Evictions are a hassle. They’re expensive and time-consuming. But when your tenant requests a jury trial? Oh, snap…. An eviction by jury trial a whole different level of pain-in-my-neck (yes – I cleaned that up…).
Let’s get right to it: your best and least expensive option in this situation is to pursue settlement aggressively. Where settlement is not an option, you should seriously consider hiring my office to represent you in your eviction. But, of course I’m going to say that! But being the DIY kinda person you are, you want to learn about how to handle your own eviction by jury trial, right? Fair enough…. Let’s take a high-level look at how an eviction by jury trial works.
Why Would the State of Texas Even Permit Tenants to Request an Eviction by Jury Trial?
Even though you cannot hold, feel, or touch your right to be in possession of your home, possession of real estate is nonetheless a “property right.” And possession of real estate is a distinct property right than is title (ownership). For a government agent – like a Judge – to issue a ruling that takes away a defendant’s right to possession of real estate, the U.S. Constitution requires government agents to give defendants notice and hearing before issuing such a ruling. Texas procedural laws give tenants an opportunity to have these hearings ruled upon by a jury.
What Must a Tenant do to Obtain a Jury Trial?
Very little, I’m afraid. The tenant need only make a request for an eviction by jury trial in writing. He could do this on a bar napkin, if he chooses. The tenant must also pay the jury fee. This fee is presently only $22.00 in the Justice of the Peace Courts. Strangely, it is only $5.00 in the County Courts at Law. The only meaningful requirement imposed upon tenants is that they file their request for a jury trial no later than 14 days before the matter is originally set for trial. If the tenant is indigent, the tenant may request the Court to waive the jury fee. Courts are often very liberal in granting such requests for indigent tenants.
Bottom line – if your tenant wants a jury trial he is going to get it.
What is the Eviction by Jury Trial Process?
Not only have legal scholars written entire books on this topic, scholars have written many multi-volume books on this topic. The very best I can do is boil this topic down to some bite-size pieces and address some of the features that are unique to Justice of the Peace Jury Trials.
Creating the Venire
Shortly before the eviction by jury trial, the Justice of the Peace Court will issue jury summonses to several citizens who live within the Justice of the Peace Court’s precinct. Citizens are typically good about responding to a jury summons. The group of individuals whom the Court summoned for jury trial and who showed up for trial are, as a group, referred to as “the venire.” If, for some reason, the venire consists of less than 12 potential jurors on the day of the trial, the Judge will likely reset the trial date. Alternatively, the Judge may order the Constable to grab people off the street to serve on the jury panel. This process is called “summoning talesmen.” While I have never experienced a venire of less than 12, I would expect the judge to reset the trial as opposed to summoning talesmen.
Drawing the Jury
The Court will first “draw” the jury. This means the Court will place the venire in a specific order. This can be done buy use of software that creates a randomly ordered list of names. Alternatively, the Court may do this the old fashioned way: creating the list by pulling the veniremens’ names from a hat. After the Court draws the jury (technically, the court draws the “venire,” but in practice we still call this process “drawing the jury”), the Court will provide both you and your tenant with the list of veniremen. If neither you nor your tenant strikes any of the jurors from the list, the first six veniremen will be empaneled on your jury. Never do this.
Selecting the Jury – Voir Dire
You and your tenant must select six jurors. The Judge will not select the jury for you. You and your tenant have the right to question the venire to determine if they have prejudices or biases that may impact the case. This process is called voir dire. IT IS ARGUABLY THE MOST IMPORTANT STEP IN THE EVICTION BY JURY TRIAL PROCESS. Never just go with the first six veniremen. You need to know which probing questions to ask potential jurors. Not all questions are allowed.
You have the right to eliminate any of the veniremen if you can show they are sufficiently biased. Such venireman eliminations are called “challenges for cause.” Never overdo it with these challenges. Just because a venireman has been a tenant in the past does not mean he will be biased against landlords. Your Judge might agree to remove a venireman who admits to having sued a prior landlord. But the fact a venireman previously sued a landlord is not conclusive evidence of bias. Thirty years may have passed and that venireman may now be a landlord himself.
Imagine this process from the perspective of a venireman going through this process. You try, but fail, to remove that venireman for cause. How do you think he feels about you now? He is almost certainly biased against you. But you can’t use that bias as a basis to remove him. You created that bias. It’s a trap! Move to remove a venireman for cause ONLY IF you are certain the judge will grant your request.
