Archive for the ‘Inside The Jury Room’ Category

Jury Selection, Brooklyn Style

Brooklyn’s county courthouse, 2008. Photo credit: me.

Two recent articles in Reason by its Editor in Chief, Matt Welch, raised issues about New York’s jury selection process and are very much worth discussing. Welch, as you’ll see, didn’t find the experience as amusing as my screenwriter-brother, or get any of the hoped-for excitement that my niece Ellen wanted, and certainly didn’t appreciate it the way I did when I sat jury duty many moons ago (and was selected).

So on to the main event: Welch. When I first read the first of his two articles in his libertarian oriented magazine, I was ready to mock, parody and lampoon his never-ending stream of whines, complaints, grumbles and gripes. That was my gut reaction, and it was going to be fun.

But there was one big point he made and one big point that he botched, and both are deserving of attention.

First, his take on the selection process: He bitched, whined, moaned and complained about the Brooklyn courthouse architecture, the dirty plaza in front, the security, and the ever-so-slow orientation and waiting to be placed in a voir dire pool to be questioned by lawyers. (How Jury Duty Almost Turned Me into an Anarchist)

When he finally gets there, he sounds like Arlo Guthrie showing up to his draft board after a long night of drinking — prepared to be injected, inspected, detected, infected, neglected and selected. In meeting the lawyers for the case, what type of mind set do you think he started with?

Is this stuff important, or just superficial belly-aching by someone looking for material to write about, as he did in his book about similar issues?

Answer: It’s important!! You don’t shoot the messenger because you don’t like the message.  He made a valid point that some jurors may be poisoned by the process itself, even before actual selection started. Anyone who practices law in Brooklyn knows we need vastly more room and judges.

And court administrators should take note, to the extent that they have the capacity to actually do anything about it within the tight financial constraints that the Legislature imposes.

Subway art, Borough Hall station where the courthouses are. Photo credit: Me.

Wouldn’t everyone — jurors, lawyers, judges, clerks and officers — rather be inside that great, big, new, shiny federal courthouse down the block? You betcha. It’s vastly more civilized, and jurors don’t start the trial phase, if they get there, feeling abused. The building itself, and the federal administration of it, oozes competence and justice (much to the chagrin, likely, of criminal defendants).

And feeling abused is important, for then the aggravations and irritations of the process itself may simply confirm pre-existing biases to the detriment of one side or the other.

Confirmation bias is a huge issue to deal with in jury selection (and the issue Welch botched). Because many people instinctively look for facts to “prove” the thoughts they had before hearing evidence, or reading a news story. They want to know that their opinions were “right.” This is most commonly seen in politics, where everything  on “the other side” is wrong.

Welch states that he wants to do the right thing, claiming near the outset of his piece:

Jury duty is a chance to bond with fellow citizens you might not otherwise meet, peek under the hood of our flawed judicial system, and do our small part to advance the noble democratic ideal of participatory justice.

And he also writes, in his own defense that:

…I would also say that within libertarianism there’s a broad appreciation that the civil system provides the kind of redress unavailable in places like Western Europe, for example. And at any rate, I don’t have strongly held opinions about it; my strongly held opinions are about the criminal justice system.

But when I look under the hood of his writings, in just these two pieces, I see a pre-existing proclivity, and the concern any lawyer would have for potential confirmation bias if he were to sit in judgment. Describing the case as he first hears about it in the jury selection room, he writes:

It is, to my chagrin, a civil trial, not a criminal one, involving the category of incident one might see advertised in a subway car.

Ouch. OK, he is entitled to his opinion for sure, regardless of whether I like it or not. But it’s hard to miss the underlying bias.

In his second piece, entitled How Lawyers Pre-Try Cases During Jury Selection, he tries to claim the voir dire process (and the jurors) are abused by the lawyers trying their cases in the room without a judge or evidence.

And he continues his complaints by dropping another clue as to his underlying feelings, calling plaintiff’s counsel a “Court Street Lawyer” with a link to a derisive description.

Moses with the law, at the entrance to the Brooklyn courthouse. 2008. Photo credit, me.

Now the vast majority of people will say, and likely believe, that they can sit fairly and listen to evidence, if the question is put to them directly. But this is a very superficial question, and ignores the underlying biases a juror may have. And that, in turns ignores the very legitimate concerns that such jurors will engage in confirmation bias as they listen to the evidence. This is what the trial lawyer needs to worry about, regardless of who they represent.

