Motion to Equalize Peremptory Strikes in Texas

What Is a Motion to Equalize Peremptory Strikes?

Background

“Our rules generally permit each party in a civil action to exercise six peremptory strikes, which are challenges "made to a juror without assigning any reason therefor." (Davis v. Fisk Elec. Co. (2008) 268 S.W.3d 508, 510 quoting Tex. R. Civ. P. 232, 233.) But peremptories exercised for an improper reason, like race or gender, are unconstitutional.”

“A peremptory challenge, commonly referred to as a ‘strike,’ is defined by rule 232 as one ‘made to a juror without assigning any reason therefor.’” (Hyundai Motor Co. v. Vasquez (2006) 189 S.W.3d 743, 749.) “Peremptory challenges allow parties to reject jurors they perceive to be unsympathetic to their position.” (Id.) “The long-established practice of voir dire inquiry for use in exercising peremptory challenges acknowledges the subjectivity inherent in jury selection voir dire does not lend itself to formulaic management.” (Id.) As one authority has observed:

[T]he scope of the voir dire examination quite obviously can not be bounded by inflexible rules of thumb, for of all the delicate psychological factors inherent in a jury trial perhaps none is more essentially subjective and hence less submissive to dogmatic limitations.

(Hyundai Motor Co. v. Vasquez (2006) 189 S.W.3d 743, 750 citing 4 Roy W. McDonald Elaine A. Grafton Carlson, Texas Civil Practice, § 21:19 at 116 [2d ed. 2001].)

How to Structure the Motion

In a civil case tried in a district court, each party is entitled to six peremptory challenges. (Tex. R. Civ. P. 233.) If there are multiple parties, the trial court must decide before peremptory challenges are exercised whether the litigants aligned on the same side are antagonistic with respect to issues that will be submitted to the jury. (Id.)

If one of the litigants makes a motion before peremptory challenges are exercised, the trial court must “equalize the number of peremptory challenges so that no litigant or side is given an unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges.” (S. B. v. Tex. Dep't of Family & Protective Servs. (2017) No. 03-17-00431-CV, at *2.) Thus, the trial court must determine whether the litigants aligned on one side are antagonistic to each other as to fact issues for the jury; if not, it should give each side the same number of challenges. (Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex. 1986); Van Allen v. Blackledge (2000) 35 S.W.3d 61, 64.)

Antagonistic Parties

“Whether aligned parties are antagonistic to each other is a question of law that must be determined after voir dire and before the parties exercise their strikes, based upon information taken from the pleadings, pretrial discovery, voir dire, and other information brought to the court's attention.” (Garcia, 704 S.W.2d at 736-37; In re M.N.G. (2004) 147 S.W.3d 521, 531.) “If the record supports a conclusion of antagonism between parties on one side, the trial court must exercise its discretion and determine how to allocate strikes among the parties.” (Patterson Dental Co. v. Dunn (1979) 592 S.W.2d 914, 919; Moore v. Altra Energy Techs. (2010) Inc., 321 S.W.3d 727, 741.)

“The term ‘party’ in rule 233 is not synonymous with ‘litigant’ or ‘person.’ Rather, ‘party’ refers to a litigant or a group of litigants having essentially common interests.” (Perkins v. Freeman (1974) 518 S.W.2d 532, 533.) “Though their interests need not be completely identical, litigants on the same side of the docket are deemed to be a ‘party’ under the rule when their interests are not antagonistic in a matter in which the jury is to be concerned.” (Shell Chem. Co. v. Lamb (1973) 493 S.W.2d 742, 744.)

Allocation of Strikes and Multiple Litigants

The threshold question to be answered in allocating strikes when multiple litigants are involved on one side of a lawsuit is whether any of those litigants on the same side are antagonistic with respect to a question that the jury will decide. Where no antagonism exists, each side must receive the same number of strikes. (See Perkins v. Freeman, supra; Council v. Bankers Commercial Life Ins. Co. (1977) 558 S.W.2d 487, 489; Lipshy v. Lipshy (1975) 525 S.W.2d 222, 224; Roy L. Martin Assocs. v. Renfro (1972) 483 S.W.2d 845, 849; Retail Credit Co. v. Hyman (1968) 316 S.W.2d 769, 771.)

When antagonistic parties on the same side are required to share six strikes, it is error amounting to a violation of the basic right to trial by jury. (See Rivas v. Liberty Mut. Ins. Co. (1972) 480 S.W.2d 610, 612; Tamburello v. Welch (1965) 392 S.W.2d 114, 117.)

Antagonism and Multiple Litigants

“The antagonism must exist on an issue of fact that will be submitted to the jury, not on a matter that constitutes a pure question of law. Further, the antagonism must exist between litigants on the same side, vis-a-vis each other. Antagonism does not exist because of differing conflicts with the other side; e. g., when a plaintiff sues several defendants alleging different acts or omissions against each defendant. Antagonism would exist, however, if each of the defendants alleged that the fault of another defendant was the sole cause of plaintiff's damage.” (Shell Chem. Co. v. Lamb, supra ; Tamburello v. Welch, supra.) “The existence or non-existence of cross-actions or third-party actions is not determinative.” (Retail Credit Co. v. Hyman, supra ; See Tamburello v. Welch, supra [no cross-action, but antagonism existed]; Turner v. Turner (1964) 385 S.W.2d 230, 238 [cross-action filed but no antagonism on fact issue.])

“The existence of antagonism must be determined prior to the exercise of the strikes by the parties. The trial court must consider the pleadings, information disclosed by pretrial discovery, and other information brought to the attention of the trial court.” (Perkins v. Freeman, supra, at 534.) “Information and representations made during Voir dire of the jury panel also may be considered. Each case should be considered under the relevant circumstances. The existence of antagonism is not a matter within the trial court's discretion; it is a question of law whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue to be submitted to the jury.” (Patterson Dental Co. v. Dunn (1980) 592 S.W.2d 914, 918-19; see generally Sheehan Hollingsworth, Allocation of Peremptory Challenges Among Multiple Parties, 10 St. Mary's L.J. 511, 512-523 [1979].)

The Court’s Decision

“If [the appeals court] determines that the trial court erred in concluding that there was antagonism or in how it allocated the parties' peremptory challenges, [the reviewing court] must then determine, based on an examination of the entire record, whether that error resulted in a ‘materially unfair’ trial.” (S. B. v. Tex. Dep't of Family & Protective Servs. (2017) No. 03-17-00431-CV, at *2-3.)

"When the trial is hotly contested and the evidence sharply conflicting, the error results in a materially unfair trial without showing more." (Garcia, 704 S.W.2d at 737; see Lopez v. Foremost Paving, Inc. (1986) 709 S.W.2d 643, 644.) The court also considers the number of jury questions, whether the verdict was unanimous, and whether there was a motion for summary judgment or motion for instructed verdict. (Lopez, 709 S.W.2d at 645 [“[T]he fact that the jury was deadlocked at one point shows that the jury believed there was a sharp conflict in the evidence and that the trial was seriously contested.”]; S. B. v. Tex. Dep't of Family & Protective Servs. (2017) No. 03-17-00431-CV, at *2-3.)

Documents for Motion to Equalize Peremptory Strikes in Texas

Sort By

JETTEXAS OIL, LLC, et al vs. STEWART HOGE, et al document preview

MOTION & BRIEF FOR ORDER TO ENFORCE, SANCTIONS, AND TO ABATE - MOTION - MI…

145 pages

I 11/30/2023 5:17 PM FELICIA PITRE DISTRICT CLERK DALLAS …