Extracted from Law360
The civil jury trial is changing. Jurors in Texas, as in other parts of the country, are becoming increasingly involved during trials by submitting written questions for the judge or attorneys to ask witnesses.
Given the latest trends, civil trial attorneys in Texas must be prepared to adapt and present their cases with increasing involvement from the jury.
Earlier this month, a jury of Texas senators acquitted Ken Paxton on 16 counts of impeachment — but observers have questioned whether the outcome may have been affected if the jurors had the opportunity to ask questions of their own during the trial.
While we are unlikely to learn much about any lingering questions in the jurors' minds, the broader conversation around this type of juror involvement — which was once the exception — is intensifying. It has the potential to affect every stage of trial, from jury selection through closing arguments.
In this article, we examine the history of juror questions in Texas, and call on our experience to outline best practices for avoiding potential pitfalls at trial and beyond.
The Evolution of Juror Questions: Disrupting the Adversary Process or Good Common Sense?
Courts in Texas and elsewhere in the Fifth Circuit have been at the forefront of encouraging the use of juror questions in civil cases.
In 1979 — nearly three decades before the American Bar Association first endorsed the practice in 2005 — the U.S. Court of Appeals for the Fifth Circuit noted in U.S. v. Callaghan that "[i]f a juror is unclear as to a point in the proof, it makes good common sense to allow a question to be asked about it. … Trials exist to develop truth."
This holding was officially adopted by the Texas Court of Appeals in Houston in 1992 in Fazzino v. Guido, a case of first impression in a civil cause of action in Texas, holding that "with [the] proper procedural safeguards, there was no harm to [the] appellant" in allowing juror questions at trial.
Five years later, the Texas Court of Appeals in Dallas affirmed the propriety of juror questions in civil cases in Hudson v. Markum, a case involving 664 written questions by jurors — 504 of which were submitted directly to various witnesses.
Today, Texas is one of 40 states that encourage and permit courts to allow juror questions in civil cases. While trial attorneys have seen an uptick in individual Texas courts allowing the use of juror questions in civil cases, there is little case law establishing the permissible parameters for doing so.
Indeed, since the Houston and Dallas courts of appeals issued their decisions in the 1990s, only one other court has spoken directly to the issue of permissibility of juror questions in civil trials. In 2019, the Texas Court of Appeals in Waco held in In re: Interest of J.T. that juror involvement was inappropriate in cases implicating fundamental liberty interests.
The dearth of guiding case law, coupled with the absence of any guidance from the Texas Office of Court Administration on the issue, has led to varying results and usages of juror questions in Texas state and federal courts — even within the same jurisdiction.
For instance, in the U.S. District Court for the Eastern District of Texas, U.S. District Judge Rodney Gilstrap has held to a bright-line rule against allowing juror questions, while U.S. District Judge Amos Mazzant was one of the first advocates and staunch supporters of the practice.
Best Practices: Be Prepared and Plan Ahead
Judges have broad discretion in courtroom management, including determining the process for juror questions. But that doesn't mean that trial attorneys should automatically agree to any method suggested.
Instead, this evolving area of trial procedure necessitates careful forethought and strategic planning from civil trial attorneys in Texas. They should be prepared to argue for the needs of each individual case during the pretrial conference.
The approach to juror questions should not be thought of as one-size-fits-all. For instance, in cases where individual witnesses have discrete subsections of knowledge, attorneys may be best served by suggesting a procedure that allows the parties to review jurors' written questions after the witness is dismissed, to preserve witness credibility.
This strategic choice allows attorneys to gauge areas of interest or confusion for the jury, and incorporate the relevant information into their case presentation, without putting a witness who doesn't have adequate background knowledge to answer the questions in a potentially uncomfortable situation.
In other situations, parties may prefer that the jurors' questions be asked directly to the witnesses once attorney examinations have concluded, but may have a preference for who — the attorney or the judge — reads the questions to the witness.
Another important consideration is whether a case involves sensitive or divisive fact patterns. In such a case, attorneys may want to request ultimate veto authority over questions posed — regardless of whether there is an evidentiary basis for an objection — and may want a judge to exercise this same type of authority as well.