Welch himself knows about confirmation bias. On just the 4th page of his book The Declaration of Independents, he writes with co-author Nick Gillespie:

You may have heard of confirmation bias, whereby people tend to notice and believe whatever rumors, news stories and quasi-academic studies confirm their world view.

But seeing it in others is altogether different than seeing it in the mirror.

It was during that second piece, that he argued that the lawyers were looking to get rid of all the potential jurors with expertise. But this is not what trial lawyers do. We look to get rid of those with deep-seated biases, because we worry that such people will simply look for evidence during a trial to confirm them.

One example of what Welch thinks is an attempt to argue the case in the jury selection room and condition the jurors is the common question trial lawyers ask when talking about money and damages, “If you thought the injuries were substantial would you hesitate to bring back a substantial verdict?” But I (and so many others) ask it because I want to know about a political bias — do they have any feelings about one-size-fits-all damage caps? I would consider that information to be pretty important. So would my adversary.

And the reverse is also true when discussing the issue of damages, and is also asked: If the plaintiff shows only minimal injuries would you have any problem bringing back a minimal verdict? I’ve yet to meet a defense lawyer that is a potted plant. (The wise plaintiff’s lawyer asks both questions – asking about both the substantial and the minimal.)

Another example of bias are potential jurors who work in the medical field, sitting in a medical malpractice case. Are these people automatically excused due to their expertise?

Some would be inappropriate due to subconscious concerns about what their co-workers would say if they brought back a plaintiff’s verdict. It’s the lawyers job to ask about that bluntly and make the juror ponder it.

Yet others might acknowledge that they have seen all manner of bad things happen in a hospital. So dumping medically educated jurors or keeping them could go either way.

And more important than the medical practitioner is the parent of one. For now emotion/bias is even more likely to be a factor as the lawyers fear this juror seeing their own kid as a defendant.

Thus, Matt Welch’s two Reason articles are useful: Useful in describing the oft-times miserable experience that some jurors have, so that court administrators and legislators that hold the purse strings can address them and so that lawyers can appreciate what these potential jurors have gone through before the first questions are even asked.

But it is also useful in ways Welch might not have appreciated, as a good example of seeking out the underlying biases that potential jurors might have, and addressing head-on the concerns about them engaging in confirmation bias as they listen to the evidence.

Addendum: As I re-read this piece this morning while sitting in that same courthouse, just after publishing, I remembered I had written back in 2008 about the highly scientific method that I use for jury selection: Who Sits Jury Duty? (The Turkewitz Beer Test)


McDonald’s Coffee Case, 20 years Later — And Why It Is Still Important

Stella Liebeck v. McDonald’s, a/k/a The McDonald’s Hot Coffee Case, continues to be in the news despite the fact it was tried 20 years ago in New Mexico. 20. Years. Ago.

It was in the news two years ago with the documentary Hot Coffee.

And it pops up this week via postings at Abnormal Use and Overlawyered, among other places, claiming there are myths that need debunking, as if 20 years of analysis wasn’t enough.  Even I’m bored with the subject, and this type of case fits in my wheelhouse, and is especially important to anyone that tries cases in front of juries.

Was this a frivolous suit because hot coffee is supposed to be hot? Or was it a perfectly reasonable case of an excessively dangerous product (scalding coffee) with an inadequate warning as the jury found? Should the case be better known, and summarized, as Hot v. Scalding?

You know what? My opinion doesn’t really matter. And yet I talk about it every time I pick a jury. Every. Single. Time.

Why? Because people form opinions based on headlines they see in the papers, be they digital or paper. People don’t form opinions based on run-of-the-mill cases because those hear about them. Only the outliers make headlines (which is often compounded by lousy reporting).

And so I bring the subject up, time and again, asking how people feel about this ancient and (in)famous case. I don’t try to change their minds. I don’t try to argue that case. And that is my point.

All cases are different. We all know that intellectually, but it is the emotional part of the brain that lawyers need to worry about. No matter which side of the -v- we happen to be standing on, we want to know– we need to know — if there is some preconceived notion about the overall subject (lawyers, litigants and lawsuits) that the person might have.

If a potential juror is going to have an opinion or emotional reaction (that they will admit to) it is likely that the McDonald’s coffee case will bring it up.

