I am a defense lawyer, and I try cases to juries. These aren’t insurance defense cases; these aren’t personal injury cases. My cases are complicated business disputes, and have included antitrust claims, an eminent domain action against a defense contractor, and the like. Typical for me are trials that last for months.
As a result, my research, concerns and strategies involve jurors. What are they thinking, giving up weeks or months to sit in a complicated business dispute between wealthy disputants?
The constitutions of the United States and the various states require jury trials for civil disputes. Basically, a jury listens to the evidence, entertains the arguments of counsel, and reads instructions given by the judge. The jury applies those instructions to the evidence to answer particular questions about guilt or liability.
My opinion of jurors has changed over the years. It has improved.
After a lengthy jury trial concerning a hundred million dollar real estate dispute, and after a successful verdict, I took my jurors to lunch at Spagos Beverly Hills. Sitting to my right at the luncheon was an alternate juror, a fellow who hadn’t even been given the opportunity to deliberate and decide. He was a screenwriter for a major studio. I asked him how he felt about serving as a juror in a dispute between two billionaires and devoting a large part of his life to the contest. He responded with, “I wasn’t willing to lie about reasons to get off the panel.”
It hit like a lightning bolt. I looked around at the other jurors at the table – a writer, a teacher, a retired mechanic and people like them. They, too, had been unwilling to lie to get off the jury. We had spent three days picking a jury many weeks before, and the prospective jurors quickly picked up on the single best excuse to get off the jury – they had a pre-paid vacation. But, these jurors sitting at my lunch table had not been willing to let those words come out of their mouths. That meant that the people deliberating the fate of my evidence were persons of a cross-section of society who weren’t willing to lie under oath. As a result, these great folks were less likely to be venal or vindictive in their deliberations.
A lie under oath is a serious offense. When the scriptures speak of not bearing false witness, this is a legalism implying a legal proceeding. Thou shalt not lie under oath in a formal proceeding. Although jury service is troublesome and disruptive, the jury system is a constitutional mechanism to control abuses by governments and individuals. It works when we sacrifice our time to participate, and it works when we respond truthfully as to our limitations.
Among my Church friends, I sometimes hear about mechanisms they’ve employed to avoid jury service. Some of these tactics border on the frivolous or the lie. I don’t weigh in with them as some sort of officious lawyer; perhaps I should. I’ve never served on a jury, either. I’ve spent a couple of days waiting to be called to a courtroom, but that’s it. Jury service, nonetheless, is as important a civil duty as paying taxes honestly.
Furthermore, as I have argued in a bar journal article, we shouldn’t be complaining about absurd or runaway jury verdicts if we, committed family types and stable persons, are unwilling to devote some time to jury service. Jury service needs people who are committed Christians, or Jews or religious people who look to a higher God for ethical restraint. Jury service relies upon a system of fact-finding by a jury of our peers, and not merely unemployed people, retired people, or postal workers glad to escape work.
Some personal recollections:
One day, as I was trying a lengthy case, I saw Ben Stiller in the hallway with a juror’s tag. He was serving on a local jury.
When a lawyer conducts voir dire examination of prospective jurors, he or she has a list of names of jurors. There are about 40 to 80 of them in a Los Angeles courtroom. One of them one day had the name “Jared K. Diamond.” Where have I heard that name before? A lawyer I knew? I knew some Diamonds. Maybe. A couple of days went by and Mr. Diamond appeared in the dock as a prospective juror. He said that he couldn’t serve because he had a paper to present at an anthropological conference in Australia. The wheels started turning in my mind. The judge asked for the subject of the paper, and Mr. Diamond said it concerned a New Guinea tribe. I jumped up and loudly stated, pointing at Mr. Diamond – “This man has won the Pulitzer Prize!” The judge responded with, “Guns, Germs and Steel!” The two of us were pretty proud of ourselves, particularly when all the other lawyers and persons in the courtroom expressed utter confusion. I guess they weren’t readers.
I’ve had Mormons on my panels. They had not realized I was LDS. Perhaps that is a poor reflection on my personality.
When I voir dire my jurors, I memorize their names and occupations in advance so that I can address them without notes. That is a very difficult task for me. I forget the names of my own children. Imagine having a few minutes to memorize the names of 12 to 18 people in a short period of time. It isn’t easy, nor is it easy remembering the things they are telling me. (I have another lawyer behind me writing down everything they say.) It helps to have one of my associates write notes in big letters so I can drift over to counsel table to refresh my memory. But, the jurors love it. (In one 9-3 verdict one of the dissenters accused me of pandering for such tactics; oh well.)
After one successful verdict, a juror told me that I reminded her of John F. Kennedy. My, did I have a big head that day! I wish all my days are like that one.
I’ve had one jury loss. It was a difficult set of facts and I knew that a judge would rule against me, so I gambled with a jury. The jury foreman was a writer for the Simpsons. My case involved a billboard, the world’s most expensive leased billboard with the highest revenue – a billboard on I-405 near the intersection of the I-10. My jury deliberated for eleven days with a 6-6 split and then swung 9-3 against me. That jury was memorable in that I decided to keep a transvestite on the panel, a person whose name on the venire panel indicating he was a male, but who was dressed as a female and identified herself as such. I thought that he/she might take a creative look at my case and avoid being bound by the rules, but he/she did not appear for the third day of trial and we went to an alternate.
In another jury, I represented a Japanese investment company. All my clients and witnesses spoke only Japanese. During voir dire, an older prospective panelist said that he had served in World War II and had worked for General Motors, and that he hated the Japanese. He said he could not be objective. When I looked at the faces of the other jurors reacting to his comments, I gambled and left him on the panel, thinking that the other jurors would polarize themselves against his prejudice and vote in my favor. In the end, he voted for me along with the others.
So, jury service is a wonderful thing in California. It is.