Tuesday, July 21, 2009

Through The Legal Looking Glass: Six Annoyed Persons

The most critical moment in any case is when the jury is chosen. A good jury gives you a fair chance to win your case. A sympathetic jury, makes it all a little easier. An unsympathetic jury makes it a lot harder. A biased jury can kill you.

And how does one get a jury? Read on. . .

In the American system, most trials are decided by juries -- though bench trials (judge only trials) are becoming more common. All jury consist of twelve people. . . right? Actually, no. Despite what the movies have told you, civil cases are almost always decided by six jurors, who must return a unanimous verdict. Moreover, in 1970, the Supreme Court held that criminal cases also could be tried by six person juries, except death penalty cases.

The selection of jurors begins the day you first register with the state. By getting a drivers license or registering to vote (depending on state law), you put your name into a lottery, which can land you in the courtroom.

Every court term (there are usually four per year), the court randomly draws names from this lottery pool to serve as jurors during that term. If you are chosen, you will be notified to appear at the courthouse on a particular date and time. You will also be asked to fill out a juror questionnaire, which asks for information like: name, address, age, family status, prior jury service, occupation, religious beliefs, and disability.

As the trial approaches, the clerks will forward these questionnaires to the attorneys for each side. Over the next couple weeks, the attorneys pour over the questionnaires trying to figure out how these potential jurors might view the case. Would a librarian or a nun reacted better to an alleged mugger? Does a construction worker care more or less than an accountant about bad checks? Will that 21 year old brick layer, who wrote “I don’t want to f***ing be on a jury” on his questionnaire, have the right frame of mind to hear your corporate fraud suit? This other guy lives in the rich part of town, will he side with the business or the employee . . . here’s a clue, he's a union rep.

The attorneys also contact everyone they know to see if anyone knows these people. I had a potential juror once who looked great on paper for a plaintiff’s case, until I learned that he hangs out in bars telling people that he’ll “never give a penny” to anyone who brings a lawsuit.

The attorneys also prepare questions they intend to ask the potential jurors to determine whether or not the person should be allowed to serve on the jury. These questions are called voir dire, (pronounced: “vwa dēr”) and will be exchanged (and fought over) by the attorneys a few days before the trial.

When the day of the trial arrives, the people who filled out the questionnaires arrive at the courthouse. . . at least, most of them do. Usually around 30 are called, with 25 or so showing up. The clerks will gather these potential jurors and bring them to the right courtrooms.

Once in the courtroom, the judge calls individuals at random from the group until the jury box is full (usually between 18-24 people). The rest are typically dismissed at that time. So long my favorite juror. . .

Then the voir dire begins. Although some judges handle the voir dire themselves, it is usually left up to the attorneys. Each attorney starts by asking general questions to the jury panel, asking for a show of hands. For example, “do any of you know the defendant?” If a juror raises their hand, the attorney gets to follow up with further questions to that individual juror, to understand the details. Sometimes this is handled in the judge's chambers when the details are embarrassing. Otherwise, it's done in open court, and it can be quite conversational.

What you’re looking for is whether or not the juror may legally sit on the jury, e.g. convicted felons may not sit on juries and must be removed. You’re also trying to learn any prejudices the individual jurors might have. Thus, you ask about any relationships they have to the parties, or the attorneys, or the witnesses. You ask if they’ve ever sued or been sued. And you ask their views on specific issues related to the case: "You believe that anyone who gets arrested must be guilty? Tell me more."

As an attorney, it is your job to figure out that the overly-eager young woman who described herself only as a “housewife” on her questionnaire, is married to a doctor. . . a doctor who’s been sued, and that she sits on a committee that lobbies to change medical malpractice laws in the state. (true story)

When someone is disqualified (like our brick layer felon) or they have given reason to believe they cannot be impartial (like our housewife activist), you approach the judge and you ask that they be struck from the panel for cause. The felon has to be struck, by law, but the others. . . that's up to the judge, and judges don’t like striking jurors for cause.

Here’s why. As people are removed for cause, the panel gets smaller and smaller. If the numbers fall below a certain point, the panel is considered busted and a new jury panel must be called, which means the whole trial needs to be rescheduled. Not only is this chaos on people’s schedules, but speedy trial rules require that criminal trials begin by certain dates. Busting multiple panels can cause the state to violate that provision and can lead to the case being dismissed. Thus, judges struggle to keep jurors on the panel.

One of the tools judges use to keep jurors around is to “rehabilitate” the juror by asking them to state that their apparent prejudice won’t be a problem: “You’ve indicated that you have actively campaigned to stop medical malpractice suits. Despite this, do you think that you can decide the facts of this medical malpractice case fairly?” And the housewife nods her head, because she really wants onto this jury. But that’s good enough for the law, so she will make it to the next round. The union guy who claims he “hates rich doctors” won’t.

Once the voir dire is done, the final stage begins: peremptory challenges. In this phase, the attorneys get to toss people off the jury without providing any reason. (Though there is a caveat with regard to certain discrimination issues.)

How does this work? Each side is given a set number of strikes, which they will alternate using. The number of strikes varies, but is typically between 3-4 for regular jurors, and 1-2 for alternate jurors, who are chosen separately.

And how do you decide who to strike? That’s the question. By now, you’ve struggled to add up all the responses in your head, and you’ve begun to figure out who you want off the jury. And trust me, sometimes, these are very difficult choices. It is a strange feeling to leave the other party’s cousin on a jury because they seem more fair than the other people you need to throw off, but sometimes that's the best strategy. (FYI, being cousins or friends typically does not count as "cause".)