I’m bored with the actual details by now, yet I talk about it all the time. And so should you if you are picking a jury.

It doesn’t matter what you think. It only matters what they think.

Another Turkewitz Sits Jury Duty

Ellen Turkewitz

Ellen decides to crop her brother out of the shot.

Another family member sits jury duty. Niece Ellen Turkewitz now joins brother Dan and Mrs. NYPILB giving their bird’s eye view of the process, which is altogether different than what we trial lawyers see.


When I got the notice to serve jury duty a few months ago, I was really excited– As a Law and Order fan, I had visions of courthouse showdowns and action packed trials.

I woke up on Thursday morning in the midst of a pretty terrible cold. I trekked to the courthouse and found a line of 40 people deep waiting to get in… in the pouring rain. The security team working the x-ray machines were moving at a glacial speed, barking orders at those trying to pile into the building to avoid the downpour outside.

Once I was seated in the “jury duty holding pen,” I awaited instructions from the clerk monitoring the room. You think your job is a snooze? Can you imagine telling a group of frustrated, wet and cold people over and over again that they needed to sit and wait until their name was called? To be fair, the clerk did crack a few jokes attempting to make the situation a little less dull.

By far the most interesting part the experience was watching other people and their reactions to the clerks’ instructions. “New York City has no one day trials. If you get chosen, you will be on trial for more than a week. If this is a problem, go to the other courthouse to reschedule your date,” he says.

Cue groans and eye rolls. About 20 people stand up and shuffle back into the rain. “You cannot serve if you don’t speak English.” About 10 more people get up and leave ( my question? How did they understand that last sentence if they don’t speak English?)

“You cannot serve if you are a convicted felon” comes his next line. At this point everyone giggles and looks around to see who will stand. Sure enough, about 10 more people get up, including the Burberry clad girl next me. Humm… makes you wonder.

In the midst of the clerks’ instructions, people kept going up to his desk to ask him questions. I was silently sceaming at them to sit down and wait for the clerk to finish his speech– I couldn’t believe that people thought it was okay to interrupt him mid sentence to ask a personal question!

Around 10:15 the clerk received the first case. He began to call out the names of selected jurors, but mine was never called. I was bummed. I was looking forward to hearing a case and living out my Law and Order dreams. He told us to sit tight and he would let us know when the next case came in.  Around 12:30, we were given a two hour lunch break and told to return at 2:15. The fun part of jury duty had begun!

When we returned from lunch, the clerk repeated his instructions to be patient and wait for the next case. Out came the books, laptops and newspapers. At 2:45 the clerk announced that there would be no more cases that day and we were free to go… until the next day. I was at a loss of what to do with myself! Who gets out of work before 3pm?!

When I woke up Friday morning with an even worse cold, my first thought was “can I call sick to jury duty? Who pays my salary if I do? Will I have to go back next month to repeat this tedious process?” I dragged myself down the court house, waited in the pouring rain (again) to go through security, and took my seat in the waiting room. The clerk told us no new cases had come in yet that day and he would update us later.

As I battled my runny nose I noticed one very important thing- There were no tissues! You would think that the city of New York could spring for some Kleenex if they were going to hold us hostage for the day. Thankfully, at 12:15 the clerk announced that NYC was so safe that there would be no more cases that day and we were free to go (for the next 6 years!).

While I was slightly disappointed that I never got to hear a case, my desire for a nap and some dayquil overpowered everything else.

Do I feel like a made a difference in the justice system? Not really. But it was an interesting two days of people watching and I have offically completed my civic duty for the next 6 years.

Should Jurors Be Allowed to Ask Questions at Trial?

Peter DeFilippis

Peter DeFilippis

Out in Arizona, Jodi Arias is on trial in a high profile case in which she is charged with the murder of her lover, Travis Alexander, after a day of rough sex. He’d been, according to news accounts, “shot in the head, stabbed and slashed nearly 30 times and had his throat slit.” She claims self-defense.

But what jumped off the page for one of my brethren of the New York bar, Peter DeFilippis, is that jurors were allowed to ask questions. That isn’t something we see too often around these parts.

Without further ado, I turn my blog over to the talented DeFilippis as a guest blogger, who after 24 years of practice, has something to say on the matter….