You may also remove up to three jurors without cause. But this right can be restricted. For example, if you attempt to remove all the black or female veniremen, your tenant may challenge your strikes as being prejudicial.
Empaneling the Jury
On your list of veniremen which the Court provided you, you will identify the three (or fewer) veniremen you wish to remove without cause. Your tenant will do the same. The Judge will then review both of your lists. Of the veniremen who are left after both you and your tenant successfully cast your challenges, the Judge will empanel the first remaining six members of the venire. This will be your jury.
The Judge will then swear in the jury. Swearing in the jury officially begins your eviction by jury trial.
The Judge will instruct you to give the jury a short speech. Your opening statement is VERY important. There are certain topics that you absolutely must cover. Failing to cover the correct topics will result in complete chaos when the jurors go to deliberate your case. In an eviction by jury trial, a confused jury will almost always rule in favor of the tenant.
After you provide your opening statement, the Judge will give your tenant a chance to provide his opening statement. Your tenant will have the option of giving his opening statement after you present your evidence. Few tenants will know this, but Judges sometimes volunteer this detail to the tenant. Many defense attorneys believe there is a tactical advantage to presenting an opening statement after the plaintiff rests. I can’t say I agree. Don’t worry if your tenant waits to do his opening statement.
Landlord’s Presentation of Evidence
The Judge will ask you to first present evidence. There are certain documents you must present to the jury in every case. There are other documents that will help the jury tremendously, but that may not be a part of every eviction by jury trial. It is important that you present the documents in an order that the jury will understand the facts of the case. Typically, presenting your case chronologically is best. But it is amazingly difficult to explain a complicated sequence of facts to a group of people only once, and ensure they “get it.”
When you are presenting your case, you may also call witnesses.
Using effective witnesses to present your case establishes credibility. The jury won’t want to take only your word for it. But notice I say effective witnesses. Always be honest with yourself about whether a jury will be turned off by any of your witnesses. Your tenant will have an opportunity to cross-examine your witnesses. If any of your witnesses become too emotional or argumentative during your tenant’s cross-examination, you should use that witness only if you have no other option. Do you remember the Trump-Clinton Presidential Debates? Jurors generally do not like witnesses who interrupt the other party.
Do not use multiple witnesses to make the same point over and over. This tactic does not strengthen your case in any meaningful way. It just makes you look petty. If the tenant failed to maintain the lawn, give the jury a picture. Lining up three neighbors to testify about how the tenant failed to maintain the yard can be a big turn off for most jurors. Jury trials are long enough. This sort of thing is unnecessary, unhelpful, and drags out an already long process.
Defendant’s Presentation of Evidence
Defendants will often show up to court with only one copy of each document they intend to present as evidence. Courts will not make photocopies for either party. I like creating advantage by having 10 copies of everything I am going to present. One for me, one for the tenant, one for the witness, one for the Judge, and one for each of the six jurors. This makes me look organized. It also makes the tenant look as they he isn’t taking the trial seriously.
Your tenant has the exact same rights as you do when it comes to presenting documents to the jury. Same for calling witnesses. You may cross-examine any witnesses the tenant may call after the tenant finishes.
Justice Courts can be very informal. Their informality can sometimes extend to an eviction by jury trial. Justices of the Peace will often permit the tenant to start making their case from the defendant’ desk, and not from the witness stand. It is important to understand that after tenant has given his opening statement, any statements he makes about the case are testimony. You need to object if your tenant does this. And tenants do it a lot.
Just as you did when your tenant has finished presenting his case, your tenant must tell the Judge that he “rests.”
The closing statement is also extremely important. Just as there are certain things you need to address in your opening statement, there are very specific items you must cover in your closing statement. There is no legal requirement that you cover these items. There are, instead, practical ones. While you do want to spend a minute or two summarizing the case, you want to make that summary very short. Judges will often impose time limitations on your closing statement during the eviction by jury trial. You need to make the most of this time. Much of what I say during my closing statement involves coaching the jury on how to approach the case. This is because of the “jury questions” phenomenon in Justice of the Peace Courts.
Justice of the Peace courts do not permit jury questions in evictions by jury trial. Jury questions are a set of questions that lead the jury through the decision-making process. The question your jury must answer is, “Does the landlord have the superior right of possession?” But that question is the ultimate question the jury must reach. To get to that ultimate question, the jury must first answer several other questions. For example, in a non-payment of rent trial that involves a written lease agreement, the jury must answer the following questions before reaching that ultimate question:
- Does the landlord own the subject property?
