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Duty Calls

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Steve Johansen must have a demeanor that trial lawyers trust. How else to explain why Johansen, called for jury duty three times, was chosen each time–twice for short, one-day criminal trials and once on a civil case that lasted three weeks?

Yet Johansen has one credential that might have given many litigators the jitters: He’s an attorney and law professor. For a long time, that would have been enough to send him home from the courthouse. But lawyers are sitting on juries more often, and many–like Johansen–relish the chance to learn how jurors make decisions.

Johansen says he’s eager to know what influences jurors, what evidence sways them and how they go about deliberating and reaching a verdict.

“The thing I was most impressed by in all three cases was how seriously [the jurors] took their job and how carefully they tried to follow the judge’s instructions,” says Johansen, a professor at Lewis & Clark Law School in Port­land, Ore.

Johansen isn’t alone among his lawyer colleagues. At least 40 states allow lawyers to serve on juries, a steady shift from earlier times when many states excluded lawyers from jury pools, according to a report last year by the International Association of Defense Counsel, a Chicago-based advocacy group. Only seven states exclude lawyers, and a few more give judges wide latitude to excuse them, the report says.

The rationale for barring lawyers was related to fears that they would dominate the proceedings, leading to a verdict that is essentially decided by a jury of one, with other jurors deferring to the lawyer’s presumed superior knowledge and ability to evaluate the evidence. But many now consider that little more than an old wives’ tale.

“Years ago, that may have been a hard-and-fast rule, but now it depends on the lawyers’ personalities and the area of law they’re in,” says Chicago trial consultant Dan Wolfe, a lawyer who is president of the American Society of Trial Consultants.

For example, Wolfe says, he might hesitate to recommend a litigator, particularly one who practices in the same area of law as the case at issue, such as medical malpractice. But he would have little problem with giving a thumbs-up to a tax lawyer or someone who practices intellectual property law, for example, because they are unlikely to have personality traits that would dominate the discussion.

In addition to allowing attorneys to learn a thing or two to help improve the system and their own cases, when lawyers show up to do jury duty alongside truck drivers, teachers and accountants, it helps to break the perception that the legal profession holds itself above the law, Wolfe says.

In his 18 years of experience helping trial lawyers choose jurors, Wolfe says he has seen lawyers in the jury pool only a handful of times. When lawyers appear, he says, they are evaluated based on their answers in voir dire just like any other prospective juror.

Though the evidence is mostly anecdotal, many lawyers say they have been pleasantly surprised by the caliber of debate among fellow jurors. A few report frustration with a system that seems to fail to give laypeople the legal tools they need to make sound, evidence-based decisions.

Johansen’s experiences are typical. The first jury heard a criminal case about a man accused of molesting his granddaughter. The testimony was wrenching, Johansen says, but the jury paid close attention and didn’t shy from it.

When the jurors were sent to deliberate, the first thing they agreed on, Johansen says, was that the entire family of the victim and the accused could use counseling. Then the jurors got down to discussing the evidence. At first, he says, the group was split. One faction focused on the need to stop child molestation; they were inclined to give the benefit of the doubt to the alleged victim. The rest argued that the jury’s job was to set aside emotion and public policy issues and focus on whether the prosecution had proved that the grandfather had molested the girl.

Over time, he says, as the first group spent their emotions and regained their composure, they agreed that the evidence in the case simply didn’t add up. Johansen com­pli­ments the judge on explaining the concept of reasonable doubt to the jury.

“He said, ‘Think of it as the certainty with which you’d make serious decisions in your own life.’ Everybody seemed to have a grasp of that,” he says. Ultimately, the jury delivered a not-guilty verdict.

In Johansen’s second case, a man was charged with fire­arms violations. The evidence was straightforward, he says, but the jury still took the time to review testimony and make sure the prosecutor had done his job before finding the defendant guilty.

“They were determined not to appear to rubber-stamp the prosecution’s case,” he says.

Experiences Vary

Denver attorney and law professor David I.C. Thom­son was also impressed with how carefully fellow ju­­rors weighed the evidence in reaching a verdict in a criminal case he sat on four years ago.

“I had always believed that the jury system works, even in very complex cases–that a random pool of people can ferret out the truth,” Thomson says.

Thomson says the jurors elected him foreman because they knew he was a lawyer and they trusted him to make sure they were “doing it right.” They seemed relieved to have someone who knew how to contact the bailiff when they needed something, and who would keep track of the evidence and make sure the verdict sheets were properly filled out, he says.

