So news comes out that President Obama has skipped jury duty in Chicago. Is that a good thing?

Here in New York, it used to be that there were exemptions from jury duty for lawyers, doctors, and a panoply of others. Everyone and their brother seemed to have a legit excuse. The legislature killed that off, and now all the exemptions are gone. Rudy Guiliani famously sat jury duty while mayor, as did Mayor Michael Bloomberg and former Chief Judge Judith Kaye.

But how about the President?

On the plus side of having him sit, it promotes jury duty and the concept that power is dispersed among the people. The distribution of power among the citizens and away from the Crown was the very essence of the Revolution. The Declaration of Independence, once you get past its magnificent opening, leads into its bill of particulars regarding the usurpations of power by King George with this:

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

And among that list of usurpations is this:

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

And this is not just enshrined in the Declaration, but the Bill of Rights. The Sixth Amendment protects those charged with crimes and the Seventh Amendment guarantees juries in civil trials:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

There is little disagreement among the people of the need for the dispersion of power -- though oddly there are conservatives that wish to consolidate power among the few and call this "reform." This concept of greater government power has thus far been widely rejected. (I never really understood how conservatives that preach limited government wish to endow it with more in this circumstance, but that is an issue for another day.)

Notwithstanding the noble goal of jury duty, any lawyer that has spend 12 seconds in the jury selection process knows that many people want to talk their way out of it, even personal injury lawyers. But I have sat, as has my wife and my brother.

On the flip side of having Obama serve jury duty is the security problem, not just for the courthouse but for the nation as a whole as it requires the man with the button to be in one place for an extended period. Leaving aside the issue of distraction for the other jurors, the forcible placement of the President in one place could turn into a life and death problem for all of us.

So, while I am a huge fan of the jury system, when it comes to the top honcho, I believe that deferment until he leaves office is appropriate.

Labels: Inside The Jury Room

Over at Concurring Opinions, law professor Adam Benforado asks this simple question, after being called for jury duty:

For trial attorneys out there, I'm curious: would you rather have a law professor on a jury or a practicing litigator?

The question isn't really framed well. It is a popular misconception that lawyers get to pick the jurors that we desire. But it doesn't work that way.

We don't pick the ones we do want, but rather, do everything we can to make sure the lemons don't ever see opening statements.

Thus, peremptory challenges get used on the the potential jurors sitting with their arms folded and a scowl on the face, who nevertheless answers all the questions appropriately about how fair they can be.

You do your best to dump the bad apples and are stuck with the rest. That's jury selection in a nutshell. Picking between practicing lawyers or law professors isn't a choice many will ever get, and will be superceded by a million other factors.

But all other things being equal, I would pick the one I most want to have a beer with.

For more on that, see: Who Sits Jury Duty? (The Turkewitz Beer Test)

Labels: Inside The Jury Room

New York's high court today threw out a plaintiff's verdict in a medical malpractice case because the court refused the request of the plainitff to poll the jury at the time the verdict was rendered.

The decision in Duffy v. Vogel, authored by our new Court of Appeals Chief Judge Jonathan Lippman, came after a plaintiff's verdict of $1.5M in a medical malpractice case. He wrote:

In New York, we have long recognized that affording jurors a last opportunity individually to express agreement or disagreement with the reported verdict, is, when requested by a litigant, indispensable to a properly published, and thereby perfected, verdict.
...
Inasmuch as, under New York law, the honor of a request for a jury poll is a necessary condition of a "finished or perfected" verdict, it follows that in this State's courts the failure to poll a jury may never be deemed harmless. Harmless error analysis is a judicial device employed to sustain an already perfected verdict, not to perfect a verdict in the first instance.
...
The proper publication of a verdict in open court, so long deemed essential to assure the integrity of the verdict, is not to be cast aside as a mere formality on the theory that jurors are prospectively bound to act in accordance with their verdict sheet signatures.

The dissent would have held this to be harmless error.

Labels: Inside The Jury Room, Medical Malpractice

New York's jury selection rules have always appeared a bit Byzantine. They vary from county to county and at times from judge to judge. In one place you use the "Struck" method and may question 30 or more jurors at once, and in another you question just the first six (White's Rules). Sometimes lawyers immediately replace jurors when they are excused for cause or consent, and other times you wait until the end of the round when you do the peremptory challenges. Most places the plaintiff and defendant alternate each round as to who must exercise challenges first, and in some places the plaintiff is forced to go first in every round.

It was enough to drive an otherwise sane lawyer batty. But now some of that may change, as Chief Administrative Judge Ann Pfau has issued this guide for judges and lawyers on how to implement the rules. Are they standard now? Of course not. But with a guide, that everyone should print out and bring to jury selection, at least things may run a bit more orderly because the issues are more sharply defined.

Oddly enough, our courts still can't seem to standardize our method of selection, as the guide tells us:

The Uniform Rules for the Trial Courts provide for two methods of jury selection -- White's or Struck. Counsel shall be given the opportunity to select the method they prefer, provided that the court will select the method if the parties cannot agree.

You would think that, after a couple hundred years of practice with the jury system, we could at least resolve the simple issue of picking a system of picking.

