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Litigation Journal

Fall 2021: Discovering

True Tales from the Jury Room

Virginia M Kendall


  • Many trial judges have the pleasure of actually talking to jurors after they reach their verdicts.
  • These insights are sometimes shared with lawyers and other times kept within the confines of the chambers.
  • They want to know why you repeat everything so darn much.
  • Jurors evaluate your performance, but they rule on the evidence.
True Tales from the Jury Room
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In the federal building where I sit, my jury room is right next to my chambers. The back office where I work shares a wall and radiators with the jury room. Often when I am writing, I can hear the rise and fall of their voices. I cannot hear what they are saying, but I certainly hear the tenor. Bursts of laughter are always a good thing—the jury is getting along and enjoying the process of finally being able to talk about what they’ve seen and heard. Raised voices followed by long silences do not portend well. Nothing is more scintillating for a trial lawyer than trying to read the tea leaves of a jury: “Oh, she did not like him. Did you see her face?” “He would not even look at that guy while he was testifying.” Yet, many trial judges have the pleasure of actually talking to jurors after they reach their verdicts. These insights are sometimes shared with lawyers and other times kept within the confines of the chambers.

I gathered a posse of colleagues from the Northern District of Illinois who collectively have tried hundreds of cases, and I asked them to tell me their most frequent juror comments. OK, truth is, I hijacked the weekly coffee by Zoom, but they were surprisingly generous to me in spite of it. The comments began calmly enough, but by the 20-minute mark, the war stories began pouring in and laughter took over. So here, trial lawyers, are the top inquiries and comments made by jurors after verdict.

  1. “Did we get it right?” Jurors want to do the right thing. They are put together in a room with strangers, forbidden to talk about the case for days, if not weeks, until it is time to deliberate. They just want assurance that all of that attention and hard work did not go to waste. They want affirmation. Most judges validate them, not by saying that the judge would have decided that way, but rather by assuring them that the role they played was exactly what a jury of peers is about. Yet, one judge recalled meeting a juror on the street after a verdict for the defense in an employment discrimination case who was very upset. He said, “I did the wrong thing.” The judge recalled that she had allowed the attorneys to talk with the jury, and after that conversation, the juror (correctly in the judge’s view) saw that he had misunderstood the law. The judge said: “It was sad. Of course, I assured him that he shouldn’t worry because he did what he thought was right at the time—or something to that effect. But I’ve always felt bad about that case because the plaintiff’s cause was just.”
  2. “Why was I picked to serve?” It is hard to tell them the truth: You were the lesser of evils. You really were not selected so much as you were not stricken. You were the safest bet and so they did not strike you. You were the middle ground and not the fringe. That should make you feel pretty good, because you are the fair and impartial juror.
  3. They notice what you wear. One judge regaled us with this little gem: Her jury was worried about the prosecutor. She inquired why and was told, “Well, he stopped wearing his wedding ring halfway through the trial!” Sure enough, they had noticed this, and sure enough, their instincts were correct: The prosecutor and his trial partner were now an item. Yes, jurors notice your scuffed shoes, your crumpled tie, your mussed hair, and that blue plastic pen cap that you chewed on and twisted into contortions every day—and they keep a tally: 12 pens. They also notice your jewelry (wedding rings especially), and they look forward to your outfits if you are a spiffy dresser. If you get a haircut, change your hairstyle, shave your beard—you are the talk of the jury room. After all, they cannot talk about the witnesses, the case, or the evidence, so the lawyers are fair game.
  4. They notice how you treat each other. Jurors watch you like they are watching a movie. They observe the way you interact with your trial team. They notice when the older male attorney gets irritated with his female second chair, and—guess what—they do not like it. They question why no one helps find a document for one side when it is needed by the attorney at the podium. They notice teamwork too. The lawyers who help each other and are kind to each other make them feel good. They don’t like to see division on one side of the v. They are especially fond of lawyers who are self-effacing when some glitch comes up in the courtroom, like a computer display malfunction. They identify with those lawyers who are able to see the humor in certain situations.
  5. They want to know why you repeat everything so darn much. “How dumb do they think we are?” This is a common comment to me after jurors sit for many days listening to evidence. They tell me they understand, and yet the lawyers treated them like idiots. One woman told me, “Did they even keep track of what we do for a living after they selected us? I mean we have two schoolteachers, one PhD, and lots of college education combined!” I usually remind them of the burden of proof and how trial attorneys must meet that burden and, therefore, they need to make sure the evidence is clear. That usually calms them knowing that it was not personal. But the schoolteacher said, “OK, I get it, but still, we got it a long time ago. I could have reached this verdict three days ago.”
  6. They want to know why you did not call a witness they heard so much about. Often in civil cases, a particular witness is not called for a number of strategic reasons. In the jury instructions, jurors are told not to speculate about why someone is not before the court, and they are also told that each side need not present all the witnesses or all the documents that the jury may have heard about during the course of the trial. Jurors assure us they have not speculated; but when they are done and the verdict is in, they want to know why. They are curious why they did not get to see the document or hear the testimony of a person they heard so much about.
  7. They evaluate your performance, but they rule on the evidence. They are quite vocal about the performance of trial attorneys. They tell us who was a poor questioner, who was not prepared, who made mistakes. They even begin to learn the rules of evidence: “Wasn’t that hearsay?” They notice the stellar performances and want to know all about you. They commend preparation; after all, it is their time you are wasting when you are not prepared. And they doodle. Yes, they doodle a lot. Each juror is given a trial notebook, which is left in the jury room when they leave. Judges and their clerks clean them up afterward by ripping out the pages and keeping the rest. (This was pre-pandemic. They are not reused now.) A few favorites shared with me included a perfect caricature of one of the lawyers dressed in red cape and hands perched on his hips in true superhero fashion, titled “Captain A--hole.” Apparently, everyone agreed. Another judge shared a favorite doodle—a perfect drawing of the attorneys on trial . . . literally beating a dead horse.

Yet, the most reassuring comments that jurors make to me are that they decided the case based on the evidence, not based on the performances. Of course, a good performance can bring a case together so well that the jurors find the decision easy to make. But in the end, it is the evidence they discuss and weigh, and it is the evidence that they rely on. When they leave, most of us give them a certificate that shows that they served their civic duty. I tell them to hang it proudly on the refrigerator next to their children’s artwork. The parting comments are usually the same, “I was so upset when I was picked, Judge. But I am so glad that I served.”