The jurors in the highly publicized Jodi Arias case recently submitted to the court over 100 questions for the defendant to answer even after the prosecutor spent days grilling her over every last detail in connection with her self-defense argument. Arizona is one of just three states that allow jurors to pose questions to witnesses after prosecution and defense lawyers have finished their questioning. From the perspective of someone who’s spent some time in the well of the courtroom, I wish New York judges would in the interest of justice, allow jurors to pose additional questions of the witnesses in civil cases even if one side objects to the practice.

A universally frustrating aspect to civil trials is that once jury selection concludes the lawyers can’t communicate with the jurors. Generally speaking, jurors sit quietly during the trial presentation, they are expected not to ask questions, and perceive their role during the trial presentation as receptive rather than actively inquisitorial. If counsel were to so much as say hello to the selected juror in the elevator it may land the lawyer and juror in hot water.

During the trial the silence between the attorneys and jurors can be deafening: jurors yearn to ask the lawyers questions and lawyers would love to know more about what the jurors are thinking about their cases. When we interview jurors after a case has ended they sometimes wonder why we did not ask witnesses certain questions or probe specific areas. They are surprised to learn that we are often prohibited by the rules from discussing or presenting many seemingly relevant facts or issues. For example, we cannot divulge to jurors whether or not a defendant has insurance coverage applicable to the claims of injury. Disclosure of this to the jury may potentially result in an instant mistrial.

One way to alleviate this tension is to allow jurors to pose and submit their own written questions to the judge after the attorneys have finished their direct and cross-examination questioning of a witness.  This would allow attorneys to clear up any issues, misconceptions or concerns BEFORE jury deliberations begin.

There is no New York rule prohibiting this practice. Rather, the case law says it is a matter left to the discretion of the trial court. Some judges will advise at the outset if they permit jurors to take notes and/or ask questions. In my trial experience, note taking is fairly frequently allowed, however juror questions of witnesses are rarely sanctioned unless all sides consent. I have made the request on several occasions, but when defense counsel balks, judges will usually not initiate the process though they may properly do so.

If allowed at trial, essential to the process is for the judge to ask jurors if there are any questions and explain the mechanism whereby they could ask questions, i.e., whether it be during direct or cross examination or when the witness is about to leave the stand or at some other time. I think informally allowing jurors to raise their hands and orally ask questions, without judicial screening or consultation with counsels, could be highly problematic. Our high courts have held this is not the best practice. Conversely, utilizing written questions lends itself to an orderly function as opposed to a hand rising session which might invite a cacophony, confusion or other courtroom chaos.  Also, forcing one side or the other to publicly object to a juror’s question would strike me as highly prejudicial.

Well thought out and manageable procedures exist and are codified in other jurisdictions, such as New Jersey, where juror questions are allowed (See, NJ R GEN APPLICATION R. 1:8-8) even if all sides do not consent. The court makes its determination after all parties have been given an opportunity to address the issue, but they need not fully consent for juror questions to be implemented. The questions are first written down by the jurors and then presented to the judge.

The judge then takes the attorneys into chambers for a conference about those questions. Argument and clarification are held beforehand between the court and attorneys outside the presence of the jurors.  The judge tries to work out an agreement by the attorneys as to which questions should be asked, and whether the form of the question proposed by the jury should be altered or modified at all. If there is not agreement, the court decides the issue on its own. If allowed, the judge reads the question, in original form or as modified, to the witness. Since the judge is screening the questions, clearly improper ones are not asked. Attorneys shall then, if desired, be permitted to reopen direct and cross-examination to respond to the jurors’ questions and the witness’s answers.

I think this process insures that the jury is better informed and makes its decisions based more likely on facts gleaned from testimony under an oath than on conjecture. The individual juror is presumably happier and more satisfied if inquiries are answered via live testimony as opposed to not at all or by speculation in the deliberation room (which is frowned upon by the court). Keeping jurors interested and engaged through this active participation in the legal process is of paramount benefit to the litigants and jurists. Perhaps it might increase attentiveness and help to mitigate the tedium and boredom often complained of in connection with serving as a juror on a trial (especially a lengthy one).

Hearing from the jurors in this manner also helps the attorneys to gain some insight into the jurors’ thoughts and hints of major concerns with the case. Savvy lawyers may alter the presentation of their side based on the questions they are receiving and cover missing areas. This may also head off jury confusion which often leads to unnecessarily lengthy deliberations or inconsistent verdicts.   A definite plus is the insight gained by everyone involved from learning some of what is in the jurors’ minds before they make their ultimate decision.