I also have an issue with the timing of when potential jurors are replaced, either on consent or for cause. Do you handle those two categories on the spot (and then immediatey fill the vacant seat) or wait until you are off in the hallway just moments before you exercise peremptory challenges for cause? As per the guide:

In each round, consent excusals and challenges for cause of jurors 'in the box' shall be exercised prior to exercise of peremptory challenges and as soon as the reason therefor becomes apparent. When a juror is removed from the box for cause or on consent, that juror is immediately replaced, and questioning reverts to counsel for the plaintiff.

The problem with this system is that, when you kick someone right after they've uttered the magic words ("Does your client think the jury system is a lottery?"), you've also given information to the rest as to exactly what kind of story they need to tell to be bounced from jury service. While most folks can figure this out pretty easily, there seems to be little reason to telegraph just how easy it can be.

There are good parts as well. For instance, I will no longer be told to question 30 jurors in one hour, as I have been told to do on occasion. According to the guide:

Instead of setting time limits for questioning, the recommended practice is for the judge or [Judicial Hearing Officer], based on the consultation, to set only a general time period after which counsel should report on the progress of voir dire. In a routine case a reasonable time period to report on the progress of voir dire is after about two or three hours of actual voir dire and, if requested by the judge or JHO, periodically thereafter until jury selection is completed.

The guide also gives sharp definition to the Struck method, which has varied from place to place with respect to when challenges are used in various rounds. The court says that, if using this method, there is just a single round of challenges, to be exercised only after you have enough cause-free panelists to fill the jury:

After the general voir dire of the full panel, counsel's questions focus on the first 16 prospective jurors in the randomly selected panel. If any prospective are excused by consent or cause challenge after both sides have questioned the first 16, the questioning proceeds with the prospective jurors occupying seats 17 and higher until there is a total of 16 'cause-free' jurors.

I'd like to think that this guide is a work in progress and not a finished product. One, single, standardized system of selection throughout the state would most surely make life easier. And after a couple hundred years of practice, we ought to be up to that task.

And if you want the story on the artwork I've used for this bit, you can check it out here (But please excuse the horribly self-promotional text at the link. That needs to be re-written.)

Labels: Inside The Jury Room

Mrs. NYPILB sat jury duty last week She joins us today with a guest blog on her experience, with my occasional comments. That's her pictured at right with her knight in shining armor.
------------------------------------------------------

Last week was civic duty week. On Tuesday, November 4th, along with a record number of Americans, I cast my vote for a new President. On Wednesday, along with a few hundred of my fellow county citizens, I showed up for jury duty in White Plains, NY.

Eric -- the guy who normally writes this blog -- made fun of me as a I walked out the door at 8:00 am to arrive at 8:30 am in White Plains, as the summons proposed. He assured me that I would be the first juror there. [As my brother-in-law Dan was when he sat.] I chose to ignore him being that I'm always early in whatever we do and, well, he's always late. To my punctual dismay, I walked into a full room of prospective jurors listening attentively to a woman giving instructions about the jury selection process. I secretly couldn't wait to go home and tell Eric, "I was right and YOU were wrong!"

An elderly judge came in to tell us more about the process and the cases. He was quite genial and cracked some jokes -- most likely the same ones he uses 365 days a year. Then he told us of two interesting cases on the roster; one case was criminal in nature and could take up to three weeks and the other was a Med Mal case that could take four. You could feel the tension in the room as we all made silent prayers not to be picked for one of those. When the judge stated that anyone with vacation plans could be excused into the other room, I seriously contemplated lying. But, being the complete dork that I am, I became convinced that they would ask me for proof and then I'd be screwed into serving some Grand Jury case that would take months. So, I sat still, squirming in my seat.

My get-out-of-a-long-trial for free card came when the judge also excused anyone with children 12 and under.

Within 30-minutes, I was called into a separate room to undergo the voir dire process on what was described as a short civil case. I wasn't picked with the first round of jurors to be questioned but was asked to stay in the room. I listened to the Plaintiff's attorney methodically question each of the 12 potentials, at first with interest and then with cynicism, annoyance and finally complete and utter boredom.

[ET note -- Keeping it interesting after the first few is always a challenge. When I sense the boredom come on, I'll ask the next juror, "You've heard all the prior questions, what do you think I should know that is interesting?" When the jurors question themselves, the answers can be interesting.]

The case was simple. The Plaintiff was Verizon. The defendants were two contractors. One a GC and the other a sub-contractor who specialized in boring holes under the ground for excavation work. In a nutshell, while boring, the defendant(s) clipped a Verizon cable. Verizon said the contractors were negligent. The contractors claimed that Verizon was negligent due to the improper demarcation of where the wires in fact lied underground. It was the jurors' duty to assign blame.

Out of the first group of potential jurors questioned, the lawyers nixed a handful, which meant that more of us had to undergo a round of mundane questioning, including me. The lawyer handling Verizon's end of the argument was painful to listen to. I'm convinced it was his first case. He asked the same series of "yes" or "no" questions to each and every juror. When it came to my turn I had to bite my tongue not to say "Let me save you some time here. Yes, I have Verizon services. Yes, I've had problems with it. No I don't think my past problems with Verizon will prejudice my judgment in this case. Yes, my husband is a Med Mal/PI attorney but I don't think it's relevant in this case. Yes, I have little kids but my Med Mal husband has agreed to be home to get the kids off the bus this week so I can serve. So, take me, I'm yours."