But the trial testimony isn't the only juncture where attorneys need to be mindful of their approach. Attorneys who know that a judge will allow juror questions need to take this into consideration in preparing for voir dire, and when engaging in settlement discussions.
Potential jurors who fall on the shy side during jury selection are often thought to be unobtrusive or rarely given much consideration at all by attorneys when exercising their strikes. However, since juror questions are typically in written form, attorneys should consider the use of a juror questionnaire in connection with jury selection, to gain insight into a potential juror's written communication skills and their willingness to engage in writing, as opposed to speaking.
Moreover, juror questions may also influence midtrial settlement negotiations. If a party feels that the jury is homing in on an area of the case that is especially strong for them — or a known weakness — they may be more, or less, likely to settle based on this result. Juror questions can also inadvertently expose case vulnerabilities or seem to indicate jurors' leanings midtrial.
A Word of Caution: Ultimately, Responsibility and Strategy Still Belong to the Attorney
Finding the balance between the jurors' interests and the long-thought-out trial plan is key. While attorneys in all trials should maintain a level of adaptability as the evidence unfolds, they should remain cautious of completely throwing out the playbook based on what they believe to be the jurors' concerns.
It is especially important to remember that juror questions will likely be anonymous — meaning that all could be coming from only one or two jurors, and may not reflect the leanings of the entire jury. Still, attorneys do benefit from paying attention to what the jury thinks is important, what they may be confused about and areas of the case where they have outstanding questions.
Attorneys who can strike the balance between pretrial preparation and spur-of-the-moment adaptability will be most successful in cases involving juror questions. Although this area of the law remains somewhat unsettled, what is clear is that in civil and criminal cases, the failure to timely object to a juror's question waives the right to challenge that question and information elicited on appeal.
Attorneys need to remain as vigilant in their objections to jurors' questions as they would to opposing counsel's questions. When considering each potential juror question, attorneys — especially those with ultimate veto power — must take a broader approach than only considering proper objections under the Texas Rules of Evidence.
They also need to focus not just on potential prejudice to their clients, but also on greater case implications. At the trial level, this might involve, for instance, questions that could open the door to problematic areas of inquiry, especially topics that have been previously excluded during in limine rulings.
At the appellate level, it may be important to ensure that questions do not implicate fundamental liberty interests. If a juror question does implicate either of those situations, the attorney must immediately object — and to the extent the question will be asked to a witness, receive a ruling on the record — to avoid waiving the issue.
Looking Ahead: Potential Appellate Issues on the Horizon
As this area of law continues to evolve, we anticipate possible appeals related to the bounds of judicial discretion in the procedure for allowing juror questions at trial.
We also expect to see cases raising objections to juror questions at trial — or the failure to object — and what is needed to preserve issues for appeal, as well as ineffective assistance of counsel claims related to the failure to object to impermissible or prejudicial juror questions.
Texas courts may also opine on additional types of civil cases where juror questions are per se impermissible outside the area of termination of parental rights.
 U.S. v. Callaghan , 588 F.2d 1078, 1086 (5th Cir. 1979).
 Fazzino v. Guido , 836 S.W.2d 271, 276 (Tex. App. – Houston [1st] 1992, writ denied).
 Hudson v. Markum , 948 S.W.2d 1 (Tex. App. – Dallas 1997, writ denied).
 In re: Interest of J.T. , 594 S.W. 3d 782, 783-84 (Tex. App. – Waco 2019, no pet.); see also 2 Tex. Fam. Law. Prac. & Proc. E6.03.
 See, e.g., Geoffrion v. Nationstar Mortgage LLC , 182 F.Supp. 3d 648, 674 n.17 (E.D. Tex. 2016) (J. Mazzant); "Letting Jurors Ask Questions Divides Judges," The Texas Lawbook, Sept. 2, 2022, available at https://texaslawbook.net/letting-jurors-ask-questions-divides-judges/.
 Wolfe v. State , No. 11-15-00004-CR, 2017 Tex. App. LEXIS 246, at *11-12 (Tex. App. – Eastland Jan. 12, 2017).