Dynamic disciplines like medicine or law require an ongoing pursuit of experience in order to meet the diverse challenges of their respective professions. Sometimes those experiences are best obtained by viewing processes from a different perspective. A member of our team recently had the opportunity to learn about trial law from a most unique—yet fundamental—perspective: the juror’s perspective.
A civil litigation attorney serves jury duty
As Ohio civil litigation attorneys, we seldom get to experience the courtroom from a jury box. Years ago, exemption rules kept lawyers and other professionals from serving jury duty in this area. Those exemptions have been lifted, but even now attorneys called to jury duty are rarely selected to serve, and those who are selected are usually not trial lawyers—more likely they’re transactional lawyers, tax attorneys, etc.
This is no surprise. After all, if you’re a plaintiff’s attorney called to jury duty, a civil defense attorney likely won’t select you due to concern that your sympathies lie with plaintiffs. If you’re a criminal defense attorney, a prosecuting attorney would similarly be concerned that you have a bias in favor of criminal defendants.
Yet recently, a member of our team, Chip Cooper, was selected to serve on the jury for a domestic violence case. It’s hard to say why he wasn’t struck from the jury, given his legal background. It could be that because Chip is a trial lawyer in civil, not criminal law—and this was a criminal case—the attorneys felt confident he could be a fair and impartial juror.
Regardless of the reasons why he was chosen, from a professional standpoint his experience in the jury box was a rare coup, as it gave him the unique advantage of seeing a trial through a juror’s eyes. From that perspective, he took away a number of insights we all can learn from. Below are some of his takeaways:
- Be professional and cautious. As he was walking to the courthouse, dressed informally for jury duty, Chip overheard two attorneys discussing sensitive aspects of their case—a witness they thought would do poorly, a judge whom they thought was unqualified.
As an attorney, it’s wise to show up for trial and assume that everyone around you could have some involvement with the case. What you say and how you present yourself—both inside and outside the courtroom—matters.
- Consider the proceedings from a juror’s perspective. Routines and processes that make sense to attorneys and judges might be unnecessary or even detrimental when trying to connect with jurors.
For example, Chip discovered that when jurors show up for orientation, they’re repeatedly thanked for their service and reminded of its importance. By the time they actually make it to trial, if the lawyers then repeat the same message, it almost sounds disingenuous. This repetition may also turn jurors off by underestimating their intelligence, their intuition, or their ability to quickly grasp the facts presented to them.
Rather than starting off on the wrong foot and potentially boring jurors, you might consider simply digging into the case.
When it comes to presenting evidence, there’s a fine line between using repetition to benefit your case and potentially harming it. You don’t want a salient fact to escape your jury’s attention, but you also don’t want to hit the same points over and over, and risk boring your jurors or, worse, insulting their intelligence. In this particular domestic violence case, the lawyers hit the same information again and again, to ensure the jurors understood the significance of certain evidence.
- Be sensitive to jurors’ needs. Because this case involved domestic violence, the attorneys needed to inquire about potential jurors’ experiences with domestic violence to ascertain their ability to impartially serve on the jury.
But how does one delve into such a sensitive and personal issue? In this case, the jury pool members were asked for a show of hands to indicate if they or their loved ones had had experiences dealing with domestic violence.
Think about that for a second. You’re asking people who are in an unfamiliar environment, surrounded by strangers, to raise their hands to announce that they’ve had experience with domestic violence. People aren’t likely to openly share intimate information in such an unfamiliar setting.
When dealing with such sensitive matters, we attorneys need to be prepared to accommodate jurors’ individual needs. For instance, in this particular case a written questionnaire could have been provided to prospective jurors before they were called to court. Then their experiences with domestic violence could be discussed discreetly with only the lawyers and judge.
Potential jurors would likely be more forthcoming with relevant information if they knew they could provide it in a private, respectful setting.
- Allow notes. Judges take different stances on whether or not they allow jurors to take notes during a trial—we think it’s best if they do allow note taking. Especially during a long case, or one that requires a lot of witnesses.
When jurors make a note of certain facts, it allows them to mentally move on and process the next piece of information presented to them. Moreover, if jurors are allowed to write down important points in the case, lawyers will be less motivated to repeat those facts again and again, allowing them to better connect with those jurors rather than risk insulting their intelligence.
Also, notes make for a more efficient process. In this domestic violence case notes were allowed. When it was time to deliberate, the jurors immediately pulled out their notes to list all the things they agreed upon or disputed.
- Juries function best as teams. As an Ohio civil litigation attorney, Chip couldn’t help but mentally compare his assessments of ideal jury candidates—based on his limited knowledge of the facts of the case—with those who ultimately were chosen.
In the decades we have been practicing law, we’ve followed every major theory in jury selection—everything from the Myers-Briggs Type Indicator system to the philosophy of “deselecting” jurors who would be bad for your case.
Our experiences in court have led to the conclusion that rather than focusing on jurors who will be good or not good for your case, it can be more productive to choose jurors who you think will work well together as a team. At first, the attorney will nominally be the leader of that team, providing guidance and information; later in deliberation, the jurors will take over and choose a foreman to lead the team and collectively reach a fair verdict.
Applying that strategy to the domestic violence case, Chip found that for the most part the people who were ultimately chosen for the jury got along fabulously as a team: They were dedicated to the task, paid close attention to the information presented to them, and shared thoughts that other people had not picked up on.
- Jury instructions shouldn’t be an afterthought. While it’s true that lawyers shouldn’t underestimate the intelligence of jurors, that doesn’t mean jurors can’t benefit from lawyers’ guidance, especially when it comes time to give the jury instructions for deliberation.
In the domestic violence case we’ve been discussing, neither the prosecutor nor the defense attorney discussed the jury instructions in any detail during their closing arguments—and that omission nearly affected the verdict.
During deliberation, although the jurors seemed to conclude that the defendant was innocent, their initial interpretation of some unclear wording in the jury instructions briefly led them to believe that they would have to vote guilty anyway. After a bit of discussion, the jury members were able to interpret and understand the instructions correctly, and voted unanimously to acquit the defendant.
It’s easy though to see how one small misinterpretation could have led to a vastly different outcome. It’s crucial, therefore, for attorneys to make a special effort to explain the instructions during closing arguments, when the information will be fresh in jurors’ minds.
A valuable opportunity
Being able to participate as a juror was a rare and valuable experience for Chip—and for Cooper & Elliott. Hopefully, more trial lawyers will be able to have that opportunity in the future, because the view from the jury box offers a rewarding learning opportunity for those looking to better connect with jurors. We’re grateful to be able to add what Chip learned to our bank of knowledge and experience so that we can ultimately use it to better serve our clients.
The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.