Trial by Jury

I had a jury trial this week, and I’m happy to say that I won. I don’t really do very many of them. They are really an inefficient way to resolve disputes — except for maybe the alternatives are worse. When you think about it, the civil jury trial is our substitute for what, historically, was resolved through raids and blood feuds. People have a dispute. At least one side typically thinks he/she/it is entitled to something someone else has (usually money); and they simply cannot agree on a resolution.

Now, most of these things don’t go to a jury trial – at least not for me. I am normally either able to get the case thrown out on a motion of some sort or help reach a settlement between my client and the other party. And, particularly if your motions are denied, the structural pressure to settle cases is really pretty significant. It’s surprisingly awkward to go to a court ordered mediation and offer nothing or next to nothing. You are made to feel rude and like you’re wasting everyone’s time. Very often mediation is a useful tool — but when you are determined to have your day in court, it’s an expensive hurdle to be cleared.

The jury trial itself is, for the lawyers anyway, a very labor intensive process. I have a lot of respect for those litigators who do that kind of work week-in and week-out. The hours of preparation and organization required for even simple cases is fairly significant. When I do have one, my wife and I end up commenting on what a problem it would be for our family life if I was doing these kinds of cases more frequently.

Typically, the structure of a civil jury trial process will begin with voir dire – the parties have been given a jury list a couple of days before of the panel of potential jurors. Different courts have different approaches, but for Indiana state courts, I think it’s fairly common for judges to briefly introduce the matter to the jurors and thank them for being part of the process. The judge asks some very preliminary questions about basic items that might disqualify a member of the panel from serving as a juror. Then, he gives the lawyers greater or lesser amounts of latitude to question the jurors.

Ostensibly the process is for lawyers to probe jurors for information that might reveal a juror who is unable to evaluate the case in an unbiased fashion. All the strategy books, however, pretty much tell you that, even now, you should be framing and arguing your case — softening up the jury to see things from your point of view. In my mind, the voir dire is in some ways the most awkward because it is the least structured. And first impressions are so important – there is a decent chance the jury will be fairly persuaded before you even get to the evidence.

During the voir dire process each side gets three peremptory challenge where they can dismiss a juror for pretty much any reason. Each side is trying to divine which jurors will be favorable to their case through inexact proxies — “people who do this kind of work have these kinds of tendencies” and so forth. (Incidentally, the juror questionnaires have a question about favorite TV shows – “The Big Bang Theory” is a runaway winner.) For civil cases, once you have six jurors and an alternate, the rest of the pool is dismissed and the jurors are sworn in. (The job of an alternate has to be so frustrating — you aren’t allowed to participate in deliberations. That would be torture for me; particularly if I felt like the rest of the jury was missing something important. I like to make my opinion known. Hence, this blog.)

After that, the jurors are given the preliminary instructions – a basic introduction to what the case is about and how the process works. Then the parties can give opening arguments — which is and isn’t a misnomer. Technically, I think you aren’t so much supposed to “argue” as simply explain to the jury what sorts of evidence they will see. But, of course, you are framing that evidence in a way that supports your case; so there is an argumentative element in there by nature. There isn’t a bright clear line where descriptions of the facts stop and impermissible argument begins.

Then the plaintiff opens his evidence. This is witness testimony and documents. Depending on the case, introducing evidence in this way, may not create the most comprehensible narrative for the jury. If there was a series of events, you won’t take the events one-by-one, getting the account of each witness for that event — rather, you will get what one witness knows about all the events before moving on to the next one. The jury might have to wait for a couple of days to hear what another witness recalls of a particular event.

Generally, if a party calls the witness, that party’s questions will have to be more open ended; relying on the witness to recall and supply details — occasionally straying into unanticipated territory. This is followed by cross-examination. On cross, you can ask leading questions – which leads to much more narrowly focused responses. The attorney doing the cross examination does most of the talking, with the witness often just confirming or denying what the attorney says.

Technology in the court room has improved. One thing I really appreciate in the Tippecanoe County court rooms is a sort of opaque projector that displays documents on a big screen to the jurors. I think that’s very helpful when you are asking a series of questions to a witness about a particular document.

After the plaintiff goes through his or her witnesses and documents, the plaintiff rests and then the defendant goes through his or her evidence in much the same fashion. After the defendant closes, the plaintiff may or may not put on some rebuttal witnesses. (There were none in the case I recently concluded.)

