and I believe that the jury’s verdict is further proof that Dallas County jurors believe that civil lawsuits are an appropriate way to monitor and police large corporations.

When I first started practicing law in Dallas in the early 1990s, the prevailing sense around the campfire was that Dallas County was a pro-defense venue.  Over the years there have been some huge verdicts out of Dallas County in business disputes and commercial matters, but it seemed to most observers that personal injury plaintiffs did not fair as well in Dallas County.  In my earlier posts I gave my two-cent opinion that Dallas County was no longer pro-defense, or even neutral, because of the increasing frequency of eye-popping verdicts in personal injury cases.  In September, Bloom Strategic Consulting published a report of a survey that it conducted of 1000 prospective Dallas County jurors.  I wrote about the survey’s results in my first post about Dallas County jurors, and I believe that this report should be required reading for any lawyer with a case pending in Dallas County.  Based on what I have been seeing lately, I think that Dallas County is pro-plaintiff.

For Johnson & Johnson, I expect that the federal judge will reduce the punitive damages award to confirm with Texas’ cap on punitive damages, especially considering that the award of compensatory damages ($32 million) is approximately three percent of the overall verdict.  However, the fact that Johnson & Johnson may never have to pay a billion dollars to the plaintiffs from last week’s verdict should not be confused with the message that the jury seemed to send to Johnson & Johnson, and what that message says about Dallas County juries.

I recently had a trial that caused me to think long and hard about what is the best evidence at trial.  I concluded that documents, photos and videos beat witness testimony hands down. I believe that a case built around documentary evidence is stronger than a case build on witness testimony.

I think the reason is simple.  With documentary evidence, jurors can look at documents and form their own opinions about what the documents say and mean.  Jurors are savvy enough nowadays to suspect that the lawyers in the case will try to bamboozle the jurors into concluding that the documents say something that the documents don’t say.  If the jurors’ conclusions about the documents are consistent with the trial lawyer’s arguments, the jurors will form other conclusions consistent with the trial lawyer’s argument.  If the jurors’ conclusions about the documents conflict with the trial lawyer’s arguments, then the jurors will conclude that the lawyer is trying to trick them and they will be suspicious of the lawyer for the rest of the trial. I believe that jurors form conclusions about the documents, photos, and videos in the case, and then evaluate the witnesses and lawyers against those conclusions.

Witness testimony is inherently unreliable.  Countless studies show that two witnesses can view the exact same incident and come away with two different versions of what happened.  Jurors already know this.  Neither witness is lying, but unlike documentary evidence that does not change, inconsistency in witness testimony means that the jurors will have to decide which witnesses’ testimony is consistent with the jurors’ own perceptions of what happened.  Also, witnesses are subject to cross examination.  If the jurors trust the lawyer, then an effective cross examination can be brutal.  If the jurors do not trust the lawyer, then cross examination can generate juror sympathy for the witness.  Witness testimony comes to the jurors through the questions and answers provided by the lawyers and the witnesses.  In the end jurors have to evaluate the witnesses’ testimony against other witnesses, the lawyers, and the jurors’ conclusions drawn directly from the documents.

Documents, photos and videos that are entered into evidence go back to the jury room and jurors are encouraged to review all the evidence during deliberations.  Live testimony depends on the ability of the jurors to recall what was said among several witnesses and at times several days ago.  Like everyone else, two jurors may not remember the testimony the same way, and now the jurors must resolve the their own  inconsistent memories.  I believe that instead of resolving these inconsistencies, jurors tend to focus on the documentary evidence that they have with them in the jury room.

So back to my recent trial.  In that case, there were emails that on their face were not good for my client’s case.  We knew that we could explain our side of the emails, and we had great witnesses to do just that.  The other side had witnesses who testified consistently with the emails.  After the trial the judge permitted us to talk to the jurors.  All 12 of the jurors told us that they liked our witnesses, but that the jurors felt that the emails told the story.  There was no mention of the other side’s witnesses.  Our witnesses were good, but not good enough to overcome the jurors’ conclusions about the emails.

What is the best evidence at trial?  Documents.  Jurors can touch them, look at them, and reach their own conclusions about them.

I recently posted about the recent survey of prospective Dallas County jurors’ opinions and beliefs here.  Based on the survey’s results and my own observations, I felt that Dallas County had changed from neutral to plaintiff-friendly in terms of likely jury panels.  Assuming that blue leans more plaintiff-friendly, the recent election results support my conclusion.  Dallas County voted for Hillary Clinton over Donald Trump by a margin of 61% to 35%. By comparison, Collin County went in favor of Trump, 56% to 39%. Tarrant County went for Trump, 52% to 43%. Also around Texas, Bexar (San Antonio), Travis (Austin), and Harris (Houston) Counties all went blue, as did the counties in the Rio Grande Valley.  But overall, Texas was predictably red, with the exceptions of the larger metropolitan areas and the counties on the border with Mexico.