Several weeks ago I experienced the dream assignment for a trial lawyer: jury service. Before rolling your eyes and moaning, let me explain that it was not the summons that was thrilling, not the tedium of the central jury room experience, nor anticipating the ultimate strike or challenge for cause that would surely come. No, it was being chosen to serve on the petit jury that was exciting. My view that jury service was a waste of time for me, because who would pick a lawyer for jury service, was proven wrong and jury service became an incredibly interesting and important experience.
Initially, when called upstairs for a family custody case, I felt like I would not be selected because I was juror number 38 of 40. I remarked to jurors 39 and 40 that we probably would not receive many questions, if any, because we were so far back. The only wild card was a possible shuffle, something rarely employed in civil cases, but that is exactly what happened, and I became juror number 10. So much for no questions! I still believed, though, I would not be selected because I was a lawyer, and as if that wasn’t bad enough, a criminal lawyer.
The custody case featured three sets of attorneys: a prosecutor representing CPS, an attorney ad litem representing the children involved, and the intervenor’s attorney, representing family members who wanted to adopt the children. When asked if I knew any of the parties, etc., I replied that I knew at least casually the judge, the bailiff, the court reporter, and some of the parties’ attorneys. I also explained I had dealt with cases involving CPS, and had not always had a pleasant experience with the department. For good measure, I also indicated I knew of one of the experts in the case. That should do it, I thought – but no, after strikes and challenges, all three sets of attorneys had left me on.
I wish all attorneys could participate in the trial process as a juror. I am the proverbial lawyer who has selected hundred of juries and handled hundreds of trials and I believe I am pretty good at it. But the juror experience opened new avenues of thought in that—maybe the trial is <shock, gasp> about the facts and applicable law, and not the lawyers and their egos.
The jury I served on was comprised of men and women who were young, old, black, white and Hispanic—a really good cross-section of our community. Every juror focused on the details of the case, even when things became bogged down with evidentiary issues and objections. The early comments of jurors during court recesses addressed the lawyers’ demeanors, but all jurors seemed to be attentive to even the tiniest evidentiary details. All the stereotypes and conventional wisdom about what a certain type of person will believe or whether they will pay attention because of age or other factors was not true on our jury, and this became very clear during deliberations.
A. 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.
B. 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 prevailing party wasn’t necessarily well-liked by the jury, and so it became apparent that something other than the actual lawyers was at play here—the jurors were paying attention to the law and facts. Go figure. But this is not to say that lawyers don’t make a difference— clearly a clever, skillful lawyer can make a huge difference. Similarly an ill-prepared and inept lawyer can make a difference too—albeit a negative one. Still, most of the comments about the lawyers were in the nature of “He is obnoxious”, “She has annoying habits”, and even more pointed comments not fit to print.
One of the things that impressed me was the speaking objections made by the lawyers and the impression was not favorable. Try not to make these. I will renew my efforts not to after being subjected to them as a juror. The speaking objections came across to the jury as: a.) a selfish waste of time, and b.) argumentative. The next time you try a case just make your legal objection. The other way is not perceived favorably, trust me. Additional things to avoid include finger-tapping, gum chewing, texting, wearing glasses on the end of the nose—all these things were mentioned as annoying habits of the lawyers and or witnesses. A little jousting with the judge or opposing Counsel though was well-received if an important point was being argued.
In the end the evidence was the focus, and generally the lawyers did a good job. However, I think no matter what your experience level a few days in the seat of a juror is good for all lawyers. Remember, it is not impossible to serve. It happened to me.