- Do the parties have an enforceable lease agreement?
- Does the parties’ lease agreement give the tenant possession of the subject property?
- Did the tenant breach the parties’ lease agreement by not paying rent last month?
- Was the notice to vacate delivered to the tenant in accordance with state law?
- Did the landlord wait the required amount of time before filing this lawsuit?
- Does the landlord have the superior right of possession? (Ultimate question)
In your closing statement, you must not only coach the jury into answering a sequence of questions that logically lead them to the ultimate question, you must also convince them that these are the questions they need to be answering. Of course, the facts of your case may require a different set of questions. But the ultimate question in every eviction by jury trial will be the one stated above.
If you have done your job well and there are no meaningful fact issues in your case, the jury will not deliberate very long. I mentioned jury selection (voir dire) was arguably the most important step in the trial process. The jury deliberation phase is where handling voir dire well will pay off. Select the wrong jurors, the jury will likely deliberate for hours. Fail to educate the jury on which questions they must answer and how to answer those questions, you will have the same result but for different reasons. Jurors will take forever to deliberate because they will not understand what they are supposed to do.
Always remain poker-faced when the verdict is read. As a property investor in this community, there is an excellent chance you will go before this Justice of the Peace again. You do not want her to remember you as a sore loser or an undignified winner.
Regardless of how justified you may feel about winning, members of the jury often find these cases quite traumatic. I recently won a jury trial against a painfully obnoxious woman. She is married to an aging, meek Korean war veteran. The husband was much older than she. The entire conflict in that case arose mainly from the wife’s painfully big mouth and her nasty, hateful behavior. The jury seemed happy to evict her. But the husband…. That was tough. It was tough for me. My team and I walked out of that small courthouse about 20 minutes after the trial was over. We came upon one of the jurors who was sitting in her car bawling her eyes out. You’re likely angry at your tenant. It’s important to remember your jurors will not be. Never underestimate how difficult this experience will be for the jury.
Do not be surprised if the jury does something like awarding you possession, but not awarding back rent. It’s extremely difficult to get six people to agree on much of anything. When jurors end up deliberating, they often end up negotiating to reach a final verdict. “Splitting the baby” is a common solution in an eviction by jury trial. Those for the landlord will often agree to eliminating rent damages if those against the tenant agree to give the landlord possession.
The Take Away
Jury trials are complicated. The fact you are facing one in a Justice of the Peace Court does not make it uncomplicated.
Handling your own eviction by jury trial will take up a tremendous amount of your time. You must learn which vior dire questions you should ask, and educate yourself on which you are not allowed to ask. You need to prepare your documentary evidence. And part of this task will involve preparing the correct number of copies and labeling everything properly. You will need to draft your opening and closing statements and practice them. You will need to identify the questions your jury must answer to reach that ultimate question.
Never fall into the trap of fanaticizing about your jury trial. TV court dramas often exclude many of the less exciting steps of the jury trial process. Strangely, some of these steps – voir dire in particular – are among the most important.
While this article provides you some great information on an eviction by jury trial, I’m not about to give you my secret sauce!
Why You Should Hire Girling Law for Your Eviction Trial by Jury (a Shameless Plug)
If your tenant has legal representation, you should never attempt to represent yourself in a jury trial. You’re probably a very smart individual. But your intelligence has little to do with winning a jury trial. Lawyers are trained in this stuff. By hiring Girling Law, you are making use of a law firm that routinely handles eviction trials by jury in Justice of the Peace courts. We are familiar with the strange rules that apply only to these courts. This often gives us a unique advantage over other attorneys.
If your tenant is representing himself, you should still consider hiring us. Often tenants will fall into that trap of fantasizing about their eviction by jury trial. Girling Law will work to undermine these expectations by muzzling the tenant during the trial process. This starts by calling your tenant as a witness. The examination process in the presence of a jury is typically quite frustrating for tenants. After we ask a series of difficult questions and the tenant grapples with providing some rather awkward answers, tenants often find the trial experience disappointing. Sometimes they may feel quite humiliated. Our goal is to show your tenant that appealing to a County Court and having a second jury trial is a really bad idea.
Most importantly, Girling Law maintains special resources just for an eviction by jury trial. Most law firms enjoy a full year a half to prepare for their jury trials. Girling law has developed its own library of resources just for an eviction trial by jury. These tools enable us to quickly assemble the materials we need for your trial. In a pinch, Girling Law can be eviction jury trial-ready within 48 hours.