Keep those prospective jurors talking

Years ago when I was a young attorney I would cringe during voir dire if a prospective juror gave a negative opinion of anything that had to do with my case.  I would either quickly move on to another prospective juror or try to convince the first juror that they were wrong.  Those are the wrong things to do. You want that juror to talk and give you all the negative opinions they have without being afraid of those opinions.  The opinions are information. They tell you how that juror thinks and that helps you to possibly challenge the juror for cause or make a wise preemptory challenge.  The prospective jurors you should be afraid of are the ones that are quiet.

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Where have all the jury trials gone?

I suppose this shouldn't surprise me but it did.  I live in Yakima, Washington the population of which is approximately 70,000.  The county, Yakima, has a population of 200,000+.  We have seven Superior Court judges and several available courtrooms on any given day.  Last year, 2006, there was a total of 11 civil jury trials.  Eleven!  On the other hand there were dozens of criminal jury trials.  I guess the moral of the story is that if you are a young attorney and want to get some jury trials under your belt try criminal law.
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Only a trial lawyer.

Only a trial lawyer would get hung up on a thing like this.  I was reading an article at Law.Com-Daily News Wire about the jury deliberations in the Libby case.  Out of the whole article I was hung up on the juror who kept track of the number of objections during Tim Russert's testimony including how many were sustained and how many denied.  25 out of 36 objections were sustained.  Now why is a juror keeping track of that.  Does it mean something to that juror if more objections are sustained than denied?  Does the objecting party get points for each objection sustained?  I think it leads me to the conclusion that the less objections the better.
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In Praise of Juries

Recently I have been reading a lot of history about the founding of our nation and the decades following the ratification of the Constitution.  In my reading I came across a brief reference to the fact that Alexis de Tocqueville was an admirer of the American jury system.  Not content with that brief reference I googled it and found the following at the Jury and Democracy Project:

Nearly two centuries ago, Alexis de Tocqueville (1835) contended that jury deliberation served a larger civic function in America. The jury, he wrote, “is highly beneficial to those who decide the litigation” and “one of the most efficacious means for the education of the people which society can employ” (p. 337). The U.S. Supreme Court, in Powers v. Ohio (1991), invoked Tocqueville’s Democracy in America to argue that citizens not only have the right to trial by jury but also the right to serve on juries, owing to the jury’s value as a means of civic education. The American jury was designed to promote not only fair verdicts but also a sense of civic duty, and the experience of jury deliberation may boost citizens’ sense of civic responsibility and levels of public activity.

I don't know about the rest of you out there but this kind of stuff makes me proud to be a lawyer.  And, as an after thought, whenever you are being pummeled by doctors with lawyer jokes remember that when doctors were bleeding George Washington to cure his ailments, lawyers were writing the U.S. Constitution.

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Mock Juries On Line

Robert Ambrogi recently pointed out an upcoming service featuring mock juries on line at a relatively low cost.  For approximately $1500 to $2500 attorneys can submit a case in written form, in written form with audio or in written form with video.  After submission of the case a panel of on line jurors decide the case and the results are emailed to the attorney who submitted the case.  The service is called TrialJuries.  If anyone out there in the blogosphere ever uses this service I would be interested in any feedback.
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Be REALLY Honest with the Jury!

Clay S. Conrad at jurygeek takes the Texas Young Lawyers Association to task for publishing an article on their webpage, American Juror, that tells the public that attorneys, during voir dire, are looking for unbiased jurors who can weigh the facts fairly and decide the truth no matter where that may lead them.  Mr. Conrad maintains that if we tell the prospective jurors just that, we are lying thourgh our teeth and most jurors will figure that out and when they do there goes our credibility.

I agree.  We are looking for jurors who will be the most biased towards our case and who are close to the line at getting bumped for cause. And we want to knock out those who are most biased towards the other side's case.  Attorneys all know that and those that will step forward and say so will gain credibility. I once heardPaul Luvera give a talk on jury voir dire wherein he said just that.  He tells the jurors that he is looking for a jury that is allready leaning his way and that opposing counsel is looking for one that will lean towards their side. That is the truth and the jury should hear the truth.

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Emotion Cannot be Divorced from Reason

In Washington, a portion of  Washington Pattern Jury Instruction (Civil) 1.01 reads as follows:

As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.

We are asking jurors to do something that is not possible.  Our emotions are an intregal part of our reasoning process.  Emotion usually comes before reason.  An astronomer does not spend his or her time reasoning out the workings of the stars and planets without first having been drawn to the science by a sense of awe.  Even Donald Trump does not use his rational mind to figure out how to make millions without some emotional need to be the top dog.  In fact our limbic system which is part of the brain aids the rational brain by enhancing memory and it is thought that damage to the  limbic system may result in autism.  In short, we cannot function without emotion.

In ancient Greece pathos was an integral part of rhetoric.  Aristotle devotes many pages of his The Art of Rhetoric to emotions such as anger, calm, shame, pity and jealousy.

So, he asked rhetorically, what's the point here?  The point is that you will be much less likely to win your case if your argument or your theme is, "Let's be rational here folks.  We cannot be carried away be emotion.  We must dispassionately apply the law to the facts."  That is not going to work.  Even by saying it seems to imply that the speaker knows he's on the wrong end of what emotionally feels like the right thing to do.  So the art of rhetoric is to always find some emotion to tap into to support your reasons why your client should win.



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Jurors Ask Questions

In the State of Washington jurors are allowed to take notes and ask questions of the witnesses.  This has been the case for several years.  I'm am not sure how many other states allow this. But if your state is contemplating doing it I would urge them not to.

This has been my experience in Washington.  After the attorneys have questioned a witness, the judge turns to the jury to ask them if they have any questions.  If they do they write the questions on a piece of paper and the bailiff collects the questions and hands them to the judge.  The judge then looks them over and calls both attorneys to a side bar.  At the side bar the attorneys look at the questions, the judge indicates whether or not he or she is inclined to allow the questions and then asks the attorneys for their input.  The judge then decides which questions will be allowed and then asks the witness the question.  No explanation is given to the jury as to why certain questions were not asked.

The first problem I have with the process is that it adds a lot of time to the trials.  The second problem is that it appears to the jurors that there are some kind of shenanigans going on between the judge and the attorneys.  Further they are very puzzled as to why certain questions were not asked.  So if the point is to empower the juries, I think the opposite happens and they become more suspicious of the systerm.

For those who have not experienced this process this is what you can expect when you look at the questions.  Many times you will scratch your head and wonder if you and the jury are at the same trial.  It makes you very uneasy when you are left wondering whether or not you are gettting through to the jury.  On the other hand it does give you a heads up as to what the jury may be focusing on.  Many of the questions are just plain improper (asks for hearsay, irrelavent etc.).  And, some of the questions are actually good questions, are ones the attorneys hadn't thought of and make the attorneys a bit uneasy because they often times do not know the answer to the question.

But, ultimately, is it really an aid to discovering the truth?  I do not think so.  While there are good questions on occasion, most of them do not add much to the facts that the jury has already been given. Therefor, what you are left with is one more reason for juries to not trust the system. 

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