Posts
A trial lawyer’s “performance” in the courtroom is unique among professional efforts in its ephemeral and unappreciated quality. Ironically, every word that is uttered is transcribed verbatim, but unless there is an appeal, no one will ever read it. It would be easier to get your friends and relatives to look at pictures of your vacation.
Months or even years of preparation may be invested into the trial of a case. During the trial, a lawyer may forgo all other activities to be devoted body and soul to the effort, even to the point of losing sleep and weight. Unlike an actor or musician, the result of that effort is witnessed by no more than a dozen people or so, and it is really only the six who ultimately make the decision that matter (which may often include one of the alternate jurors).
Nobody volunteers to listen to a trial lawyer. The Judge and the court staff are paid to be there. The jurors receive a summons and appear under threat of legal penalty if they do not appear. Yet once they are chosen, the jurors become imbued with the power to make a decision which will affect the lives of strangers and will have the force and effect of law. Right or wrong, the decision they make will represent justice for the parties to that case.
From the beginning of voir dire (or more likely from the time it is first anticipated), until the verdict is returned and perhaps even longer, the trial lawyer is obsessed with the jury.
That’s not hard to understand. In any given case our success or failure will be determined by the jury. They are the sole source of any sense of approval or rejection. During a trial, everything we do or say is conceived and executed for the sole purpose of persuading those six people that at the end of the case they should find in favor of our client. Make no mistake; any effort to win a jury trial is synonymous with winning over the jury.
Unsurprisingly therefore, books have been written about how to select a jury. People earn a living as “jury consultants” advising lawyers what questions to ask and which prospective jurors to accept or reject. A substantial body of research has become available based upon the behavior and responses of “focus group” jurors and interviews of actual trial jurors in the immediate aftermath of their decision, all in an effort to aid an attorney in identifying and selecting jurors who may be more receptive to his client’s proof, and perhaps more importantly, identifying and excusing potential jurors who would be incapable of finding in favor of the client based upon life experiences, relationships or firmly held beliefs.
What an awesome responsibility it is that we thrust upon ordinary citizens. If the process had no history, one might question the wisdom of such a method. Yet it has been essentially unchanged since this country was founded, and for literally hundreds of years before that.
A famous author by the name of Anna Quindlen wrote an essay entitled “Duty? Maybe it’s Really Self-help” about her own experience with jury duty[1]. The courtroom she says is “undoubtedly a place in which trust is put squarely in human beings” with all due respect to the inscription in most courtrooms that it is “In God We Trust”.
Those in whom this trust is reposed endure much; hours of waiting, tedious questioning (sometimes personal) to determine bias or interest, days or weeks of intense listening and the sacrifice of attendance at work and other activities. At the end, they have a decision to make which may be difficult; there may be disagreements among them from which somehow a consensus must be reached.
Yet Ms. Quindlen’s perception is that “…service on a jury remains perhaps the only public service that, for all its shortcomings, its inconveniences, its impracticalities, still has the power to elevate an ordinary citizen.”
She also opined: “Serving well on a jury requires the highest level of human nature, the part that is thoughtful, intelligent, empathetic and fair.”
It is because of the sacrifice and the good intentions of every juror that a lawyer feels gratitude to those who served, even if they disagree with or are disappointed by their decision.
A lawyer should never blame the jury for an unwanted result; it should be viewed as a lesson – there was failure on the lawyer’s part to make things sufficiently clear or to provide all of the information the jurors needed, or perhaps an error in voir dire in allowing one or more people to serve who were too strong willed or adverse to the client’s interests, and sometimes, perhaps in taking the case to trial at all.
No comments:
Post a Comment