Based on the above points, I would urge New York State judges to consider allowing our jurors to pen and submit written questions of witnesses during civil trials, as codified in other neighboring jurisdictions. Further, they should promote this open, interesting and interactive procedure during their trials even without the consent of all sides, as defense counsel may oppose juror questions strictly as a display of caution or matter of custom. I feel increased juror participation will aid our judicial system in achieving its stated, well known, goal which is to seek to provide justice for all.

The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the  Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed!  OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner.  Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. MicrosoftBush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation pow­er­­house” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.”  Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t.  As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.

The Chinese Dissident, George Zimmerman, Bernhard Goetz, and Jury Selection

It happens time again like clockwork. An item appears in the press, and the facts behind the story are not clear. And yet people leap up to take passionate stands on the issue. Since the desire of some people to leap to conclusions is also important for jury selection, a short look at three high-profile incidents is worth exploring.

Item 1 comes from 1984 when white New Yorker Bernhard Goetz is approached by four black teens on the subway asking for money, while one of them wields a screwdriver. (The wielding of screwdrivers as a threat was an item in the press, not an actual fact of what happened.)  Goetz whips out a revolver and guns them down, seriously injuring all four. In a high-profile attempted murder case he asserted self-defense in an attempted mugging. The four teens claimed they were panhandling. Goetz was acquitted of all charges except the one for an unlicensed handgun.

But the one thing that really stands out in my mind 28 years later are the television images of the protesters outside the courthouse. Some screaming he was a racist vigilante that should be found guilty and some screaming he was merely defending himself and should be acquitted. These protesters shared things in common, besides the screaming: None of them actually saw what happened and none of them were listening to the evidence in the courtroom. They found their opinions based on what was already in their hearts and the information they cherry-picked from conflicting news accounts — some not even accurate, like the screwdrivers which the shooting victims had in their possession, but did not use in this incident.

Fast forward to Item 2, the shooting death of Trayvon Martin by George Zimmerman. In an eerie flashback to Goetz, we see people once again vaulting their way to opinions based on incomplete stories in the press. People take passionate sides on an incident where they are privvy to, at best, fragmented facts.

And right on the heels of Item 2, we go to today’s story of Chinese activist Chen Guangcheng who fled  house arrest to take refuge in the U.S. embassy. After the diplomatic two-step he was released with various promises, including staying in China safely. But right after his release into a hospital came stories that he wanted to leave China.

Once again we will see people leaping to take sides, this time in the political arena where spin is more important than facts. Because facts, in this case, are largely in the secretive hands of the diplomats involved. But that will not stop the leap of faith to criticism (or support) for the actions of the diplomats.

We see people like this in our everyday lives, the types that form opinions based on headlines instead of facts. Identifying such people in the speed-work of jury selection is the hard part, because these are the people who will decide cases before the facts are all in.

I have no easy answers as to how to accomplish that, as often we are left with just minutes per juror. But the time-tested advice of many to ask open-ended questions is one way to help ferret out the attitudes. Asking people “How do you feel about …” is more effective in eliciting valuable information than trying to indoctrinate them by asking them to agree/disagree with certain points. The more people talk, the better chance they will reveal something about their opinions and attitudes that might actually be useful in determining if they can sit fairly.

Chandra Levy and The Rush to Judgment

A guilty verdict came today in the murder trial of Chandra Levy. She was an intern in Washington who might (or might not) have had an affair Congressman Gary Condit ten years ago. She was murdered while in Washington’s Rock Creek Park.  Fox News, at the time, turned this into its summer story as All-Levy-All-The-Time trying to force Condit from office.

But that isn’t why I write on the subject. I write because, according to this article, the evidence at the trial of Salvadoran immigrant Ingmar Guandique, who was arrested last year and charged with the murder, was reported as thin:

Prosecutors Amanda Haines and Fernando Campoamor-Sanchez obtained a conviction even though they had no eyewitnesses and no DNA evidence linking Guandique to Levy. And Guandique never confessed to police. Prosecutors hung their hopes in large part on a former cellmate of Guandique, Armando Morales, who testified that Guandique confided in him that he killed Levy.