[ET note: Yes and no questions in voir dire, are, of course, some of the worst. You learn virtually nothing about the potential juror. In such a situation, the question I would start with is, How do you feel about Verizon? And with yes or not questions, the lawyers can never conduct the Turkewitz Beer Test.]

Of course I didn't do that. While questioning me, the Verizon man seemed to want to find an excuse for me to not sit on his jury. After saying to me "well, won't your kids be upset if you don't put them on the bus," I looked him in the face and said, "they'll live for 2 days. This is a good time for me to do my civic duty and I'd be happy to serve."

I got picked. It was going to be a breeze. One to two days at the most.

Right before entering the courtroom, I found out I was an alternate. After taking the first seat in the front row, the Judge started reading us procedural directions. When I say "reading," I mean reading. All I could think of was Snoopy and the "Wa, wa, wa, wa, wa, wa" one would hear when an adult talked to Linus, Charlie Brown or any of the other Peanuts characters. In his closing directives, the Judge did the same. What's the point in reading us the directives if we can't understand what the heck is being said? My guess is that it's just to avoid any appeals based on improperly directing the jury.

I can't remember a single other situation in my life where I have been forced to be "taught" something and not allowed to interrupt with any questions. This was the hardest part of sitting on a jury. Every 10 minutes, I wanted to be like Horshack in Welcome Back Kotter -- "ooh, ooh, ooh" with my hand waving high in the air! Instead, I had to listen and decide who was liable without having all the information I needed. Hmm...maybe I shouldn't have cancelled those LSATs after graduating from Michigan.

[ET note: Some judges have experimented with having jurors ask questions, via a written submission to the judge.]

The funniest part of the day had to do with an incident regarding the court reporter. As he was typing away, every word uttered in the courtroom was magically transcribed onto a computer screen. This screen happened to be facing the juror box. There was one 30-second period where there was a pause in the dialogue and we all saw the Reporter check his email on AOL! Granted, it was the fastest email check I've ever seen in my life. Was he looking to see if his horse won the race? If his stocks were down? If he was gonna get laid later?

In the end, the trial was over in just a few short hours. I found the whole thing to be fascinating and was completely and utterly bummed that I was told to exit the courtroom and leave the building because, as an alternate, I was not needed anymore. I was not invited to deliberate. I had so much to say and nobody to say it to. I left with my tail between my legs. But once outside my tail started to wag when I realized that I wouldn't be called to do this civic duty again for six long years. Phew.

Labels: Guest Blog, Inside The Jury Room

Senator Ted Stevens of Alaska was just convicted of seven corruption charges. So when I suggested the other day about a deadlocked jury possibly leading to an acquittal, or at least a compromised verdict, I was wrong.

There was one juror that was having "violent outbursts" that I assumed was going to cause great problems. (And there was another juror that went home due to family problems.)

Will we get to find out what happened with respect to the two above jurors? Not right now. According to the judge:

The jurors have unanimously told me that no one has any desire to speak to any member of the media. They have asked to go home and they are en route home.

Of course, that often changes.

Labels: Inside The Jury Room

The news from inside the Sen. Ted Stevens jury room was not pretty: "Violent outbursts" from a juror. Essentially, if this juror has others in her corner on the merits, it almost guarantees a deadlocked jury. And a hung jury is good for a criminal defendant.

Here's the note from the jury room:

"We, the jury, requests that juror number nine be removed from the jury. She is being rude, disrespectful and unreasonable. She has had violent outbursts with other jurors, and jurors are getting off course. She is not following the laws and rules as stipulated in the instructions."

I've had juries out for days on end. But in civil cases in New York, we only need 5/6 for a verdict. I have my own theory on why juries fight and deadlock -- and how I tried to avoid it when I sat in the jury box some years ago and how I try to avoid it when I stand in the well-- and it can best be summed up in one word: Ego.

Nobody likes to admit they are wrong. Thus, when jurors stake out a strong position at the start of deliberations, a problem is created if there is a conflict. Someone will have to change their mind. Someone will have to appear "weak." That's bad. If you want someone to change their mind, you have to make it easy for them. The carrot works better than the stick.

How do you avoid the problem? When I sat jury duty on a criminal case, I grabbed the bull by the horns when we went in to deliberate. I suggested that we go around the table and, without saying if we thought the defendant was guilty or not, simply discuss a piece of evidence that was interesting. That was it. Thus, without having staked out any ground as to ultimate guilt or not, it would be far easier for people to be receptive to alternative arguments and evidence.

With that experience in my back pocket, I often take a minute during my own summations to discuss the importance of listening to others and being receptive to others. I will, on occasion, tell them bluntly why, discussing the problem of ego and changing one's mind. (Defense lawyers, by contrast, might be telling jurors they should stick to their guns, hoping for hung juries.)

Whether such cautions were given at the start of the Ted Stevens deliberations, I don't know. Presiding judge Emmet Sullivan has gave the jurors a pep talk, telling them they should "encourage civility and mutual respect" in their consideration of all the evidence. But it may be too late, as the threats of fisticuffs can easily kick in the ego factor that prevents people from changing their minds, and causes either a hung jury or one that is severely compromised.

Verdicts, sometimes, are more about ego and less about evidence than the litigants might have hoped.

