Voir dire is my favorite part of a trial. It’s the beginning, which is always the most exciting part of any adventure. And it’s where you, as a trial lawyer, begin to get to know the jury panel, and they begin to get to know you and your client. Call it the courtship phase of the relationship. Both sides are trying to show the jury panel their best selves. After the trial is over and the jury has picked the winner, feelings may not be as warm. But in the beginning, both sides love the jury panel.

As a trial lawyer, I am always interested in case law that relates to voir dire, and this recent case from the Fort Worth court of appeals is no exception.

Texas rules give a party the right to demand a shuffle of the jury panel before voir dire begins. Tex. R. Civ. P. 223. But when does voir dire begin?

According to the Fort Worth court of appeals in BNSF Railway Co. v. Wipff, voir dire begins AFTER the jury panel is sworn in under Rule 226 (“You, and each of you, do solemnly swear that you will true answers give to all questions propounded to you concerning your qualifications as a juror, so help you God.”). Distinguishing an earlier case, the court held that voir dire does not begin when counsel reviews jury questionnaires.

Lessons for trial lawyers? For parties wanting a shuffle, (1) make your demand on the record, before the jury is sworn in under Rule 226; and (2) if your demand is denied, argue harm on the record—in other words, identify the objectionable jurors who were seated that you otherwise would have peremptorily struck.

For those resisting a shuffle, (1) make sure the Rule 226 swearing-in is on the record so that the party demanding a shuffle cannot later argue that, at the time of the demand, the swearing-in had not occurred; and (2) argue there was no harm from the lack of shuffle.