A Jury with My Peers
California Lawyer

A Jury with My Peers

April 2006

In Pro Per

A Jury with My Peers
By Paul Delson

I think it was comedian Chris Rock who joked that the only people who are selected for jury duty are those too stupid to figure out how to get out of it. Let's face it, few people want to serve on a jury. When I received my summons, my second reaction (my first being unprintable) was "I'm a lawyer, they'll never pick me." Wrong. Seated in San Francisco Superior Court as part of the first panel of prospective jurors, I listened to the judge explain that this was a civil action for malicious prosecution. Then the judge asked, "Are there any lawyers in the panel?" My hand shot up like an eager third-grader. Just tell me where I get my parking stub validated. After I told the judge that I was a business lawyer and had no trial experience (I've practiced transactional law for 20 years), I braced for interrogation by counsel. Silence.

During voir dire, as trial counsel exercised their challenges and dismissed jurors raced for the exit, I wanted to waive my arms. Hello! Remember me, the business lawyer? I know the secret handshake. You couldn't want me on your jury, could you?

Apparently, they did-as well as five other men and six women of varying races, ages, occupations, and educational backgrounds.

During the next nine days, I learned more about trials than my civil procedure class or reruns of Law & Order ever taught me. Some litigators might even find these lessons helpful.

Connect with the jury; be professional and personable, and acknowledge your foibles. Jurors know that trial lawyers are human, and therefore flawed. Although the lawyers I observed could be eloquent, insightful, and compelling, they were also nervous, disorganized, and boring.

Although you can do little to avoid delays, thank the jurors for their patience. Despite moments of drama and comedy, jury duty is tedious. Jurors wait a lot-both during sidebars and during ten-minute breaks that last two hours. I estimate that we were outside the courtroom 40 percent of the time.

Make sure your closing argument ties together all loose ends. Whether or not you are a lawyer, cases can be difficult to follow. A lawyer would initiate one line of questioning, and then-whether due to the restrictions of motions or objections by opposing counsel-change to another line of questioning, without ever concluding the original one.

Minimize the number of exhibits, and highlight any relevant sections of documents submitted to the jury. Jurors are intimidated by a large number of exhibits, particularly contracts and pleadings. My fellow jurors wondered if they would have to read all of the exhibits. As the only lawyer on the jury, I wondered if I would have to explain them.

When emotional testimony is interrupted for any reason, return to the questions that elicited the emotional response. Even though a judge presides over the trial, the court reporter controls its pace. Even emotionally charged testimony would come to a stop if the reporter wanted a break or needed a witness to repeat his or her testimony more slowly.

Be aware that better jury instructions will improve the quality of deliberations and, ultimately, the quality of verdicts. Deciphering the jury instructions is difficult. We received more than 30 pages of instructions. Many instructions were obtuse or contained terms that were defined elsewhere. I had bad flashbacks to my first year in law school. (I applaud the recent efforts of the state Judicial Council to make jury instructions more understandable to the general public.)

Acknowledge that jurors can be intimidated by large sums of money and the responsibility for its allocation. Having the power to determine someone's economic fate is daunting.

Be confident that jurors take their responsibility seriously and reach what they believe to be fair and sound verdicts. Jurors are good at discovering the truth. Despite my initial fears about our ability to process the evidence, resolve the conflicting testimonies, and apply the jury instructions, my fellow jurors rose to the challenge. The unemployed grocer identified contradictions in a witness's testimony. The housewife spoke eloquently to the emotional damages claimed by the plaintiff, and the city worker discovered important language in the documents he reviewed.

Jury duty is not a waste of time; in fact, it can be very educational. Every attorney should serve-at least once. Even Chris Rock can't argue with that.

Paul Delson (Paul_Delson@AMAT.com) is director of legal affairs at Applied Materials in Santa Clara.

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