Attorneys throughout the United States will tell you it’s important to know the rules of each court in which you practice. And the Eastern District of Texas is no different. In fact, the EDTX can be a little tricky if you are a litigator wanting to conduct jury research (mock trial, focus group, etc.), or doing a little internet research for members of the venire panel. There are rules. And they vary from judge to judge, and from division to division.
The EDTX is comprised of six divisions: Sherman, Texarkana, Marshall, Tyler, Lufkin and Beaumont. To date, the only division without standing orders on these issues is the Sherman Division.
So what do you need to know about the rules in the remaining divisions? It gets a little complicated, so here’s a quick cheat sheet.
Chief District Judge Ron Clark
This order was issued way back in 2010 by Chief District Judge Clark. If you have a matter pending in his court — whether it be the Beaumont or Lufkin Division — read this. In a nutshell, RC47 requires the following:
- You must notify the Court in camera if you will or “likely will” conduct pretrial jury research. Meaning? No last-minute super-secret research. Plan ahead. And notify the Court. Because you must provide notice at least one month before the final pretrial conference, the research must be completed by that date as well.
- Retain the names and addresses of each juror participant because you are required to provide that information to the Court in camera 10 days prior to the final pretrial conference.
District Judge Rodney Gilstrap
Judge Gilstrap has two critical standing orders. The first was issued back in February 2012 and pertains to pretrial jury research (mock trials/focus groups). The second was recently issued and pertains to internet and social media research.
Unlike Chief District Judge Clark’s order, Judge Gilstrap’s standing order on mock jury research does not require counsel to provide advance notice to the Court prior to conducting the research. It does, however, have different rules for what must occur after the jury research is complete.
- No later than 10 days before the final pretrial conference, counsel is required to provide written notice of such research to the Court and opposing counsel.
- Once the list of potential jurors has been distributed to the parties, counsel is required to cross-reference the list against the names and addresses of those residents who participated in the jury research. If there is any cross-over, you must report this to all parties and the Court. (This should occur no matter what venue you’re in!)
- Before jury selection begins, counsel must provide the Court in camera a list with the name and address for each jury research participant.
- This order is in effect for any case in Judge Gilstrap’s court, whether it originated there or not. If the matter lands in front of him for whatever reason, the order applies.
On January 25, 2017, Judge Gilstrap issued a new standing order related to internet and social media research on prospective jurors. In general, this order simply reiterates the ABA ethical guidelines and the Texas Disciplinary Rules of Professional Conduct. It’s worth noting that the order applies not only to counsel, but to “respective employees and agents, including jury consultants.” Even if you pass the task onto someone else, you are bound to the order.
Judge John Love
On January 17, 2017 Judge Love issued his own standing order regarding pretrial jury research. His order is oh-so-slightly different than the others.
- At least 7 days before trial, counsel must provide written notice to opposing counsel and the Court that pretrial jury research has occurred.
- Once the list of venire members has been shared with the parties, counsel must cross-reference the potential jurors with the participants of the jury research. (Again, wise practice in any venue.) If there are any mock jurors in the venire, counsel is required to notify opposing counsel and the Court.
- Before jury selection begins, counsel must provide the name and address of each jury research participant — whether on the jury list or not — to the Court in camera.
Magistrate Judge Roy Payne
If you’ve got a matter in front of Judge Payne, you’ll need to follow Judge Gilstrap’s order on mock jury research. His standing order applies to matters in front of Judge Payne, too. (See above for highlights.)
Judge Robert Schroeder
Judge Schroeder issued a standing order in January 2016 regarding pretrial jury research. His order essentially mirrors that of Judge Gilstrap. (See above for highlights.)
That’s a lot to digest. It may seem intrusive, but there are reasons these standing orders exist. In our next blog, we’ll address a few of the reasons and offer some suggestions for ensuring that you comply accordingly. In the meantime, if you have any questions or comments, please drop us a line at firstname.lastname@example.org!