|March 8, 2012|
Previously published by NSIDE Magazine on January 2009
Several weeks ago Iexperienced the dreamassignment for a trial lawyer:jury service. Before rolling youreyes and moaning, let me explainthat it was not the summonsthat was thrilling, not thetedium of the central jury roomexperience, nor anticipatingthe ultimate strike or challengefor cause that would surelycome. No, it was being chosento serve on the petit jury thatwas exciting. My view that juryservice was a waste of time forme, because who would picka lawyer for jury service, wasproven wrong and jury servicebecame an incredibly interestingand important experience.
Initially, when called upstairsfor a family custody case, I feltlike I would not be selectedbecause I was juror number 38of 40. I remarked to jurors 39and 40 that we probably wouldnot receive many questions,if any, because we were so farback. The only wild card was apossible shuffle, something rarelyemployed in civil cases, but thatis exactly what happened, andI became juror number 10. Somuch for no questions! I stillbelieved, though, I would not beselected because I was a lawyer,and as if that wasn’t bad enough,a criminal lawyer.
The custody case featuredthree sets of attorneys: aprosecutor representing CPS, anattorney ad litem representingthe children involved, andthe intervenor’s attorney,representing family memberswho wanted to adopt thechildren. When asked if I knewany of the parties, etc., I repliedthat I knew at least casuallythe judge, the bailiff, the courtreporter, and some of the parties’attorneys. I also explained Ihad dealt with cases involvingCPS, and had not always hada pleasant experience with thedepartment. For good measure,I also indicated I knew of oneof the experts in the case. Thatshould do it, I thought - but no,after strikes and challenges, allthree sets of attorneys had leftme on.
I wish all attorneys couldparticipate in the trial processas a juror. I am the proverbiallawyer who has selected hundredof juries and handled hundredsof trials and I believe I ampretty good at it. But the jurorexperience opened new avenuesof thought in thatâ€”maybe thetrial is <shock, gasp> about thefacts and applicable law, and notthe lawyers and their egos.
The jury I served on wascomprised of men and womenwho were young, old, black,white and Hispanicâ€”a reallygood cross-section of ourcommunity. Every juror focusedon the details of the case, evenwhen things became boggeddown with evidentiary issuesand objections. The earlycomments of jurors during courtrecesses addressed the lawyers’demeanors, but all jurors seemedto be attentive to even the tiniestevidentiary details. All thestereotypes and conventionalwisdom about what a certaintype of person will believe orwhether they will pay attentionbecause of age or other factorswas not true on our jury, andthis became very clear duringdeliberations.
- Day One The first thing we did was vote for a foreperson, and surprise, it was me. I will say I did not seek the role but was drafted for it. Many interesting things happened as we began to consider the evidence. One individual pressed for a quick vote stating that it probably wouldn’t take long. I expressed some doubt that we would be so quick, but opened up discussions of the evidence. My thought was to have each juror, beginning on my left, state his or her views and opinions. It quickly became apparent after initial deliberations that the juror who didn’t think it would take long, held views very different from the rest of the group. I proposed adjournment until the next day and all quickly agreed to that proposal. Â
- Day Two The deliberations resumed and everyone expressed strong views supplemented with evidentiary support. Some of the most vocal, strong jurors, were very quiet during jury selection, and were amazingly resolute in their positions. It is dangerous for lawyers to assume that a very young juror or a quiet juror is always a follower. The jurors were all articulate, had a good grasp of the facts in the case, and were persuasive. No one was shy in our group when it came to deliberations. After some pretty emotional exchanges, everyone agreed on a verdict. Except for the juror who initially thought it would be a speedy decision based on her view of the evidence. However, since civil cases only require a 10 person majority for a verdict, at 11-1 we had a decision. As I reached for the buzzer the contrary juror said we had finally convinced her and so unanimity was achieved. The case was difficult, but we reached the right result based on considered deliberations of the evidence and not the charisma, or lack thereof, of the attorneys.
The lawyer for the prevailingparty wasn’t necessarily well-liked by the jury, and so it becameapparent that something otherthan the actual lawyers was atplay hereâ€”the jurors were payingattention to the law and facts. Gofigure. But this is not to say thatlawyers don’t make a differenceâ€”clearly a clever, skillful lawyer canmake a huge difference. Similarlyan ill-prepared and inept lawyercan make a difference tooâ€”albeita negative one. Still, most of thecomments about the lawyers werein the nature of “He is obnoxious”,“She has annoying habits”, andeven more pointed comments notfit to print.
One of the things thatimpressed me was the speakingobjections made by the lawyersand the impression was notfavorable. Try not to make these.I will renew my efforts not toafter being subjected to them asa juror. The speaking objectionscame across to the jury as: a.)a selfish waste of time, and b.)argumentative. The next time youtry a case just make your legalobjection. The other way is notperceived favorably, trust me.Additional things to avoid include finger-tapping, gum chewing,texting, wearing glasses on the endof the noseâ€”all these things werementioned as annoying habits ofthe lawyers and or witnesses. Alittle jousting with the judge oropposing Counsel though was well-received if an important pointwas being argued.
In the end the evidence was thefocus, and generally the lawyersdid a good job. However, I think nomatter what your experience levela few days in the seat of a juror isgood for all lawyers. Remember,it is not impossible to serve. Ithappened to me.