Texas Badge

Texas Dram Shop Litigation Strategy: Trial

When most people think of lawsuits, they immediately picture a trial. The truth is that in Texas dram shop cases, as well as nearly any other civil litigation, the vast majority of lawsuits are resolved before they ever get to trial. Why then are trials what people most associate with the legal process if so few disputes ever result in a trial?

Part of the answer certainly lies in the fact that trials are the most dramatic part of legal work. The adversarial nature of our system, pitting two sides in a dispute against one another to determine who shall prevail, has built in conflict, conflict the entertainment industry has taken great advantage of. In fact, juries listening to evidence and arguments as part of a process of coming to a decision mirrors the relationship between a television or movie viewer watching a fictional trial.

Another appeal of trials is that they afford the victim and the accused their day in court. While that may sound cliché, on its most basic level, the ability for someone to argue their cause before a jury of their peers is perhaps the most fundamental freedom of representative government. The freedom to have a dispute settled by a jury has such a long tradition in Anglo-American common law that it is enshrined in the Magna Carta, which was agreed to in 1215.

While 800 years ago they could not have dreamed of of either Texas or dram shop cases, the same trial by jury is how a Texas dram shop case is settled, absent a negotiated settlement. Even if trials do not actually come about in the vast majority of dram shop cases, that does not mean that the shadow of a trial does not hang over the whole litigation process.

In this article, one of Dallas' most experienced dram shop attorneys, Michael Grossman explains how trials work in Texas dram shop cases.


Questions answered on this page:

  • How do trials work in Texas dram shop cases?
  • Will I have to testify at the trial?
  • Does going to trial prevent me from accepting a settlement offer?
  • Why is an experienced dram shop attorney crucial to winning at trial?

For other articles about the different stages of dram shop litigation and the strategies involved, be sure to read these companion pieces:

Why Do So Few Lawsuits Make it to Trial?

People may wonder, why do so few lawsuits make it all the way to trial? In many instances there is a problem with the lawsuit that results in it being dismissed. When people think of "frivolous lawsuits" they often think of giant awards for seemingly "trivial" injuries. The fact of the matter is that truly frivolous lawsuits never get to trial because they are tossed out by a judge long before that.

While dismissed lawsuits account for a fair bit of the lawsuits that never make it to trial, the vast majority of lawsuits never get to trial because the two sides agree on a settlement before then. This is because trials are inherently risky for both sides. For the plaintiff, the risk of a trial is getting nothing for their injuries. While this generally does not happen, it only takes one jury who finds the defense to be more credible and to have better evidence for the outcome of the case to be a jury verdict for the defense. Even if getting nothing is not normally the outcome, it is something that plaintiff's and their lawyers have to be mindful of.

First-party dram shop cases involve extra risk. In these cases, the plaintiff is the person who was over-served while intoxicated by the bar or restaurant and they seek compensation for their injuries. Depending on where someone lives, juries will interpret the responsibility of the bar and the patron differently. While the law is very clear that anyone, including the person drinking, who was injured by a bar or restaurant's unlawful alcohol service has standing to bring a claim, juries in certain parts of Texas tend to place most of the blame on the person who chose to drink and not the bar who broke the law by continuing to serve them.

This does not mean that first-party dram shop cases cannot be won, the attorneys at Grossman Law Offices have won dozens of these case. Instead, it is just another consideration for a plaintiff and their legal counsel.

For the defense, settling a case by providing reasonable compensation for the victim means that they do not have to take the chance that the jury will award even more money to the defendant at the conclusion of a trial. It also saves the defense on the cost of legal fees, which can be a significant amount of money. In Texas dram shop cases there is another serious concern. Trials tend to draw unwanted scrutiny to a bar or restaurant's operation, as well as negative publicity, which can harm a business.

