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.
I had lived and practiced law in Memphis, Tennessee, for over 30 years but had never been summonsed for jury service. When I received my summons one day out of the blue, some of my colleagues expressed sympathy that I had been called to serve, but I was excited about it; I wanted to do my civic duty, and I also wanted to observe the process for myself. However, I figured the likelihood that I would actually get to serve on a jury ranged somewhere between “slim” and “none.”
So, on the appointed day, I sat in a jury assembly room, with what looked to be a few hundred fellow citizens, thinking I would not be there long. When my name was called, I lined up with a few dozen other members of the group and trooped over to the Shelby County Criminal Justice Center, to the courtroom of Judge Bobby Carter, and sat in the jury box.
Judge Carter welcomed us, told us a little about the case, asked a few preliminary questions, and then turned us over to the prosecutor and defense attorney for voir dire. I told them I am a lawyer and practice in the local courts, but that almost none of that has been in the criminal courts. I still expected to be excused, but to my amazement, after the strikes had been done, I was still there.
The jurors were a pretty fair cross-section of the people of Shelby County: There were four white males, four black males, one Hispanic male, and three black females. We ranged in age from a young adult to an elderly person.
The case involved charges of driving under the influence and reckless driving. The trial started on a Monday and finished on the following Thursday evening; due to the court’s scheduling needs, the case was tried for a day here and half a day there. We heard from numerous witnesses, some of whose testimony contradicted each other, and others of whom had internal discrepancies in their versions of the events. We deliberated for a few hours and rendered our verdict.
I have read a few other articles by lawyers who served on a jury, but their experiences were different from mine. For example, for one lawyer, the primary takeaway was that the jurors bonded over food that some of them brought to share with their fellow jurors. Another had an experience very similar to mine, but she thought the jury instructions were of critical importance; that was not my impression of my fellow jurors at all. So what did I learn?
- The jurors, and everyone else in the courtroom, took it very seriously. The jurors paid attention, as best we could—more on this later—and tried to do the right thing. To my knowledge, no jurors discussed the case on breaks or talked with anyone else involved in the case or posted about it on social media.
- Serving on a jury turned out to be, as you might expect, something of a hassle. For example, some jurors who are not familiar with parking downtown parked in the wrong places and had their cars booted. The food in the building was great, so long as you liked Subway. It was very difficult to plan for anything outside of the trial, because the schedule was up to the judge, and although he was very solicitous about their schedules, this caused real concerns for jurors with children or elderly relatives to care for. On the other hand, it was nice to have everyone else stand every time we came in or went out; it really helped to emphasize the importance of what we were doing. Because jury service was such a hassle, we appreciated being thanked for our service.
- It was sometimes surprisingly hard to hear testimony and to see documents that witnesses were discussing. The lessons here: Speak slowly and distinctly, and try to get your witnesses to do the same. Ask your witnesses to repeat testimony that you think might not have been heard or understood. Consider publishing key exhibits to the jury as they are introduced so as to give context to the testimony.
- Remember that to have a lawyer on a jury is extremely rare. I understood all of the legal terms and most of the police terms, but others did not. If something is being discussed that you think your jurors may be unfamiliar with, have a witness explain it; for example, no one explained just how big a 100-milliliter whiskey bottle really is, and most of us were unfamiliar with the metric system. Simplify jargon. Have witnesses explain acronyms. I imagine I was the only juror who knew that “FST” meant “field sobriety test.” Avoid “legalese” if at all possible.
- Annoying mannerisms are distracting and, well, annoying. Do not jingle change in your pocket. Try not to overuse “um” and “er” when speaking. Remember, the jurors are used to watching lawyer shows and movies all the time. Sure, we real lawyers are not regurgitating professionally written scripts, but try to work on your delivery, and unless you are a really good actor, don’t try to act!
- The jurors appreciated when the lawyers kept things moving because, let’s face it, compared with the screens that are so ubiquitous now, hearing a story told orally, especially with the inevitable downtime in a trial, gets boring. Stipulate to evidence as much as possible. Don’t make objections to questions or evidence that aren’t all that important.
