As a follow up to my previous post regarding my day of jury duty, this post will involve some free advice to attorneys. I rarely provide free advice, but my observations during my jury service warrant it. When the plaintiff’s attorney in the automobile accident case on which I was a prospective juror began to question me about my suitability as a juror in the case, the first question he asked me was whether I was critiquing his jury selection strategy. Both he and I knew the answer to his question was a resounding, “Yes, of course!”, however, I replied, as benignly as possible, that critiquing attorneys’ jury selection strategies is an occupational hazard for me. He wryly nodded his head, then moved on with more substantive questions. Most of his questions were garden variety questions that inquired about prospective jurors’ backgrounds, including experience with auto accidents, serious injuries, and medical procedures. He asked several people questions about bumper stickers and TV news preferences, which many attorneys believe are clever ways to determine people’s political leanings. He then asked numerous questions designed to assess prospective jurors’ willingness to award multi million dollars in a personal injury case. Some of my fellow jurors noticeably bristled at what they perceived to be an invasion of their privacy, with one woman loudly exclaiming to the rest of us that the name of the school where she works as a guidance counselor is none of his business. Although I was “off duty” during my day of jury service, it was obvious to me which jurors should be excused, and why. The plaintiff’s attorney was young and inexperienced, however, he was vastly more prepared than his counterpart on the defense side of the case. In addition, the defense attorney failed to have his client present which, in my opinion, was a big mistake. My free advice to all attorneys consists of the following points:
- When you are planning to challenge someone for cause (due to their inability to be a fair and impartial juror for whatever reason), ask the judge to excuse the person immediately. In my case, I was allowed to remain with the 24 other jurors for the entire day. I tried to avoid talking to them, however, they surrounded me, begging me to tell them how to be excused, asking why things were taking so long, and inquiring whether these attorneys knew what they were doing. This was a dangerous situation, all things considered.
- Pay attention to the jurors’ answers to your questions, as well as the questions asked by the judge and opposing counsel. After many hours of being asked boring and repetitive questions, the plaintiff’s lawyer asked who among us was in pain from sitting all day. One of the prospective jurors, who had previously revealed she is a recent breast cancer survivor, said she was in considerable pain at the site of her reconstructive surgery. The plaintiff’s lawyer replied, “Oh, I guess that means your back hurts.” A collective gasp was then heard, followed by the embarrassed woman stating that it was not her back that hurt, but the place where her breasts used to be. All I can say about this is “Dude, why did you think her back hurt?”.
- When you are representing the defendant, everyone knows you ask questions after the plaintiff’s attorney has asked about almost everything anyone could ever want to know. But, you still have to ask decent, thoughtful questions! In the case on which I observed jury selection, the defense lawyer was far more interested in hurrying than doing a good job. He asked 8 silly questions, all of which required a collective “Yes” or “No” answer and never once addressed any juror on an individual basis. This, folks, is a huge mistake.
- Think of the impression you, as an attorney, are making on us, your jury. The defense attorneys could not be seen by any of us seated in the jury box. As I mentioned before, the defendant was never present during jury selection. And, perhaps worst of all, one of the defense lawyers made a hurried exit from the courtroom at 5:00. The hapless defense lawyer who remained later explained that his co-counsel had to leave in order to coach his kid’s soccer game. Oh my! This means that, while the rest of us were forced, and I do mean forced, to stay in the courtroom until almost 7:00 p.m., after being forced, and I do mean forced, to arrive at 7:45 a.m., this guy left to have fun with his kid. When we were asked whether we would hold that against the defendant, I wryly noted that no one answered!
Maybe it appears I am being too harsh in my critique of these attorneys, however, my opinions were widely shared among my fellow jurors. In fact, upon hearing criticism after criticism from the other jurors, I tried to explain that everyone has to learn from their mistakes, maybe these attorneys will get better as the trial progresses, and they are doing the best they can. Whether anyone who ultimately was selected believed me remains to be seen.
Because I don’t do in court jury selection consultation, my critique of the attorneys I’ve observed is more limited. But, for the jury on which I was selected, I had a few observations. The primary one was the fact that the attorneys for the prosecution and the defendant – a public defender, did a POOR job at voir dire. Their major mistake was forgetting to listen, and instead, doing all of the talking. (This topic is covered in Melissa’s list of “Common Mistakes Attorneys Make in Voir Dire,” one of our CLE programs, which she presents live and on our magnusce.com website.) During a trial there is one time period when the jurors get to talk. That is during voir dire. The rest of the time the attorneys can talk all they want, but during voir dire, the objective should be prompting the jurors to talk and then “shutting up” and listening! In the case I mentioned, the young public defender did slightly better than the somewhat more experienced prosecutor. The prosecutor spent almost her entire time allotment preaching about the burden of proof, and asking if we understood it and agreed to follow it. She missed some very obvious challenges – with one juror telling the rest of us later that she “hated the police.” The prosecutor asked nothing that would have elicited that detail. A few weeks after the trial was over I made calls to the public defender, the prosecuting attorney, and the judge. Notably, among the 3, only the judge called me back and we had nice chat. I was giving the attorneys an opportunity they should have jumped at; neither of them took it. Their loss.
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