In addition, many dram shop cases involve family members of deceased motorists, killed because a bar unlawfully served an intoxicated patron. Bars find it easier to minimize the impact of unlawful alcohol service on victims' lives when those victims are still alive. They can try and push some of the blame on to the victim. However, when a person has suffered the tragedy of losing a loved one because of unlawful alcohol service, juries tend to be much more sympathetic to their plight. This extra sympathy often motivates bars to offer more reasonable settlements offers.

These factors tend to force those injured due to unlawful alcohol service and the serving establishment to find common ground and reach a settlement before trial in most instances. However, when the two sides cannot agree on a fair settlement, a trial becomes necessary.

The Trial

Texas dram shop trials and other trials may seem pretty familiar to anyone who has seen a trial on television or in the movies. However, in order to heighten the drama, the entertainment industry often skips over certain parts of trials. For instance, in television shows and movies, juries magically appear just before lawyers give an opening statement.

Also, the fictional trial invariably has some shocking testimony or witness admission of guilt, which stun both the gallery and the lawyers alike. That rarely happens in a courtroom, because any witness in a civil trial has been deposed, or given testimony under oath, to the lawyers in the case before they ever sit down in a witness box. In almost every instance, the lawyers in a real trial know what is going to be said before the testimony is given before the jury.

With that in mind, a trial can be broken down into several parts. Those parts are:

  1. Jury Selection
  2. Opening Arguments
  3. The Plaintiff's Case
  4. The Defendant's Case
  5. Closing Arguments
  6. Jury Deliberations and Verdict

Jury Selection

No matter how many legal shows or movies you have seen, you most likely have never come across the legal term for jury selection, or voir dire. Loosely translated from Latin, voir dire means "to tell the truth." It is thought that this is a reference to the oath the jury takes when they are seated, but in legal circles, voir dire refers to the process of seating a jury.

Anyone who has reported to jury duty will notice that when jurors are called from the main jury pool, they always take more people than the eventual number needed to form a jury. This is because not everyone in the pool will ultimately end up on the jury. Potential jurors are questioned by both the plaintiff's attorney as well as the defendant's. The purpose of these questions is two-fold; they determine jurors' fitness to be a part of the jury, while at the same time probing for any potential bias.

A common question put before potential jurors is, "Do you personally know either of the parties in this case." Jurors who answer yes will be dismissed in most cases, because their personal relationships potentially bias the juror for or against a particular party and call into question their ability to impartially weigh the evidence that is to be presented during the trial. After all, it would hardly be fair for the defendant's cousin, who regularly drinks at a bar that is being sued to sit in judgment of the defendant. At the same time it is equally likely that the cousin could have an issue over an unrelated family matter that would bias them against their cousin. To avoid any issues altogether, the juror will likely be dismissed and sent back to the main jury pool.

Each side in the case is also given a certain number of peremptory challenges or strikes. These are no-cause dismissals of jurors. To dismiss a juror with a peremptory challenge one of the attorneys merely needs to submit the juror's number to the judge with a request that they be excused, no reason is necessary. The only time these challenges can be disputed is if one side feels the challenge is based upon race, gender, religion, or some other protected class. If the judge believes the challenge to be on one of those grounds, they are free to rule that way and keep the juror (this rarely happens).

Lawyers are also free to request that potential jurors be dismissed if their appears to be bias. For instance, if someone works as a liquor rep or distributor, the plaintiff's attorney may feel that the potential juror would be pre-disposed to rule in favor of the bar or restaurant, since such establishments make up their clientele. If a lawyer makes a for-cause challenge, the judge will rule on the challenge and decide whether the potential juror stays.

Once the number of potential jurors is whittled down through challenges to 12 (or 6 in a Texas county court) plus a certain number of alternates, the jury is sworn in and the trial begins.

Opening Statements

After the jury is seated, the trial will begin with the plaintiff being asked to give their opening statements. After the plaintiff has concluded her opening statement, the defense will be given to opportunity to make an opening statement. Contrary to what many people may believe from their experience with the media and entertainment industry, opening statements are not evidence. In fact, if either side chose to, it is within the rules for them to skip making an opening statement altogether. This seldom happens, but it is permissible.