Update:

• Stevens jury sent home, deliberations halted (AP)
• With Alternate Juror in Place, Judge Tells Stevens Jury To Begin Anew (CQ Politics)
• New Juror, New Deliberations (Huffington Post)
• Stevens Trial Just Gets Worse (National Review/AP)
• 
  
• Stevens Convicted (I Was Wrong)
  

Labels: Inside The Jury Room

My brother Dan, a screenwriter, sat jury duty this week in New York. He live-blogged the experience, for publication when it was over:
-----------------------------------------------------
Tales From The Juror
Thoughts, observations, and ramblings, from the jury room at 111 Centre Street.

8 AM
In an effort to make sure I'm there on time, I get there before the building is even open. Big mistake. Have to wait out on the sidewalk. The day is not off to a good start.

9 AM
In my seat in the holding pen, verify that there is indeed free wifi access. The day gets slightly better.

9:30 AM
The woman running the show, giving instructions:

"You'll notice, on my right, are vending machines, where you can buy snacks. We do not own these vending machines, so if you put your money in, and your snack does not come out, we are not responsible. And there is no number on the machine for you to call. But if it happens, we do allow you to shake the machines a little."

9:45 AM
Ed Bradley (who died 16 months ago), and Diane Sawyer narrate the introduction film, which is supposed to make us feel better about being here. But it's March 12, and half the people here are sniffling, wheezing and coughing. It'll be a miracle if I get out of here alive. I think it was jury duty that did in Bradley.

10:00 AM
There is a severe lack of hot-looking women in this room. All those years of watching courtroom based TV shows, I was lied to! How could TV let me down so badly? There will be no amusing stories to tell my children years from now about how I met their mother while we sent some guy to the chair. (Do we still use Old Sparky in this state?)

If I get picked on a criminal case, and the A.D.A. isn't smokin' hot, I'm going to kick Dick Wolf's ass.

(For those, like my brother, who probably don't know who he is, Dick Wolf is the creator of "Law & Order," a show which usually features an actress playing an A.D.A who looks like she was cast from a Victoria's Secret catalog.)

10:05 AM
My brother e-mails me the following note:

"DO NOT TELL ME ANYTHING ABOUT DETAILS OF THE CASE IF YOU ARE PICKED UNTIL IT IS DONE!"

Apparently my brother thinks I'm an idiot. I'd find him guilty so fast.

10:16 AM
First call for criminal jury selection.

10:18 AM
I didn't get called. Bastards.

10:23 AM
A cell phone goes off in the room. We were told to turn them off. The offender doesn't get yelled at. Damn. I thought it might be the first chance at some drama here.

10:28 AM
Civil selection call.

10:33 AM
Not called

10:35 AM
Next call. This group is going to another building. 60 Centre Street.

10:39 AM
Not called. Good. Don't feel like moving. If I'm going to be asked to hand out justice, let me do it without having to put my coat on.

10:40 AM
The guy behind me is loudly crunching through a bag of potato chips. He's driving me nuts!

10:41 AM
Civil panel being called.

10:45 AM
Not called again.

God help me if I every have to rely on some of these folks to decide my fate.

10:53 AM
My bit to help the system run smoothly includes instant messaging with my 18 year-old niece on spring break in Florida. How did people ever stand jury duty without computers?

11:17 AM
Working on my latest screenplay. The guy behind me is starting to read over my shoulder. He thinks I don't notice, but I do. Time to cause a scene? Humm...how bored am I?

11:21 AM
Taking a break from writing to do what jury duty is truly useful for: preparing for my upcoming rotisserie baseball draft!

11:29 AM
Another criminal panel call.

11:31 AM
I'm picked!!!

1:53 PM
Back from lunch. It's amazing how easy it is to get out of serving. The judge asks "is there anyone here who can't be impartial?" and 1/4 of the people raise their hands. All they have to do is say their name and declare "I can't be impartial," and they're gone. Wow. Of course most of them are full of it. You end up hoping those people get arrested for something and have to rely on a jury some day.

There is one prosecutor, and he is not hot. Dick Wolf, watch your ass.

11:00 PM
Home.
So I was sitting there in the voir dire, one of 16 in the box, and we find out what the case is. It's a drug case. Two Hispanic males from Harlem are caught in an apartment with 20 kilos of cocaine. That's a lot of coke. There's also an unloaded gun and a minor in the apartment, both of which add to the charges. Some jurors have already been chosen, they're looking for more.

All the lawyers seem determined to remind us this isn't CSI or Law & Order, it's real life. I'm not sure if they're being prudent or treating us all like idiots.

When the two defense attorneys started to question us, I was toast. One was hung up on the concept of using "entrapment" as a defense. Do we think it's a legit defense? My response was, it's meaningless as long as the cops followed all the rules they're supposed to follow, and didn't break any laws. At the end of the day, each person, no matter what situation they find themselves in, gets to decide if they're going to be honest and law abiding, or dishonest and crooked. I pretty much knew that would get me tossed. Not that it was my goal to get tossed, I just didn't like this guys' angle, and felt like speaking my mind. The other defense lawyer was pushing the line that the cops went in without a warrant, how did we feel about that. Of course it was mentioned that this was an issue for the judge to decide, that if he says the cops didn't need a warrant, then it was OK. But he got some people to say they felt funny about it.

Midway through the questioning, one of the court officers, an older gentleman, dozes off, with his hand on his gun. It did not inspire confidence. A few of us joked about it at lunch break, while waiting to go back in.

In the end, of the 16 of us questioned first, two were selected. I was not among them. So it's back to the holding pen tomorrow.

