Monday, July 11, 2005

Juror #6

In the last couple weeks, I had the privilege of serving on a jury in a civil case--specifically, a case alleging wrongful termination on account of filing a workman's compensation claim. It was the first time I had ever been summoned for jury duty, and I was quite surprised to be picked. I was also pretty excited. As a trial lawyer, the jury is the ultimate mystery. Do they follow their instructions? Do they make up their minds about the case before they even deliberate? What gets discussed in the jury room? Are bargains struck? Compromises reached? Of course, I wanted to properly fulfill my obligations as a juror, but I also knew that this was one hell of a chance to get an inside view of jury service. And, indeed, it was. So here, in no particular order, are the things I learned from serving on a jury:

1. Jurors have to sit around and wait--a lot. This is annoying and frustrating. Anything judges and lawyers can do to alleviate this problem will go a long way to keeping the jurors happy.

2. The first witness in the case is crucial. In our case, the plaintiff was the first to testify. He testified on direct for a couple hours, and came across as credible. Once he was done with his direct testimony, I am 99% convinced that at least one of the jurors had already made up her mind to find in his favor. Even I had to fight the urge to simply adopt the plaintiff's story as the truth. For at least a couple of the jurors, I think anything they subsequently heard in cross examination or from defense witnesses was viewed with immediate skepticism. It was as though the truth had been established, and the defense now had to try to pound up against and chip away at that.

3. Defense attorneys should almost always make an opening statement. The one thing that prevented me from simply believing the plaintiff's testimony outright was knowing what the defense said their theory of the case was. It's not that I believed the defense attorney was telling the truth and the plaintiff was not. Rather, knowing what the defense version was made me want to wait until I heard cross-examination of the plaintiff and saw more evidence before I decided which version I believed.

4. Juror questions are scary. In this civil case, the jurors were allowed to ask questions. Once the attorneys had finished questioning a witness, we were permitted to submit written questions which the judge and the attorneys reviewed. If they passed muster, the judge asked the witness the questions. As a juror, I found this extremely helpful. As a trial lawyer, the thought of jurors asking questions is frigtening. If the prosecutor doesn't think to ask a question that he should, I don't want the juror to do it for him! And sometimes, you may have some questions you could ask, but you prefer to leave for closing argument. Again, I don't want the jurors asking those questions. The one way I think it can be helpful for the attorneys is to get some idea what the jury may be thinking as the trial is progressing. But it still scares the hell out of me. Are there lawyers out there who practice in a jurisdiction that allows this in criminal trials? I'd love to hear your thoughts on how it works.

5. Jurors make compromises. Our jury instructions were very clear on the issue of making bargains. Jurors were not permitted to go along with other jurors on Question #1 in exchange for getting their way on Question #2, for example. On the surface, none of my fellow jurors did that. But one of them did change his original opinion on the liability question to go with the majority, and then state more than once that he would change it back if the damages were too high. When reminded that we were not permitted to strike those bargains, he said he was not. And he may have honestly believed that he wasn't. I certainly could never prove that he did. But, in my mind, that is what it appeared to be--he agreed to find the defendant liable as long as the damages awarded to the plaintiff weren't too high.

6. Requiring unanimity is a good thing. In this civil case, we were not required to have a unanimous verdict. All that was required was 5-1. That, to me, posed a huge problem. When we took our first vote, we were 4-2. We spoke about the case for a short while, and then one of the two changed his opinion, and we were 5-1. That was it. We spent maybe 10-15 minutes discussing the evidence in the case before we had a verdict on liability. Since five votes was enough to have a verdict, no one was willing to discuss the evidence or listen to an opposing viewpoint anymore. In essence, there was very little deliberation. I think when jurors are required to reach a unanimous verdict, there is a much greater probability that the jurors will actually spend an appropriate amount of time to discuss the evidence and work out the right result. Of course, there is always the possibility of a hung jury, which nobody likes. But I'm not sure that it isn't better to have a few more hung juries than to have such little deliberation before a verdict is reached.

7. Who the presiding juror (foreperson) is doesn't really matter. Whenever big media cases are in deliberations, you always hear the reporters gossiping about who the jury foreperson is--as if that somehow gives them insight into what the verdict will be. I am here to tell you that--at least in my case--it doesn't matter one bit. As you might have guessed from the above discussion, I was the one juror who dissented from the verdict. This, despite the fact that as soon as we entered the jury room for deliberations, my fellow jurors made me the presiding juror. It ended up meaning virtually nothing. I did referee some little tiffs over damages issues. I tried to ensure that everyone was allowed to speak their mind. And I did my best to ensure that we followed all the instructions from the judge. But, in the end, I could not persuade any of my fellow jurors that my position was correct. Neither my position as a lawyer nor as presiding juror mattered when it came to that decision. I don't say this as a complaint. That is exactly how it should be, in my opinion. The presiding juror gets one vote--just like everyone else. And I don't believe a lawyer is any better qualified to reach an appropriate verdict than an average citizen.

In the end, the plaintiff was victorious and was awarded about a year's salary in damages plus $5000 for mental anguish. I dissented from the verdict, but I cannot say that my fellow jurors were wrong. I disagreed with them, for sure. But with five of them agreeing, it's more than probable that they got it right. I found out afterwards that the defense lawyer had actually meant to use a peremptory strike on me, but had been confused by the numbering after one of the panel members was excused early due to language problems. As it turned out, I was the only person who saw the case his way. Go figure.

It truly was an honor to serve, and it was a great learning experience. If I think of anything else, I'll post it. If you have any questions, fire away! I'll answer whatever I can.

2 Comments:

Anonymous Mystery Man said...

I think... the defense attorney realized that a) while you'd see things his way b) you'd have a bad effect on the rest of the jury.

which you did. but whatever. this was ages ago. thought I'd chime in though cuz I'm reading all your entries. this is really great stuff =)

10/11/2008 12:41 PM  
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