Dallas Fort Worth Insurance Lawyer Blog

There are two important phases at the end of a trial – the jury charge and the closing statement.

Most courts will not approve a jury charge until after the close of all evidence.  Therefore, the charge conference will often take place once a jury has been dismissed for the day or prior to the time that a jury reports for the day.  Lawyers should have the pattern jury charges on hand during the charge conference as well as copies of their proposed charge.  Experience lawyers will also have a template of prior jury charges to help expedite the matter.

I.  Cause of Action – Each cause of action pled by the plaintiff should be the subject of a jury question.  The trend in recent years is for each respective side to produce a proposed jury charge as part of a Joint Pretrial Order.  In the event any changes need to be made, a party may submit an amended jury charge.  Regardless, the most recent jury charge on file is the one that will be taken up in the conference.  Lawyers should be prepared to argue all aspects of the jury charge.  While most jury instructions are form submissions, some jury questions require special instructions, which should be listed prior to the question.  For large cases, have an appeals attorney to consult is wise.

First party insurance cases are unique.  Filing complaints with the Texas Department of Insurance is usually a waste of time unless the complaint has something to do with a criminal act on the part of the insurance company.  The Texas Insurance Code, Chapters 541 and 542, among others are helpful.

But if no other recourse works and an insured has to hire a lawyer, file a lawsuit, and try the case, witnesses make a big difference in the outcome.

The most effective trial attorneys do not waste time badgering witnesses or asking irrelevant questions to set up their points.  Counsel should know the case inside and out and be prepared with the key points you need from each witness.  Having a working knowledge of the exhibits and deposition testimony in the event you need to impeach a witness is imperative.  Further, it is important to keep the potential jury charge in mind when determining the points to discuss with each witness.  When examining a witness or expert from out of town, counsel should plan to have them on call and prepared.  An out of town witness should arrive a day prior to their testimony to ensure there are no issues with travel and that there is time to go over testimony in a controlled setting.  Scrambling to rearrange witnesses due to delay can negatively affect the way the case is presented.

Experienced Insurance Law Attorneys will try their fair share of cases.  Maybe they will average 1 to as many as three a year.  Knowing the Chapter 541 and Chapter 542 of the Texas Insurance Code are vital to going after insurance companies for wrongs they have committed.  Resourcing the Texas Department of Insurance is also important.  When the day comes to stand in front of a jury and present your client’s case it is important to know how to talk to a jury.

The opening statement in a first-party insurance case provides an opportunity to educate the jury on the policy language and give the jurors an idea of how badly the plaintiff’s property was damaged and how badly the insurance company handled the claim.  This provides the last opportunity until the closing statement to speak directly with the jury.  Most judges allow 30 minutes to an hour to do the opening statement based on the complexity of the case.  Of course, some courts allow as little as ten minutes.  Counsel should avoid making a simple case more complex than it is, and use the time as efficiently as possible.

I.  Tell the Story –  The opening statement is the plaintiff’s chance to tell the story from the client’s perspective and talk to the jury about what happened.  As previously stated, jurors are significantly more likely to remember things they see as opposed to what they hear.  Therefore, the use of demonstrative exhibits or photographs is extremely beneficial.  Lawyers should also devote some time to provide a preview of the other evidence and testimony the jurors will hear during your case in chief.  Of note, the majority of jurors will never have been on a jury before and will likely not know anything about an insurance policy or the terms involved.  Therefore, counsel should take time to go over some of the more common terms and issues that will come up over the course of the trial.  Last, but not least, the most effective opening statements are concise, interesting, and informative, and not overly long.

An insurance law attorney can know Texas Insurance Code, Chapter 541 and 542 and any other statute that apply but when it comes to trying an insurance case, they need to know how to pick a jury.

Most lawyers agree that a case is won or lost during the jury selection process.  Unfortunately, the jury panel composition is unpredictable.  Further, some things are simply out of the lawyer’s control, like the amount of time  a Judge allows for jury selection, otherwise known as voir dire.  Efficient and intelligent use of time and resources during this portion of the case will always provide a positive return.  The more eyes and ears paying attention during voir dire the better.  Jury consultants can be expensive and should be considered on a case by case basis.

I.  Jury Lists – Some courts will allow the lawyers to preview a list of jurors well in advance of voir dire.  The normal practice however, is to provide the lawyers with a list an hour or two before starting.  It is not possible to know everything about a potential juror based on a half-page or full-page questionnaire, so attorneys should be looking at key indicators that may hurt or help the case.  Perhaps someone on the jury panel works in the insurance industry or has a special relationship with the defendant or their attorney.  The purpose of voir dire should be to remove jurors from the panel that will be harmful to the case.  To the extent the lawyer has hired a jury consultant, he or she should already have identified certain factors to flag when considering who will serve on the jury and who to strike.  When requesting the number of individuals needed for a jury panel, consider the venue, facts of the case, and whether the case is pending in county or district court.  Busted jury panels are less likely in first-party cases, so a pool of 50 jurors is typically more than enough.

Exhibits for a trial in a first-party insurance case need to be well thought out and planned.

Almost all courts require the attorneys to attend a pre-trial conference for the purpose of admitting or making rulings on proposed exhibits.  Most exhibits are agreed or ruled upon by the Judge at these pre-trial hearings.  Having these exhibits admitted before trial helps the respective lawyers prepare their questions and arguments with these exhibits in mind.

Here are a few thoughts to keep in mind as it relates to trial exhibits.