- It is helpful to remember that witnesses tell whatever piece of the story they know, one after the other, and there are gaps and overlaps, so it can be very hard for someone who is a stranger to the story to envision the big picture as the trial goes along. If it would be appropriate, if you have a witness who knows “the big picture,” put that witness on the stand first or at least early, and have the witness turn to the jurors and impart the big picture to them. Pro tip: We jurors would have loved to have a timeline so that we could follow the sequence of events as laid out by the witnesses.
- The jurors were able to overlook minor discrepancies in the witnesses’ testimonies and failures of memory; the jurors understood those can happen to anyone. The smaller nuances were disregarded, and the jurors focused on what made the most sense on the bigger points.
- Opening statements matter; it was helpful to hear a summary of the expected proof in advance. Tell the jury the framework of what the proof will show so it will be easier to synthesize in the jurors’ minds as the trial goes along.
- Closing arguments matter, too. Summarize the proof, and don’t ignore that which is negative for you in the hope that it will go away; it won’t. Tie in the evidence to the burden of proof and standard of proof—and make sure you get them right. One of the lawyers in our case made a mistake and misstated the standard of proof. Everyone watches cop and lawyer shows on TV—all the jurors knew the correct standard of proof and noticed the mistake.
- For my fellow jurors, the jury instructions were not all that helpful. Think about it: To the average person on the street what does it mean to believe something “beyond a reasonable doubt”? But they got past it; they argued and voted for what they thought was right and made sense.
- And the number one thing I learned: The lawyers repeated their key points over and over; and had their witnesses repeat them over and over. (And over and over. . . .) Every juror, no matter the age, education level, or socioeconomic position, got the key points the first few times they heard them. The constant repetition became tiresome, and it was a major cause of complaints in the jury room.
So what was jury deliberation like? The first thing that happened was that I declined a suggestion that I serve as foreperson—I wanted to be just another juror. So another juror agreed to take that role.
We deliberated for hours about our verdict. I was impressed to see that everyone was allowed to speak and was treated with respect. Everyone knew that it was a serious case, and we considered the testimony and documents in great detail. I noted that virtually no one else could make any sense of the jury instructions as read by the judge, something that I have always suspected would happen. Perhaps it was because the issues in our case were simple, but I did not get the impression that the jury instructions were all that important. While we were respectful of each other, we didn’t become fast friends, but perhaps that’s because we didn’t bring snacks to the trial to share with each other.
Viewing it from the inside, I could see the genius in the jury system—having 12 of us, from different backgrounds, really did “average out” everyone’s inherent biases and points of view. Everyone took the job very seriously, as we knew the outcome would have serious consequences. And in the end, it was our unanimous verdict to convict. We got past the confusing jury instructions, contradictory testimony, distracting mannerisms of counsel (take the change out of your pockets! Don’t make loudly clicking a pen a nervous habit!), and all the rest, to render what I consider a just verdict. I was proud to have served with my fellow jurors and proud of the system.
And since then, I have made some changes in the way I practice, even for bench trials and arguments to a judge or chancellor: I try to speak very slowly, and then I slow down by half even from that, because I find that when listening to a recording of my voice, I am speaking more quickly than it sounds to me in the heat of battle. I try to enunciate my words very clearly (it turns out that speaking slowly helps with enunciation—who knew?). I try to lay out the events in a clear chronology, and I offer a written timeline where appropriate. I try to follow the maxim “tell them what you’re going to tell them, tell them, then tell them what you told them.” I ask witnesses to repeat themselves if I think there is even a possibility they might not have been heard or understood. I try to remember to have witnesses go back and explain jargon or terms of art in their business, and acronyms. I make sure that key provisions in documents are projected on a screen or at least passed to the fact finders and pointed out to them. I try to avoid legalese unless talking to a judge or chancellor, or when I have to use it, I explain it. And finally, I try to reconcile two mutually exclusive principles: I try to repeat my key points just enough—but not too much.
John Branson is a shareholder with Baker Donelson in Memphis, Tennessee.
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