The good news is, we don't have to show up till 10 AM. Hot damn!

Day 2

9:50 AM
The holding pen is packed, but I find a seat in the front row. Time to sit and wait. Finally finish off the Sunday Times Magazine.

10:22 AM
They take attendance.

10:26 AM
Attendance over. They didn't call me, and a bunch of others who were in my voir dire yesterday. The woman says they'll try and track down our juror ballots. You do that.

10:45 AM
The missing juror ballots are found. I am now officially here. Oh boy.

10:54 AM
Casting my first jury duty vote: Snickers or M&M's?

10:56 AM
Rotoworld.com says Orioles pitcher Adam Loewen was scratched from his scheduled start Friday because of a sore shoulder. The team president says it's a normal result of his having undergone elbow surgery 9 months ago. I don't care, I'm still not going to buy him at the draft.

Such is the excitement of jury duty.

11:01 AM
It's amazing how quiet a room with well over 100 people can get. Reminds me of taking tests back in college.

The first day of jury duty, you actually look forward to getting selected. (at least I did) A little bit of excitement. A chance to do your civic duty. A chance to throw a bad guy in the slammer, or decide who really cheated who in some business deal gone bad.

The second day, all that crap goes out the window. Please, oh please don't call my name. Just let the clock run out and let me go home.

11:36 AM
First panel called. 19 people. Not me. Good.

2:25 PM
Back from lunch. The immediate area definitely needs a better selection of eateries.

Only a couple of hours to go, and my time as a good citizen is over. Which is great, as the guy behind me in the packed jury holding pen is snoring something fierce.

4:00 PM
It's over! With only one panel called all day, they've decided to cut us all loose. The guy setting us free decides to work on his standup routine.

"Some of you will be sad to be going home. (big laughs) Some of you will be glad. Just remember this: the last two days you had two-hour lunches. Tomorrow, it's back to grabbing a sandwich at your desk. Today, you strolled in at 10. Tomorrow, it"s back to getting up at 7 AM."

So there it is. My two-day odyssey through our judicial system has come to a close. I didn't get to send any bad guys to the old gray-bar hotel, like I hoped. Nor did I set free any wrongly accused innocents, as my brother reminded me was also a possibility. No courthouse romances, no shootouts, nobody in handcuffs, no weeping family members, no mobs of reporters looking for courthouse steps sound bites. No courthouse steps, for that matter, at 111 Centre Street. All in all a thoroughly boring two days, interrupted briefly by a quick story about 20 kilos of coke.

And to think; sometime soon, some lucky jurors will get to sit in the box and hear about the ex-governor's whoring around. I bet that won't be a boring jury duty experience. Why couldn't I get called then?

Labels: Guest Blog, Inside The Jury Room

Over at the Drug and Device Blog, Beck/Herrmann have a theory that they want tested with a scientific study:

It strikes us that the plaintiffs in pharmaceutical product liability cases are always striking the educated jurors.

They go on to state that if a health care professional, who they'd love to keep on the jury, survived the preliminary screening, then the plaintiff inevitably strikes that person. Their sense is that "plaintiffs typically prefer less-educated juries, and, in particular, routinely strike health care professionals from serving on juries in pharmaceutical and medical device product liability cases."

While most of my experience is in the medical malpractice field, that is close enough for me to answer, and it comes from someone who has picked a few dozen medical malpractice juries in addition to picking juries and trying cases in many other personal injury matters.

So here is my take on jury selection, New York style. While the rules change from county to county, one of the "popular" methods is called the "struck method" used in New York County in which 30 jurors are questioned for an hour. Yes, a whole hour for 30 people. That gives you all of two minutes per person, inclusive of your canned spiel. The other side goes, then you step out of the room to strike people from the entire panel. Each side gets just three peremptory challenges, where no cause needs to be identified. The first six left after all challenges (for cause or not) become jurors, and the next two to four are alternates.

As you can clearly see, this is not exactly an atmosphere conducive to delving deep into backgrounds. When I get a doctor, nurse or other medical practitioner, I approach it like this:

• Jurors pick themselves. Some medical personnel feel they can't sit on these kinds of cases, and others have no problem. How do you feel about it?
• If you found for the plaintiff, how would you feel telling your co-workers after it was all over?
  

While they answer you watch the body language to see if they are comfortable or not with the issue. Some are, some aren't. (I asked the same question, by the way, to Dr. Rob "Flea" Lindeman in a recent interview.) Many medical workers see bad things at work and know that all is not peachy with their profession. Simply being in the profession doesn't disqualify them.

If you have one that looks uncomfortable, you then compare that person to the blue collar guy sitting there with his arms folded across his chest scowling at you and the very idea of your complaining client, but claiming he can be fair. I'll take the waffling doctor over the scowling steelworker every day of the week.

Jury selection isn't really about selecting individuals you like, but trying to find the few people in the room trying to subvert the process due to their prejudices without telling you, and getting rid of them. Anne Reed and Scott Greenfield both addressed this issue recently in discussing the limitations of the science (or voodoo) of jury selection.

Beck/Herrmann over at Drug and Device seek out empirical evidence to support their thesis that plaintiffs simply bounce doctors or the educated without delving further, but it escapes me as to how such a test could even be created, because jurors are necessarily measured only against the person next to them. That guy with the scowl doesn't appear in empirical data in any manner, shape or form.

