The litigator’s life is not an easy one; advocacy is at least as much of an art as a science. We take our clients as we find them—we don’t pick them; they pick us. And we are stuck with the facts, and the evidence, as they are; and the range of conundrums people find themselves in is limitless. And we must try to impress our client’s point of view upon whatever judge or chancellor the voters (or president) have chosen for us, or whatever jurors have been summonsed under threat of prosecution to come to the courthouse to serve. We are constantly striving to improve, but it is hard for us to know how the fact finders will react to our presentation. We can try to read the fact finders’ faces, but who knows how accurate that is? How do we know what they will find persuasive? How do we know what will be counterproductive? Do the jury instructions matter to them? Will this or that strategy be effective? What is it like? Sure, you can try to interview jurors once they are released from their oath, but then you hear only what they are willing to tell you, from the ones who are willing to talk to you—or the judge may refuse to allow it, even as much as three months after the trial is concluded. Bernie Pazanowski, “No Juror Interviews for Lawyer Three Months after Trial,” Bloomberg Law, May 4, 2018. So we listen to the war stories and we read the articles and we attend the seminars. But most of those are done by lawyers who share with you their best educated guesses. This was the state in which I found myself—until, that is, I got the chance to serve on a jury myself and to participate in, and observe, the process from the inside.
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