Instead, opening statements permit each side to speak to the jury about what evidence they will present, the relevant law, and what they expect their case will show the jury, culminating in why they feel the jury will ultimately be on their side. While not evidence, opening statements function in the same way as a picture frame. While we know that a painting's frame is not the same as the painting, it has the ability to draw the eye to the painting and shape our impression of it. Similarly, opening arguments are designed to allow each side to show the jury how they feel the jury should look at the case.

Strategically, the most important part of an opening statement is that it invites a jury to be interested in the evidence they are about to see and hear. While by the time a lawsuit goes to trial, the plaintiff, the defense, and all of those involved in the dispute are well aware of who everyone is, it is easy to forget that to a jury everyone is a stranger. It is human nature to care less about people who are not a part of one's own life. The opening statement is an attempt by both side to invite the jury to care and capture their interest.

While those outside of the legal profession may not be aware of it, every law school in the country teaches the importance of opening statements. Research shows that even though no evidence has been presented yet, jurors can form strong impressions from opening statements that will last throughout the trial. Excellent trial attorneys are aware of all of this and have proven track records inside the courtroom, whereas inexperienced attorneys do not necessarily have the same time in front of juries and the same acumen using an opening statement to develop a rapport with the jury.

The Plaintiff's Case

Since the plaintiff is the one who has filed the lawsuit, they present their case first. Additionally, it is on the plaintiff to prove the elements of their case. In a Texas dram shop case, the elements that plaintiff must prove are:

  • The defendant must have served an obviously intoxicated person who was a danger to themselves or others.
  • The intoxication must have been the proximate (direct) cause of an accident.
  • The accident must have resulted in injuries.

There is no set structure for how the plaintiff presents their case. In most instances, the evidence that is allowed to be presented has been determined by pre-trial hearings. Out of the admissible evidence, the plaintiff's attorney is free to present it whatever order she likes.

For instance, if the plaintiff's lawyer wanted to lead off the dram shop case by showing surveillance footage from inside the bar or restaurant showing just how intoxicated the person was, it would be permissible. In other instances the plaintiff's attorney may want to call the accident victim right off the bat so the jury could see the damages that the accident caused.

In almost every case, the plaintiff will have to take the stand and testify. While this prospect might seem scary to some, they will not be put on the stand without preparation. The plaintiff will know what questions their attorney is going to ask them, while also having a fairly good idea of what the defense attorney will be asking. This is because witnesses are prepped, or asked to practice giving their testimony ahead of time. Any lawyer worth their practice will work with their client until they feel comfortable testifying.

With each witness that is called, after the plaintiff's attorney has asked all of the questions they care to ask, the defense lawyer will have to opportunity to ask their own questions. This is known as cross-examination.

The plaintiff's attorney continues to present evidence and call witnesses until they have presented their case, at which point they rest. By this point the plaintiff must have proved the three elements of a Texas dram shop case in order for their client to have a chance of winning.

The Defense Case

After the plaintiff rests, the defense has the opportunity to present their case. A defense case can look very similar to a plaintiff's case in that evidence is admitted and witnesses are called and examined. Of course, the big difference is that the defense is not required to do anything.

If you recall, the plaintiff has the burden to prove their case. The defense has no legal burden. They are their to show that some part of the plaintiff's case does not satisfy the three elements of a Texas dram shop case. If they feel that the plaintiff hasn't met their burden, they are free to rest their case without calling any witnesses or introducing any evidence.

In a Texas dram shop case, the plaintiff is saying, "This bar served X while they were obviously intoxicated, that over-service ended up causing my injuries, and I can prove it." For the plaintiff to win, all of that has to be true. So in essence, if the defense can successfully contest any part of that statement, they win.