My gold standard is The Turkewitz Beer Test: Whether I would be comfortable sitting down and having a beer with the person and talking. If the answer is no, I try to get rid of them. Human beings are far too complex to pigeonhole based solely on occupation or eduction.

See also from this blog:

• Personal Injury Lawyer Talks Himself Off Jury Duty (2/6/07)
• New York Juries "Too White" According to Study (6/22/07)
• Mayor Bloomberg Sitting Jury Duty (8/7/07)
  
  

Labels: Inside The Jury Room

Blawg Review #127 is up at Anne Reed's jury-related Deliberations. In what it surely one of the best round-ups of the year, she gives us the "17 Best Tips For Voir Dire."

To get to those tips, she brilliantly analyzes individual law bloggers to see what kind of jurors they, or their subjects, would make.

When they hand out Rookie of the Year honors for 2007, Anne will be a top contender.

Labels: Blogging, Inside The Jury Room

Credit New York Chief Judge Judith Kaye for the idea. Last week the United States Postal Service unveiled, at the New York County Courthouse where I picked my first jury and tried my first case, Jury Duty stamps.

Now it's been a few years since I've used stamps in the office, finally buckling to using the utterly boring Pitney Bowes stamping machine. But mine is a small practice and I get to make the rules, so now the stamps will be coming back for some uses.

I feel pretty strongly about the jury system. After all, other than the draft it is the only time the government asks you to drop what you are doing and check in for mandatory civil service. In New York, everyone is called for jury duty, no exceptions. The idea of empowering a select group of robed politicians to make decisions that affect liberty, or to decide who was right or wrong in a civil dispute, was too much for our nation's founders. Anyone who read about the crying Anna Nicole Smith judge and the very deliberative Scooter Libby jury can appreciate this concept.

So we have not one, but two parts of the Bill of Rights that guarantee those rights: The Sixth Amendment to protect those charged with crimes and the Seventh Amendment to guarantee juries in civil trials:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

And this is important because there is no shortage of big business type folks looking for ways to strip that right away, either by forcing arbitration without jurors, or creating some kind of "health courts" or other devices to let the biased decide matters instead of the unbiased.

Of course, there are always some who want to avoid jury duty at all costs. (No doubt they would feel differently if they were the ones in the middle of it all.) But sticking in my brain is a story of one of the greatest juries of all time: The one that tried William Penn in the 1600s, which I recounted back in February while pulling together some quotes on jury nullification.

Perhaps these stamps, if widely used, will be one tiny way to remind recipients of one of the cornerstones of our country's liberty: Power shall not rest with the few but with the many. And that is what jury duty is all about.

You can buy the stamps here. And attorneys, more so than anyone else, should be using them.


(Eric Turkewitz is a personal injury attorney in New York)

Labels: Inside The Jury Room

It wasn't always this way. Automatic exemptions from jury duty in New York went to many different professions , including attorneys, doctors, and cops. Until it changed in 1995. Mayor Rudy Giuliani famously sat jury duty in 1999 (and was picked for a civil case). Chief Judge Kaye was not-so-famously called the same year (and was not picked). I was called (and picked in a criminal case), in 1997. Celebrity jurors are routine.

Now it is Mayor Mike Bloomberg's turn, as the New York Times reports. He showed up yesterday, in the same historic Manhattan Court that I tried my first case and a few others. He showed up in room 452. He waited. He was dismissed at the end of the day, unchosen. Today, he is there again.

According to the Daily News:

"I'd be one voice out of six, but I have a strong personality," Bloomberg said. "You'd have to ask the other jurors what they'd think."

And the question every trial attorney asks: Would you keep Hizzoner or bounce him?

Update: Mayor Bloomberg was dismissed today after serving two days. He was not selected.

Labels: Inside The Jury Room

Citizen Action of New York, a government watchdog group, asserts that Blacks, Asians and Hispanics are severely underrepresented in Manhattan jury pools, according to a study they conducted.

As per their press release, while Whites make up 1/2 of the Manhattan population, they make up 3/4 of the jury pool.

"Our survey showed that jury pools have a much higher percentage of whites than their share of the population, while blacks, Hispanics, Asians, and mixed race people are enormously underrepresented," Bob Cohen, Citizen Action policy director and the report's lead author, said in a statement. "This means that defendants in criminal cases and plaintiffs in civil proceedings ... can't be sure they're going to get a fair result from the courts."

An executive summary and the full report are also available from the group.

More at:

• New York Daily News
• Reuters
• New York Press
• Sui Generis (added 6/29/07)
  

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Inside The Jury Room

From Atlantic County New Jersey--

JUDGE: Is there any reason you would like to be excused from service?
JUROR: Yes, I would like to speak to you at sidebar.
JUDGE: Sure
JUROR: I fear for my life
JUDGE: You should not fear the defendant
JUROR: No, not the defendant...I fear Juror Number 2. I am currently dating her soon-to-be ex-husband and she does not know he is dating so soon.

Courtesy of a recent Jur-E Bulletin newsletter put out by the National Center For State Courts.

Labels: Inside The Jury Room

Juries can be fascinating. I had noted earlier about the one juror who refused to wear the red Valentine's Day shirts. And I also noted that her excusal by the court was likely bad for Libby, as stubborn jurors are more apt to hold out longer for their beliefs, destroying unanimity.