Once the evidence is concluded, the next step is to hammer out the details of the final jury instructions. This is done outside of the presence of the jury and seems like part of the process that has a lot of room for improvement. Ostensibly, I think, this is done at the last minute because the final instructions have to be based on the facts that were introduced during the presentation of evidence. So, the sides exchange the instructions, often at the 11th hour. They are based on model jury instructions. However, a party is also entitled to have non-pattern language included if it is a correct statement of the law, implicated by the facts of the case, and not otherwise covered by the rest of the court’s instructions. So, quite often, you are faced with language that is supported by case law you, as an opposing party, only have very limited time to review. And the clock is ticking because you have a jury waiting. Even if you send the jury home for the night, you are racing to craft and present arguments about what the law is and is not over the course of an evening and perhaps the next morning. The court, with the help of the attorneys, then has to merge at least three sets of instructions – the courts and each party’s. (More if there are multiple defendants). The court has to throw out the instructions that are duplicates, exclude the ones that aren’t permitted, and modify others if they partially misstate the law or partially duplicate others. It is quite an editing job done on the fly. However, I think that much of it could be done earlier in the process — this would require the court to make earlier (if potentially preliminary) declarations about what the law is and would reduce a certain amount of potential gamesmanship by the parties.

After the instructions are settled upon, the parties make their closing arguments. The plaintiff goes first, followed by the defendant, followed by rebuttal by the plaintiff. My client thought this was very unfair that the plaintiff got to go first and last. In most cases, you can’t help but feel like the jury has made up their mind. Probably, you’d be just as well saying something like, “thank you for your time, please treat us fairly.” But, I have never had the confidence to pull that one. I tend to walk them through an outline of why my opponent’s version doesn’t make sense and mine does. I tend not to have a flair for emotional appeals; but I think I’m fairly good at showing the jury the world from my client’s perspective.

Then, when each side has made their arguments, the judge reads the final instructions, and the case is handed to the jury. (See this post if you’re interested in my experience as a juror.) Turning the case over to a jury is nerve wracking for a lawyer. You have been in control of the case for so long; have prepared so much; and now it’s out of your hands. A group of people you have only known for a couple of days will decide the outcome. You have no ability to address their arguments or correct any misunderstandings they may have. If they forgot about a key piece of evidence you presented, you have no way of reminding them of what it was. You are in limbo while the jury is out. You don’t know how much time you have – whether you and your client should just hang out or if you should go about your business until the court calls you to let you know the jury has returned with a verdict. You try to guess whether the time the jury has spent deliberating is a clue as to success or failure.

In this last case, the jury returned very quickly. I had gone to the Black Sparrow and ordered a beer and a pizza. It was about 1 in the afternoon, and the lunch shift waitress remarked that she had never seen me order a beer during the day. I told her this was a different sort of day. I’d had about half of my beer and two pieces of pizza when I got the call that the jury had returned. As a defendant, this was good news because it seemed unlikely that the jury had had time to do any math. I was cautiously optimistic, but still had to prepare my client for bad news. I also like to give my client instruction on how to comport themselves with either good or bad news. In this case, there was a tremendous amount of bad blood because my client felt like the opposing party was flat out lying about him. There is often a difference in perspective for any event, even where both sides are trying their level best to remember and tell the truth. This was not one of those cases. Someone was obviously lying. I very much believe my client was telling the truth – but I’m hardly unbiased and, at the end of the day, I wasn’t there when the event happened.

My optimism about the verdict notwithstanding, there was still a huge amount of anxiety during that period when you arrive at your spot in the court room and watch the jury file in. At this point, you get to see which juror was selected as foreman. Again, you try to figure out whether that is a good sign or a bad sign. The foreman hands the verdict form to the bailiff who hands it to the judge. Now the anxiety hits a crest. Fortunately, in this case, the jury found that my client was not at fault. Even though I was very happy with the result, it’s important to temper my enthusiasm at that point. Because, on some level, I felt bad for opposing counsel. These are guys you work with year in and year out and they worked every bit as hard as I did. I don’t know for certain the details of their contract with their client, but I suspect they were working on contingency and probably won’t get paid for all that work. Now, I know my client – angry about being dragged through the whole process – does not share my feelings about opposing counsel. But, I’m part of the system. I know that plenty of people on the other side of my cases probably have hard feelings for me.

The following days are spent recovering from the physical impact of the trial. First off, I need plenty of sleep for a couple of days. Then, there is the post-trial let down to deal with. Even though I won, there will inevitably be an emotional crash. Because that focus of so much hard work has suddenly been removed, I’ll feel out of sorts for several days. But, before too long, I’ll shake it off and have another war story in the books.