|Oregon State Bar Bulletin JUNE 2011|
By Peter M. Appleton
I watched the television program “Harry’s Law,” the other night utterly amazed at how Kathy Bates’ attorney character, despite having her opponent’s numerous objections to her claim of necessity sustained by the judge, convinced a jury to reject overwhelming evidence of guilt and acquit her elderly client of armed robbery because of the harsh consequences a conviction would impose on the client. I have never found juries willing to do that. In fact, I have never had the guts to suggest to a jury that it do that. Maybe I have always been too afraid of judges to suggest jury nullification. Probably a more accurate reason is that most juries I have encountered in my practice try to do the right thing regardless of the consequences. I found myself identifying more with the prosecutor in the TV episode I watched than with the defense attorney. After all, he asked the jury to consider the evidence, not their emotions.
One of the reasons often offered for why cases should be settled, not tried, is the unpredictability of juries. That is both right and wrong. Most veteran judges will tell you that there is no such thing as a slam dunk; that in jury trials 100 percent cases are really 80 percent cases (although the very same judges will tell you that there are not very many jury verdicts that surprise them). Jury unpredictability, however, does not take away from the premise that most juries try to do the right thing; they just don’t see the case the same way as the lawyers see it. After being on a jury once, it never ceases to amaze me the way some people view evidence. I recall a case where one juror said that he would never vote for the plaintiff because he (the plaintiff) set up a “phony” (fictitious business name) business instead of looking for other work after he got fired, an issue that never occurred to counsel. Jury unpredictability remains a reason for settling cases (if we can’t evaluate cases we know and understand, how can we expect up to 12 people who do not know our case to properly evaluate it), as trial lawyers, if we are going to try jury cases to juries, it is our job to try to figure out how a jury will view a case or educate the jury to view the case as we want it viewed.
Jurors should be encouraged to take notes. That way someone is likely to remember what witnesses testified to. Another problem expressed by jurors is the belief that vital information they need to decide a case is not made available to them. I have tried cases before judges who have responded to that concern by allowing jurors to ask questions of witnesses. Well, they don’t actually let them ask questions. After counsel have completed their examinations a juror who wants the witness to be asked a question writes down the question and gives it to the judge who then confers with counsel and asks the witness a nonobjectionable question. Counsel are then afforded an opportunity to follow up. In that way omissions and misconceptions can be cleared up.
Another problem is exhibits. I favor giving a copy of each exhibit to each juror after the exhibit is admitted. A question is whether to use old-fashioned exhibits or new technology such as laptops, projectors and fancy charts. Most jury consultants (and many trial lawyers) prefer new technology, since they evaluate juror time perceptions as short given what they are used to seeing on television. I prefer old-fashioned exhibits and argument, both because I like the jury to have something real (something other than fancy charts) to study in the jury room and because of the dinosaur in me (that is the way I have always done it).
Lastly come jury instructions. Many plaintiffs’ lawyers will tell you that jury instructions are irrelevant; that juries decide cases based on whether they like the plaintiff. I disagree. I think that most jurors try to follow the instructions. (Appellate courts certainly do.) I advocate having a written set of jury instructions for each juror (again so that each juror will have something to read in the jury room) and that the judge should instruct the jury before closing arguments so that the lawyers can refer to the jury instructions in their arguments.
I think that after voir dire lawyers should avoid talking directly to jurors. Let the judge do that. Jurors who have questions should put those questions in writing and give those writings to the judge who will then confer with the lawyers. Jurors should never be asked if they do not understand something. Such questions may intimidate a juror. Instead they should be asked if they want the lawyers to address something in particular in argument. I also advise against engaging in confrontations with the judge. Judges may not be held in high regard by jurors. However, he or she is still the judge. As Woody Hayes said when asked why his team did not throw the ball, “Three things can happen (when you do that) and two of them are bad.”
ABOUT THE AUTHOR
Peter M. Appleton is a sole practitioner in Salem.
© 2011 Peter M. Appleton