Now we know why she was excused, and based on this snippet from a blog posting by another juror, those traits of individualism seemed evident:

As I said, the original 16 jurors - 12 regulars, four alternates, got along famously with one exception. Let's call the exception RJ (Runaway Juror). She broke the first rule by flashing another juror a page in her notebook during court testimony. Fortunately the message, Look at that eye candy in the third row! wasn't top secret stuff. She also bothered Court clerk Mattie about the lunch menu, and inserted herself into others' conversations. All that was easily tolerated. But one day before we were called to court, she approached three jurors and semi-whispered, "My mother told me that reporters are writing stories about how we...." Before she could say more, all three told her to "STOP."

So this Monday morning, Court clerk Mattie (who hadn't repeated a single item of clothing in the first three weeks of the trial, according to our fashion consultants) calls RJ into the hall. A few minutes later, she's collecting her belongings. "It was just something I heard," she says. We call goodbyes from a distance. As soon as the door closes, four jurors pump their fists.

Labels: Inside The Jury Room, Interesting Cases in the News

The Libby jury was methodical in its analysis and deliberations.
The Smith judge was "blubbering" as he created a media circus.

I've never seen a better argument for juries.

Labels: Inside The Jury Room, Interesting Cases in the News, Odds and Ends

As the Scooter Libby jury deliberates, now with the loss of one very independent minded juror who refused to wear a Valentine's Day shirt, my thoughts turn to jury nullification and the comments of one New York jurist (and a new blog on the subject):

Many years ago, I tried a difficult medical malpractice case before Justice Stanley Sklar in New York. When Justice Sklar discharged the jury (we settled during deliberations) he told a story that I remember today:

In the 1600s William Penn was arrested for an "illegal" speech. The jury acquitted Penn, which enraged the colonial judge. So the judge imprisoned the jury for a few days to help "persuade" them to reach a verdict more to his liking. The jury refused and their imprisonment was subsequently overturned. Thus, the power of the jury was established, free of the opinions of the judge.

Juries are supposed to be finders of fact, and apply those facts to the law as given by the judge. But sometimes juries don't like the law and do what they want. While in civil cases a jury verdict can sometimes be reversed, in criminal cases a defense verdict ends the case for all time. A few quotes to ponder:

The jury has the power to bring a verdict in the teeth of both law and fact. -- Oliver Wendell Holmes, United States Supreme Court Justice

The jury has a right to judge both the law as well as the facts in controversy. -- John Jay, 1st Chief Justice of the Supreme Court

The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge -- U.S. vs. Dougherty, 1972

It would be an absurdity for jurors to be required to accept the judge's view of the law, against their own opinion, judgment, and conscience. -- John Adams

For more on jury nullification, I found a brand new blog on juries from trial lawyer and jury consultant Anne Reed and her blog entry: The Rare Ruby-Throated Jury Nullification

Labels: Inside The Jury Room, Interesting Cases in the News

Speculating on jurors is a full time job for trial lawyers, regardless of whether the matter is personal injury or criminal law. Today is no different as a juror is excused in the Scooter Libby trial during deliberations.

Why is this particular juror important? Well, on Valentine's Day, she was the only juror not to be wearing a red shirt with a heart on, an odd event that I noted previously in Scooter Libby's Jury and The Valentine's Day Shirts.

Thus, the speculation would be that a stubborn juror (she refused to go along with the others in a "fun" thing) has now left. Since stubborn jurors are generally good for the defense, that would be bad for Libby.

See also:

• A Peek in the Jury Room (this blog)

Labels: Inside The Jury Room, Interesting Cases in the News

The ABA Journal has a great article on jury deliberations...with a camera in the jury room watching how it all happens. A couple snippets from A Peek in the Jury Room:

About 40 lawyers and judges at the ABA Midyear Meeting in Miami on Saturday got a peek into the deliberations of 50 actual civil juries handling trials in Arizona. There is one hitch. The findings come via researchers who, to get the court system and jurors to go along with the project, agreed that no one else ever will see the videotapes. And no identifying information will be released that would point to which juries and which cases.

This article popped into my email box yesterday, just one day after I wrote about the Scooter Libby jury walking into the courtroom on Valentine's Day wearing red shirts with hearts on them. I wrote how juries are so often underestimated, even by the lawyers who appear before them, and treated as dumb "malleable creatures."

So what does the researcher Shari S. Diamond say about the results of her study?

Diamond told the group that many of us hold misconceptions about juries. We believe, for example, that jurors are easily manipulated and often make up their minds before deliberations begin; that they take an immediate vote; and that the majority browbeats or otherwise persuades the others to come around.

"But actual deliberations were far more complicated in the civil cases we studied," Diamond said.

On Feb. 5th I was selecting a jury in a personal injury case and, lo and behold, a personal injury attorney was in my jury pool. He then proceeded to talk himself off the panel. As I noted in a separate post, a trial attorney talking himself off jury duty is a big mistake.

That picture above, by the way? Watergate jurors listening to Nixon's tapes. The sketch hangs in my office. As a constant reminder of so many different things, including the importance of juries.

Labels: Inside The Jury Room

It was just last week that I discussed a personal injury attorney that talked himself off a jury I was picking, and how this was a lost opportunity to see trials from a wholly new perspective.