One area where a defense differs from a criminal trial is that the defendant does not have 5th Amendment protection in a civil case. This protection is a constitutional guarantee against self-incrimination. Without this protection, a defendant can be compelled to testify in a civil case, regardless of whether they wish to or not. If a defendant refuses to testify, they can be cited for contempt of court.

When the defense is satisfied that they have presented their argument, or feel that the plaintiff did not make their own argument, they will rest.

Closing Argument

At this point the trial proceeds to closing arguments. The plaintiff's lawyer will again go first and each side will attempt to summarize their view of the case, while asking for the jury to return a verdict in their client's favor.

Much like opening statements, closing arguments are not evidence and no new evidence is presented in a closing argument. Instead, they attempt to tie the case together.

If the opening statement acting like a picture frame, the trial would then be the painting inside the frame. In this context, a closing argument would be each attorney's attempt to draw the juror's attention to different aspects of the case, much like an art historian would point out key, distinguishing features of a painting.

Much like the opening statement, a closing argument is not required, but almost always given. Once both sides have given their closing arguments, their portion of the trial concludes.

Jury Deliberation and Verdict

After each side has presented a closing statement, the case will be turned over to the jury for deliberations.

Before the jury is sent to a room where they will deliberate, they are issued instructions by the judge. The judge does not tell the jury what verdict they should reach, but merely explains the law and the jury charge. A jury charge is a list of questions that make up a jury's verdict. In a Texas dram shop case, some of the questions on a jury charge might include:

  • Did bar X serve an obviously intoxicated patron?
  • Did the the obviously intoxicated patron cause an accident due to their intoxication?
  • Was the accident the cause of the plaintiff's injuries?

If the jury answers yes to all of those questions, there will be an additional question where the jury decides compensation.

While the jury is determining their answer to these questions, they are kept by themselves and do no interact with the outside world. Should they have questions about the law, or if they would like to review a piece of evidence, they will send that request to the judge.

The judge will then order evidence to be provided or attempt to answer the legal question in such a way as to not sway the jury's verdict. If a question cannot be answered in such a way, the judge will inform the jury of this.

Deliberations have no set time-frame and take as long as they take. Juries can come back in as little as 15 minutes or they can deliberate for days. The vast majority of Texas dram shop case deliberations will fall in between those two extremes.

Once the jury has reached a verdict and decided on the amount of damages (if any), they inform the judge. For a jury to have reached a verdict, there must be agreement of 10 out of the 12 jurors, or 5 out of 6 in county courts. Court is then called back into session, the judge reviews the verdict, and then it is read aloud.

Up until this point, both sides are still free to reach a settlement agreement. Perhaps the defense didn't like how their case went or maybe the plaintiff received an offer that made waiting for the jury verdict more of a risk than it was worth. While it would be uncommon to have a settlement after the jury has come back from deliberations, it is not uncommon to receive another settlement offer shortly after the jury has gone off to deliberate.

Why You Need an Experienced Dram Shop Lawyer

While many law firms refuse to take on dram shop cases, of those that do, many of them have never litigated a dram shop case through trial. The leverage that a Texan who was injured by a bar or restaurant's unlawful alcohol service needs to secure a fair settlement for their injuries comes from hiring an attorney who can win at trial. Without the threat of an attorney who can properly prepare a dram shop case and win a jury to her client's side, there is no incentive for a bar to settle, no matter how liable they may be.

The attorneys at Grossman Law Offices have been holding bars and restaurants who serve intoxicated patrons accountable for the injuries their reckless behavior causes for over 25 years. In that time we have helped over 100 Texans receive compensation from dram shop lawsuits. When you hire Grossman Law Offices to represent you, it tells a bar, their defense team, and their insurance company that your legal counsel is not afraid to see your case all the way to trial.

If you have questions about your dram shop case, or would like a free consultation, call us at (855) 326-000. We answer the phone anytime day or night.


The following related articles may be of interest if you have been injured by bar's unlawful alcohol service