A Custom Fit: Tailoring Texas Civil Jury Selection Procedures to Case Tiers

Abstract

This Article, entitled A Custom Fit: Tailoring Texas Civil Jury Selection Procedures to Case Tiers, advocates for changes to current Texas state civil jury selection laws. The Article contends that Texas civil jury selection procedures would benefit from a tiered approach that provides different jury selection rules depending on the nature of the case, the complexity of the case, and the amount in controversy. Under current law, each party to a civil case receives six peremptory challenges in a state district court case. This is a large amount of peremptory challenges and has led to considerable Batson problems in Texas vis-à-vis other states, a lack of fairness to litigants and prospective jurors, and inefficiencies in the Texas civil jury selection system. See Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 2008). The Article calls for the elimination of peremptory challenges in Texas civil cases where the amount in controversy is low (relatively speaking); a presumption against the use of peremptory challenges for most civil cases that can be overcome through case-specific evidence but that still ultimately yields a reduced number of peremptory challenges than current law permits; and a new procedure that would allow judges considerable freedom to specially tailor jury selection procedures in complex civil cases. As part of this tailoring in complex civil cases, Texas law would allow for the creation of “expert juries” in which the experience and knowledge-base of particular prospective jurors is carefully matched to jury service on individual cases.

Keywords: jury selection, voir dire, peremptory challenges, expert juries, civil cases, fair cross-section

JEL Classification: K40, K41