Once you’ve decided, you take a deep breath, hope that luck is on your side, and you put an “X” on the jury sheet next to the juror you want tossed off. And like that, they’re done. Housewife, you’re outta here lady. Impartial my asp.

You then hand the sheet to the bailiff, who hands it to the other side. They mark somebody they want struck, usually the one you most want on the jury, then the bailiff hands it back to you. Whoa! They struck that angry dude sitting in the back, the one you were going to strike next! Hallelujah!! So you mark the next one on your list. . . and so it continues, like the NFL Draft in reverse.

And when you’re done, the judge breaks the news to the jurors. You’re it, get comfortable.

Finally, let me say, that contrary to popular belief, it’s not easy to get out of jury duty. Nor do lawyers look for stupid jurors or inept jurors. Most attorneys want reasonable, smart people who will be able to sit through a multi-day trial, pay attention, understand what is said, and follow the law as it is explained by the judge in the jury charge. And happily, that’s generally what the system provides.

(P.S. We won the case with the cousin sitting on the jury.)


BevfromNYC said...

{{climbs up on soapbox}}
As citizens, we are required to do a few things - obey laws, pay taxes, and jury service. (Voting, military service, and annoying the heck out of your elected officials are still optional) I go on record as saying I love jury service. And I believe that those who criticize the system or consider their time to be too valuable to participate have never been on a jury. {{climbs down from soapbox}}

Writer X said...

Are juries only sequestered in high profile cases?

Also, and I have no idea why, but years will go by before I get called for jury duty. Then I'll be called four times in a two year period. It's very strange. And I am not a felon. Not that I know of.

AndrewPrice said...

Bev, I concur. Being a juror is your chance to have your voice heard by the legal system. It's also our duty to make sure that the system keeps working.

AndrewPrice said...

Writer X, few juries are sequestered. It costs way too much and the court system generally doesn't think it's worthwhile.

Instead, the judges will instruct the jurors to avoid talking to anyone about the case and to avoid reading anything (or watching anything on tv) about it. Do they? Don't know. Most do, but probably not all.

As for being called repeatedly, that's just one of those things -- like people who win the lottery two or three times. Either that, or the system your local courts are using isn't well randomized.

What's stranger is when you draw a jury that seems full of people connected to your case -- which seems to happen a lot, but is really just coincidence.

BevfromNYC said...

Writer X - There are other reasons why you are called more frequently. It may be for jury service in different court systems in the city, county or state you live in (Civil, Criminal, State, County, Federal, or Grand Jury). There is also Federal jury service. Also, If you have not been enpaneled (chosen for voire dire)during your service, they may put your name back in the circulation more frequently if they need to widen the jury pool. The rules vary from State to State.

AndrewPrice said...

Good point Bev, that's all true as well. There are many layers of jury duty in our current system.

And let me add, the specifics I discuss above will change from location to location (and sometimes judge by judge) because every jurisdiction uses slightly different rules -- which is why I didn't get too specific (plus, you folks would all be intensely bored if I did that).

But the general rules are remain the same across the country.

CrispyRice said...

Andrew, do you find that people are more interested or willing to serve on criminal vs. civil juries?

AndrewPrice said...

CrispyRice, in my experience, people haven't really shown a preference for particular types of trials. The jurors have always seemed quite attentive and interested (from criminal to civil to traffic).

I suspect that most people view it as an interesting experience and they intend to make the most of it, no matter what the topic.

That said, people do seem to want to avoid long trial -- can imagine why. And I would suspect that they would prefer to avoid "dry" trials, things like document-heavy fraud cases. But truthfully, it's the fault of the attorneys if they can't keep the jury interested.

LawHawkSF said...

Andrew: Now we should tell them about how often we carefully vet potential jurors to get a balanced jury. "We" pick the six jurors we like, "they" pick the six jurors they like, and when it's all over, both lawyers got it completely wrong.

In one particularly tough felony case, my client was charged with certain sexual crimes that would offend almost any person of mainstream American morals. I had run out of peremptory challenges, and I couldn't find any legal cause to get rid of one juror I knew was deadly to our cause. He was a married man, active member of his church, a mid-level manager in a construction business, and fit all the profiles representative of the very conservative county in which I based my practice. After the trial was over, I discovered that on the first vote, the jury was eleven to one for conviction. The man I considered most likely to vote to hang my client led that jury to an acquittal. He was the lone holdout on the first jury vote.

AndrewPrice said...

Lawhawk, As you know, lawyers can do as much voodoo as they want when picking a jury, but when that jury goes into the back, all bets are off -- you never know what is going to happen.

patti said...

i may be an anomaly, but i love serving. usually fascinating stuff to be discovered. pick me! pick me!!

Mike Kriskey said...

I have a cousin or two who wouldn't want me on his jury. But, sadly, I've never been called. I vote and I drive, so I guess that's just bad luck.

Tennessee Jed said...

O.K. this is not on juries, but I happened to be over perusing Rush Limbaugh's website. As everyone knows, the House version of the obamacare bill was pulled. Yes we cannot relax and we know they won't give up. Rush, though, basically was giving a big shout out to the "new media" for helping inform the public as to what was in this bill. Yes that is Commenterama, and I would be remiss if I didn't give a written applause to Andrew and Lawhawk. You are the guys making the difference!

AndrewPrice said...

Mike, try voting twice in the same election, that might get you into court. :-)

Thanks Jed! I hope we had a part in it and I hope we have a part in keeping any reform that does pass sane.

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