But while the other jurors were glad to assign him the administrative tasks, they did not abdicate their deliberative role, he says.

“I tried very hard not to overdo my role as foreman or as the only lawyer in the room. There was not a big sense of deferral to me. I didn’t want that responsibility,” Thomson says.

Thomson says some of the jurors were surprised that the case took as long as it did, and that much of the presentation of evidence was slow and methodical–not at all like what they see on television programs like Law and Order.

He found that the jury wasn’t swayed by theatrics or appeals to emotion. They simply wanted to hear all of the evidence and decide what they believed to be true, he says.

“A lot of attorneys are always looking for the magic bullet. ‘I’ll always do this, and that will give me credibility with the jury.’ But it’s not like that. People from all walks of life can smell bull—-. It’s about whether you’re telling them the truth, whether you’re being honest with them,” Thomson says.

In his case, he says, jurors simply wanted to talk through all the evidence and make sure they were doing the right thing. He came away feeling that his belief in the jury system was vindicated, he says.

Afterward, Thomson talked to other lawyers about his experience.

“It’s good for an officer of the court to believe that fundamentally in the system,” he says.

But that sort of thoughtful deliberation was not the experience that Anna M. Jackson had when she served on a medical malpractice jury in Baton Rouge, La.

From the beginning of voir dire, Jackson says, the attorneys seemed to be giving the case the bum’s rush. Both lawyers asked a few very perfunctory questions. When Jackson told them she was a lawyer who was employed as a federal judge’s law clerk, neither attorney asked her which judge she worked for or whether she believed she had any conflicts of interest with the case. Other jurors were chosen after similarly lax questioning.

The case was a bifurcated medical malpractice action, and Jackson’s jury was charged only with determining fault, not damages. The plaintiff was a woman who had been injured falling out of a chair in her hospital room. Her main allegation was that hospital personnel should have strapped her into the chair, given her condition, which included an inability to control most of her muscles.

During the case, only Jackson and two other jurors took any notes, although all jurors were provided with paper and pens. When the group was sent to deliberate, Jackson says, it was immediately clear that most of them had no idea what they were supposed to do.

“They seemed to think they were just supposed to go in there and vote their gut reaction to the case. They had no idea they were supposed to review the evidence and answer the questions the judge gave in the instructions,” says Jackson, who works in the agricultural mediation program and teaches legal writing at Southern University Law Cen­ter in Baton Rouge.

So Jackson began to lead the group through the evidence, pointing out inconsistencies in some witnesses’ testimony. When others would raise points not based on evidence, she would try gently to guide them back to the jury charge and the questions they were to answer.

Though she worried that she was having too much influence, Jackson says she felt that if she hadn’t spoken up, the group would have ended up a hung jury, based on its initial 7-5 vote. She became the default foreman after the jurors’ first choice deferred leadership of the discussion to her.

After about four hours, the judge called the jury back into the courtroom to ask how deliberations were going. Jackson says she felt the judge and the lawyers looked at her as if to say, “We put you on this motley crew for a reason. Can’t you get this done?”

Eventually, the jury returned a verdict for the plaintiff, a result that seemed to surprise both lawyers, Jackson says. She attributes much of the jury’s confusion to poor voir dire and the lack of any attempt by the lawyers or the judge to connect with the jurors and make sure they were following the evidence. The judge on the case had been called out of retirement to fill in, she says, and both lawyers seemed to have been going through the motions.

Basic Values

That idea of connecting with the jury was echoed by other lawyers who have served as jurors. Susan Mitchell, a lawyer in Dillingham, Alaska, served on a jury several years ago when she lived in Roxboro, N.C.

“I learned that lawyers need to understand that these [jurors] have basic values. No matter how you spin the case, they’re going to revert to their basic values in making decisions. You’ve got to acknowledge that. You must bring in a theme that appeals to their values,” Mitchell says.

For example, Mitchell says, her case involved a woman charged with rape for allegedly offering sex with an 11-year-old girl for drugs. The girl was lured to the bedroom of a trailer where she was jumped by five men while the wom­an waited in another room. Under state law, someone who provides substantial assistance in the commission of a crime is deemed also to have committed it.

But she points to the values the jurors brought to the case–abusing children is wrong, drugs are bad, people who use drugs often take advantage of others–as elements that trial lawyers need to address.

