Part V: Trial Practice

Chapter 15 — Trial Tactics

Jury Selection

1. Defense Objectives in Dram Shop Cases Enhanced Post-Raoger

  • Identify jurors with strong anti-alcohol bias.
  • Educate panel on statutory limits: liability exists only if intoxication was obvious at the time of service and proximately caused the injury.
  • Introduce the Raoger standard: courts require direct evidence of what providers could actually observe, not mathematical speculation.
  • Reinforce principle of personal responsibility: providers are not insurers of public safety.
  • Introduce apportionment from the start: Texas law allows jurors to allocate fault among everyone responsible—including nonparties designated as Responsible Third Parties (RTPs).

Sample Introductory Questions Enhanced:

  • “Should adults bear responsibility for their own drinking decisions?”
  • “Do you believe a bar should be responsible every time a customer later drives drunk?”
  • “The Texas Supreme Court recently emphasized that providers can only be liable for what they could actually see and observe when serving alcohol. Do you agree that liability should be based on what was actually apparent, not mathematical calculations after the fact?”
  • “If the evidence shows the drunk driver, another bar, or even the plaintiff made independent choices that contributed to the crash, could you fairly allocate percentages of responsibility?”

Opening Statement Enhanced

5. Post-Raoger Opening Strategy

  • Anchor in Raoger: Lead with the Texas Supreme Court’s recent emphasis on direct observational evidence
  • Frame the Evidence Gap: Highlight the absence of anyone who observed intoxication at time of service
  • Distinguish Real Evidence from Speculation: Contrast actual observations with expert calculations
  • Emphasize Temporal Precision: Focus jury attention on the specific moment of service

Example Opening Statement:

Good morning, everyone. This case is really about a simple question: should businesses be liable for what they could actually see, or for what experts calculate later using math?

The Texas Supreme Court just answered that question clearly. In a case called Raoger Corporation v. Myers, they said liability must be based on what was actually apparent to the people serving alcohol—not on expert calculations done after an accident.

Here’s what happened: John Doe came to Blue Star Grill for dinner. He had two beers with his meal, appeared completely normal, and left. Everyone who saw him—the bartender, other customers—will tell you he looked fine. No one flagged any concerns.

Hours later, after drinking more elsewhere, John made a terrible choice and caused this accident. Ms. Green was badly hurt, and we feel for her. But the question is: should Blue Star Grill be blamed for something we couldn’t see or predict?

The plaintiff wants you to ignore what people actually observed and instead rely on math. But the Supreme Court said that’s not how the law works. They said expert calculations about what someone “would have” looked like are just speculation.

The evidence will show John appeared normal when we served him. Under Texas law, that’s what matters. We ask you to follow the law and find that Blue Star Grill acted responsibly.

Cross-Examination Techniques Enhanced

7. Cross-Examining Plaintiff’s Toxicology Expert Post-Raoger

Opening with Raoger Authority:

  • Q: “Dr. Jones, you’re familiar with the Texas Supreme Court’s recent decision in Raoger Corporation v. Myers, aren’t you?”
  • Q: “The Court held that expert opinions about how someone ‘would have’ appeared based solely on BAC constitute ‘pure speculation,’ correct?”
  • Q: “Your testimony today attempts to do exactly what the Supreme Court rejected in Raoger, doesn’t it?”

Emphasizing Observational Evidence Gap:

  • Q: “You cannot identify a single person who observed [Patron] showing signs of intoxication at the time of service, can you?”
  • Q: “Your entire opinion is based on mathematical calculations, not actual observations, isn’t it?”
  • Q: “The Supreme Court emphasized that ‘the relevant inquiry is the customer’s appearance to the dram shop when he was served,’ not calculations, correct?”