Then in today's New York Times (reg. req.) comes this remarkable piece about the Scooter Libby jury:

Before the jurors departed on Wednesday afternoon, they filed into the courtroom, all but one wearing bright red T-shirts with a white valentine heart over their clothes, to the uncertain laughter of many in the courtroom.

But as one juror, a retired North Carolina schoolteacher, rose to speak, Judge Walton became visibly anxious that the juror might say something inappropriate that could threaten the trial. Jurors are not supposed to speak and are supposed to make any concerns known through notes to the bench.

The juror said they were wearing the shirts to express their fondness for the judge and the court staff on Valentine's Day. He then added, to the judge's growing discomfort, that they were unanimous in this sentiment, but they would all be independent in judging the evidence in the Libby case.

The sole juror who apparently declined to wear the shirt was a woman who had been a curator at the Metropolitan Museum of Art.

Critics of the jury system like to think that juries are dumb; that they are all malleable creatures that will do whatever a lawyer asks of them. In doing so, they conveniently forget that juries are usually comprised of community members no different from one's own friends, relatives and neighbors.

I am reminded of this daily, as I look at four Watergate trial images, including two of the jury, that grace my office wall , souvenirs of a Queens medical malpractice trial where I represented the estate of the artist. One is above and you can see them all at my law firm website.

The jury sketches (and Scooter Libby's jury) should be a constant reminder that power doesn't rest in the hands of one all powerful judge, but in the hands of your neighbors. Who should never be underestimated.

Labels: Inside The Jury Room, Inside The Well, Interesting Cases in the News

A Long Island animal rights activist that was fired from a volunteer position by the town of Southampton, for speaking out against their animal euthanasia policy, has been vindicated by a jury. From Newsday:

A federal jury awarded an East End animal rights' activist a $251,000 judgment Wednesday in a case that also compelled Southampton town to re-examine its euthanasia policy for stray cats and dogs.

Patricia Lynch said the town unfairly ended her work as a volunteer at its animal shelter after she used a radio show and newspaper column to speak out against putting the animals to sleep. The end of her work at the shelter, her attorney argued in U.S. District Court in Central Islip, made it impossible for her to continue rescuing the animals and place them in local homes...

[U.S. Judge Arthur D.] Spatt found that just like other municipal volunteers, such as volunteer firemen, Lynch did have First Amendment rights to free speech and due process...

Labels: Inside The Jury Room, Interesting Cases in the News

Yesterday I had a pool of 30 jurors. Four of them were lawyers. One tried personal injury cases.

Now you would think that of all people in the world, the ones that try cases would be least likely to say things to deliberately get booted from the jury panel. After all, no one appreciates the need for jurors more than those who work in the well of the courtroom.

But more importantly, the experience of being a juror is one that every attorney should have. You might not learn anything new about law or about trial tactics in a routine matter, but you learn what jurors go through. This potential juror who did mass torts litigation proceeded to say the magic words to get kicked, either because he was too busy, or just too snobby, to sit on a routine trip and fall sidewalk case. (Since jury duty can be deferred a few times for scheduling problems, it was likely unrelated to being too busy.) Deliberately getting kicked off a jury panel is, in my view, a lost opportunity.

I sat once in the late '90s on a criminal case. And while it was a run-of-the-mill burglary -- knocking off a fish truck in broad daylight in midtown Manhattan while being trailed by two undercover cops -- and the lawyers weren't that good, it was an altogether different experience seeing a trial from the jury box. And from the jury room.

No one should ever mistake the inside of a courtroom for the inside of a jury room. And no lawyer should turn down the opportunity to serve.

Labels: Inside The Jury Room, Inside The Well, Odds and Ends, Personal Injury

A federal Magistrate Judge sitting in New York has ruled that potential jurors cannot be excluded from a jury based on nationality. The rule against discrimination stems from Batson v. Kentucky, where race had been used by attorneys for peremptory challenges. The Batson rule also been extended to other minorities and to gender based discrimination, and extends also into civil cases.

From today's New York Times (sub. req.):

The judge, in a ruling last week, opened a door to lawyers defending a West Indian man who argued that he had been denied justice because all five potential jurors who were West Indian were improperly excluded by the prosecution. The Bronx jury that convicted the man, Mark Watson, of rape, sodomy and burglary included blacks, but all of them were American born.

...

The judge, James C. Francis IV, ordered a hearing to determine "whether the state can offer a nondiscriminatory explanation for its peremptory challenges and whether Mr. Watson can carry his burden of establishing discriminatory intent." If a separate hearing determines that jury selection was discriminatory, Mr. Watson, who was born in Jamaica and is serving 37 1/2 to 75 years in prison, could receive a new trial.
...

"Mr. Watson established that the prosecutor had struck every one of the five West Indian prospective jurors, a showing that was plainly sufficient to support an inference of intentional discrimination," Judge Francis wrote.

"If striking five out of five West Indian jurors is insufficient to raise an inference of discrimination, it is difficult to imagine what sort of pattern of strikes might do so," he said.

Personally, when I pick juries I always have a reason when exercising a challenge, and I think trial lawyers make a mistake when they bounce potential jurors based solely on discriminatory factors. While on the one hand a lawyer wants the jury to look like his own client, on the other hand, those from the same racial/ethnic/national/gender group may also be the harshest critic of their own. Picking a jury takes a lot more subtlety than simply looking at the superficial features of your fellow man.

Labels: Inside The Jury Room, Interesting Cases in the News, Trial Practice