Not only does a prosecutor need to hammer on those themes, Mitchell says, but a defense attorney must also acknowledge those values and then show the jury how the evidence fails to prove that the defendant clearly violated them.

In this case, the defense argued that the woman didn’t realize what she had agreed to, and once she figured out what was going on, she entered the bedroom and rescued the girl. Mitchell says the defense lawyer was trying to show that the defendant ultimately did the right thing.

Mitchell says she also learned that jurors don’t like testimony to be interrupted by multiple objections. They want to hear both sides of the story, and a lawyer who repeatedly objects can leave the jury with the impression that his cli­ent has something to hide.

In Mitchell’s case, despite fairly thorough voir dire, one juror turned out to be a problem. During deliberations, the woman seemed to grow increasingly withdrawn from the rest of the group, Mitchell says. Finally, the woman admitted that she was uncomfortable judging others for their failures.

Eventually the court learned that the woman had a serious criminal history–she had passed bad checks. She was dismissed, but because the alternates had already been released, the case was declared a mistrial.

Mitchell says she and the other jurors felt frustrated that they would not be able to finish their jury service. Some were angry that the woman had waited so long to admit her history. Mitchell says she believes the troublesome juror was embarrassed to tell the truth during voir dire. She says she wishes the judge had been clearer in telling jurors that they have the right to speak to the court privately if they have something they’d rather not admit in the courtroom.

“We really felt like we’d been cheated out of completing our service,” she says. Nevertheless, she says the professionalism of the other 10 jurors restored her faith in the jury system.

“I learned that the lawyer’s nightmare is not true–jurors are not just back there drawing straws or flipping coins. They’re doing what they’re supposed to do,” she says.

Nor do jurors want to be led into issuing embarrassing verdicts, Mitchell says, citing as an example the public reaction to the infamous McDonald’s coffee case. In that case, a woman was severely burned when she spilled hot coffee in her lap while driving. She won a large judgment from McDonald’s after claiming that the fast-food giant failed to properly warn customers how hot its coffee was.

Many criticized the result as absurd, saying that a grown woman shouldn’t need to be told that coffee is kept very hot, and that the woman’s injuries were her own fault. That perception still resonates among jurors, Mitchell says, and they worry about the notoriety that may accompany a verdict. A lawyer seeking a personal injury verdict needs to acknowledge that jurors are skeptical of awarding money for injuries that they believe common sense could have avoided, she says.

“You need to distinguish your case right off the bat. ‘This case is not like that. There are good reasons to award damages here,’ ” Mitchell says.

‘You’re On Stage’

Johansen, the lawyer who has been on three juries, says he found that sense of duty and seriousness of purpose remained strong even when the case lasted a long time.

The third case Johansen heard went on for three weeks. It was a contract dispute between a business and its commercial landlord over asbestos removal. The jurors got to know each other well, he says, and would often chat and joke during breaks.

Several jurors laughed about the aw-shucks personae adopted by the defendant’s big-firm lawyers, who were apparently trying to relate to the jury. The jurors saw through the hokey approach and privately imitated the lawyers’ phony folksiness, Johansen says.

Jurors also noticed some of the lawyers’ clothing and often commented on what they wore. Still, he says, it was the evidence, not behavior or attire, that sealed the defendant’s fate.

“Be aware that you’re on stage when­ever the jury is in the courtroom. They notice things. Be consistent in your behavior and be aware of your demeanor,” Johansen says.

Ultimately, though, this may have been another case where lawyers failed to acknowledge jurors’ core values, Johansen says. The defendant started in a hole, he says, because even the laypeople on the jury were aware that asbestos can cause cancer.

Jurors thought both sides wasted time calling experts, adding little to the jury’s understanding. While the lawyers focused on filling in details, the jury thought that each successive expert said essentially the same thing as the previous one, Johansen says. “You’ve got to tell a story to the jury. It’s got to be true and honest, but it’s also got to engage them,” Johansen says.

Johansen says he also learned that it’s critical for lawyers to be respectful when questioning adverse witnesses. Trust the sophistication of the jury to recognize inconsistencies, he says. Don’t badger the witness to drive home an obvious point. Jurors don’t like to see anyone humiliated, even people they think are lying.

Mitchell agrees. “Respect your jurors. Let them know they’re the most important people in the courtroom and you’re not going to try to use smoke and mirrors. You’re going to be honest and trust them to do the right thing.”

Margaret Graham Tebo, a lawyer, is a senior writer for the ABA Journal.

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