But that news blurb doesn’t mean I have an opinion on guilt. I wasn’t in the courtroom hearing the evidence. By contrast, peruse the comments of the article and look at the rush to judgment in so many different comments. People make up their minds, not on hearing evidence over the course of a trial, but on how some reporter distills it all down to a few sentences. Here are a few samples from the last 10 minutes (there area already over 2,000 comments):

This sounds fishy. No direct evidence—I doubt that this guy would have been convincted if he was a smiling white guy without tattoos. Yes, he committed other crimes, but that doesn’t make him guilty of this one by default. I’m ashamed of our justice system for this decision and I hope it is appealed and overturned.

I think it is weird there is no DNA evidence but at least this guy is going to jail so he won’t attack any more people, just think about what his other victims went through, very glad he is going to jail!

This guy is innocent and the justice system is guilty!!!!!!….what a bunch of stupid attorneys, judges and jury group…seriously??…any fool can see that he did NOT kill her based on NO evidence…the Levy family did not put closure in anyway on this situation…it just reopened the wound!

so how did he become the murderer…wheres the evidence?! I’d love to see it!

another sacco and vanzetti trial

This man didnot do it. The DNA belongs to the middleman of Condit. Fear for his life and bribe for his family made him accept the verdict.

Those knee-jerk reactions are familiar with anyone that has picked a jury. It’s the rush to judgment over “these kinds of cases” if you happen to have a routine sort of fact pattern, such as a car accident. There are many who have already made up their minds. Facts aren’t really important to some people, because they have already made an emotional investment by forming an opinion on the case.

And the job of the trial lawyer is to find out who these people are before they get a chance to sit.

July 2nd: A Day to Declare Independence (And Celebrate Juries)

Each of the last two years I have used July 2nd as a jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown.  John Adams thought that this was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I see no compelling reason to re-invent the wheel and re-write those two posts about why the day is so important to the jury system. So here they are:

July 2nd: A Day to Declare Independence (And Celebrate Juries)

United States of America Declares Its Independence (Jury Trials Are One Reason)

Have a safe holiday one and all, but do take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George…

The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

My Turn In the Jury Room (And Who Should Sit Jury Duty On What Kinds of Cases?)

In 1997 I sat as a juror. And a post by  Scott Greenfield on whether criminal defense attorneys would make good jurors in a criminal case, and the fact that I picked a jury last week and just re-told my experience to opposing counsel, leads me to today’s reflection on whether personal injury attorneys could sit fairly in a personal injury case.

The question can equally be asked, of course, about whether doctors and nurses can sit in malpractice cases, and you can follow this through for any other profession.

But first my experience: This was a criminal prosecution, the nuts and bolts of which were that two guys were walking down the street in midtown Manhattan peering into cars, while being trailed by two undercover cops watching the peering. One was on trial, and we weren’t told why the other wasn’t.

There were about 30 jurors in the pool, and I was the very last one to be questioned. And this was the interesting part: There wasn’t a single question on what type of law I practiced. Calling the questions perfunctory would be an insult to the concept of brevity.

The trial lasted two days, and consisted of the two perps stopping at a fish truck — yes a fish truck — and the cops watching from a neighboring deli while the defendant and his buddy tried to make off with the shrimp. In the middle of the afternoon, in the middle of midtown. They did not win any awards for genius that day, or likely,  any other day of their existence. One cop broke the tip of his pinkie grabbing the guy that was standing trial. That added a charge.

When we got the jury room, I spoke quickly before anyone had a chance to voice their opinion and dig into any position. I’ve had juries that were out deliberating for days, and I didn’t want anyone to stake out a position quickly, because changing minds after they are made up can be difficult.  I asked my fellow jurors to simply comment on one piece of evidence that they thought was interesting, without saying whether the guy was guilty or not.

That discussion gave him 30 minutes of deliberations, which I think we all later agreed was 29 minutes more than he deserved, but it was good to flesh out the evidence that we heard. Everyone wanted to do the right thing.

Afterward, I asked both the prosecution and defense counsel why they kept me. The prosecutor said she wanted someone that was smart for a slam-dunk case (though all she knew was that I was an attorney). Defense counsel said he liked lawyers, because lawyers were always looking for loopholes.

It was, I think fair to say, an experience any trial lawyer should go through. It’s good to appreciate on a first hand basis what happens on the other side of the jury rail.

My biggest reaction to the questions and answers that flew during trial, however, was the urge to leap over that rail, push the lawyers out of the way, and say “That’s not how you ask a question. Here, let me show you…”

But what of PI lawyers sitting on PI cases and docs/nurses sitting on malpractice cases and crim defense lawyers sitting on criminal cases?

My experience, both as a juror and as one that has spoken with thousands of picked and potential jurors, is that most people that get picked truly want to do justice. Most people. Though their visions of justice may vary quite a bit.

And the trick is, obviously, ferreting out the bad apples, which is to say, those whose ideas of justice may be vastly at odds with your client’s. Can the doctor sit on the malpractice case or the PI lawyer on the PI case (or the criminal defense lawyer on the criminal case)? Sure. Why not?

Do you think that plaintiffs’ personal injury attorneys  would be biased in favor of all plaintiffs? If you thought that you would be very wrong. Because we all see something that the public doesn’t see. We see all the reject cases that aren’t worth a damn. There was no negligence, or if there was, it didn’t cause an injury. Of if there was, the injury was too small to make it worthwhile. Or the potential client wasn’t credible to us. Reject, reject, reject. In the malpractice realm, I reject a healthy 95-98% of the time.

A juror has to know how to reject  a bad case, and this is something we are used to doing. In fact, if we don’t do it well, we face bankruptcy because it is our time and money that is being spent on the matter. The contingency fee system can be harsh that way. This tends to make us rather objective in evaluating suits.

And the doctors? Some can sit, some can’t. Some are so wrapped up in the politics of medical malpractice “reform,” drinking the insurance industry Kool-Aid, that they are too biased. Others have no problem sitting, as they often see the screw-ups of others, and some have been angry about those screw-ups.

So you gotta ask those potential jurors, since you only have three peremptory challenges to work with here in New York, to look inward. “How will you feel,” you ask the doctor, “To tell your co-workers that you brought back a verdict against a doctor, assuming you think the verdict is justified?” And you watch the reactions, the hesitancies, and listen for the word choices they make. Some are comfortable with it, some not.

Jurors pick themselves. Some can do it when the issues are close to their profession, some not. There’s little point being coy about it and ignoring the elephant in the room. You ask.

In Greenfield’s case, the judge excused high profile defense lawyer Gerry Shargel. Why? Mayor Mike Bloomberg sat jury duty. So did Rudy Giuliani. And Chief Judge Judith Kaye. No one is excused. If the lawyers think the person can’t be fair, so be it, but the idea of dismissing people just because of their occupation is something we don’t do in New York anymore. Because some of those potential jurors might turn out to be damn good ones.

Rand Paul: “Sometimes Accidents Happen” (And the Lesson for Jury Selection)

Kentucky’s Republican Senate candidate Rand Paul was critizing President Obama for critizing BP for the gulf oil spill, and this spilled out of Paul’s mouth:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,” Paul said, who is a darling of the Tea Party movement.

And that brings us to personal injury law since, on a day-to-day basis, we deal with wrecks and “accidents” all the time. And that brings us to the issue of selecting juries.

Some folks, like Paul, are quick to dismiss “accidents” as if they are a part of nature. And that is because the word is used in two completely different contexts; accidents that are avoidable and accidents that aren’t.

Take this example: A deer bolts onto a highway at night and collides with a car. I think that, in most circumstances, people would attribute that to an act of nature. But after the first “accident” a second car plows into the first. Is that also part of the “accident”?

Now we have multiple causes. And the primary cause of the second wreck — note that I don’t use the word accident here — is that the second car was simply following too closely to the first. This is the case in almost all rear-end collisions. Each driver has a duty to anticipate a problem and must be prepared to stop in time.

The operative legal premise here is this: Could the “accident” have been avoided with the exercise of reasonable care?

Vetting the Rand Paul types in jury selection is pretty critical, as they are more likely to simply shrug their shoulders with an “accidents happen” attitude. As we can see in the BP fiasco in the gulf, Paul doesn’t appear interested in whether the oil spill was avoidable with the exercise of due care.

So what does the savvy trial lawyer do to find these people in the jury pool? Answer: Let them talk. Ask open ended questions, not the yes-no types. Jury selection isn’t about finding jurors with the same ethnicity as your client, but finding out about their underlying value system.


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