A terrific and wry letter on jury service–federal trial lawyers and federal trial judges take note!

One of the unexpected joys of writing this blog is the correspondence I receive from smart (and funny) lay persons who have have served as jurors or who  have been called to jury service.  In this post, I reprint, with the writer’s permission, an insightful and wry account from one such person, who also happens to be a good writer.

The only significant edits I have made is to redact the names of the writer and his son, and I do so because the writer’s son (a brilliant kid who just graduated from the University of Chicago law school) is beginning a federal district court clerkship this summer.  Because some federal judges would prefer that their clerks remain totally anonymous, I thought it best that I redact names.

With that by way introduction, here is an e-mail (really a letter) on jury service that every federal trial lawyer and every federal trial judge ought to read with care.

Dear Judge RGK,

Executive Summary: Even the most rote and routine parts of a trial can seem confusing and out of place to jurors who have never seen a real trial. Help these jurors to put questions/answers into a context.

I’ve been reading for a couple of months. I somehow found your blog via my son who is graduating from law school this June.

Your article* about how you handle jurors impressed me as every time I’ve been called, it’s like being cattle herded through airport security, with the occasional, and too well practiced, “Thank you for your service.” Is that the judicial version of “Have a nice day.”?

The case was a simple drug possession case. The defendant ran a red light. Patrol cop pulled him over. The cop saw a gun in the car, then searched the defendant and found drugs.

At the trial, the first witness was the patrol officer. The D.A. established the officer as an on duty police office, then went into this line of questioning.

“You stopped the car at the intersection of Broadway and Dobson?”
“Is that intersection in the City of Mesa?”
“Is that intersection in the County of Maricopa?”
“Is that intersection in the State of Arizona?”

The D.A. then moved on to a different line of questioning, but I was asking myself what were those questions about. I must admit I ignored the proceedings for a few minutes until it finally dawned on me the D.A. was establishing the jurisdiction. Establishing the jurisdiction is probably a routine part of every trial, but for me, a virgin juror, the questions seemed almost random.

What I wanted to say to the D.A. was tell me what the questions are all about so I can put them into context. Where are you headed? What are the following questions supposed to answer.

Thanks for your columns. Your thoughts on the legal system will help me understand where my son is headed. He will be clerking for a Federal District Judge in Sacramento starting in September. Know any Circuit Court judges who need a clerk in Sept. 2015? Sorry just being a pushy father.

. . .

If you’re busy, stop reading here. The following was my rant to my son about my prior visit to the court house.

Not Getting Selected

21 prospective jurors sat scattered behind 8 long tables facing a lectern flanked by the U.S. and the Arizona state flag. Nothing was being shared among the strangers. Simple uncomfortable quiet conquered any innate friendliness.

The jury wrangler, Lisa, opened with a joke about her inability to make coffee, “So if your drink it and it’s terrible, I warned you.” Only, a few laughs followed. Her general overview of the forms to fill out, location of the bath rooms, and admonishments to not wander the halls filled the room but created little interest. Heads looked around and counts were quickly assessed when Lisa said only 7 jurors would be impaneled that day. The few prospects that survived high school math got the exact probability of being selected but everyone had hope of not being impaneled. As if on cue, the presiding judge entered as Lisa completed her performance.

The judge with a spare tire belly, grey curly hair with a pronounced bald spot began with a usual, “Good morning.” With no response, he added, “You can do better than that.” and amped up the next, “Good morning!” following with, “Let me tell you why this is really a great morning.” Having said he had been a judge for 30 years and a presiding judge for 10, his speech was well presented but unorganized. The speech covered: why our country is great; was great because each defendant can be granted a jury trial; how everything thing the courtroom was aimed at us, “the judges”; and how we, “the judges”, were the most important part of any courtroom proceedings.

His term of “judge” instead of juror was jarring initially, but became accepted like how your friend always mispronounces certain words.

He then reiterated how important we were and how the entire system created here was to make the absolute best use of our time. Delays would be at a minimum and we would be moving into the courtroom in less than 30 minutes.

He rambled on about these facilities compared to other city courthouses. How courtrooms cost over $200 per square foot to construct. That this jury room was fairly nice. He talked about even the smallest courts in the smallest towns held justice and jurors to the same high standards as every other city in the land.

When the judge didn’t get the hook and no one came to his rescue, he wrapped it up with the usual how important everyone here was and for what seemed like the 100th time, thanks for our service. He departed.

Lisa returned and assigned us numbers. I got number 13. We lined up by numbers and filed chain gang style into the small courtroom. The 21 of us filled the guest area in the back of the court room. The only person not standing for our arrival was the judge. The only person not well dressed was the defendant. He wore a dark T shirt and blue jeans. Everyone else stood in suits and ties.

Each future juror was to answer the following: name; type of current job; marital status; number of children; and if ever served on a jury: which court; what type, civil or criminal; how long ago; what was the verdict.

The judge’s role in all of these proceedings was to repeat the pat phrase: “Would that whatever effect your ability to render a fair and impartial verdict in the case before you?” By the time the judge got to me, I had to force myself to listen to each question. One answer was supposed to be “yes” and the other was to be “no”. I had forgotten to memorize the correct order so I had to actually listen. I was able to answer correctly and got the judge’s approval with a “Thank you.”

Back to the jury waiting room while some people got special one on one time with the judge back in the courtroom. I wasn’t special and simply waited.

After 20 minutes while others came and went, we were again chain ganged back to the court room. Seven juror numbers were called but my mine wasn’t one of them. After arriving at 7:15, I left at 11.

Having protected the American Judiciary, I had an early lunch and Pete’s Fish and Chips.

My take away.  We trial lawyers and trial judges can do better.  Jurors need practical and actionable information.  For both the trial lawyer and the trial judge this takes thought and extra effort, but it is doable without a great deal of difficulty. Platitudes don’t impress jurors.  Questions that poke around obscure points of law without explanation are not only confusing but annoying. Jurors take their duties very seriously, and they expect us to spend the time that is necessary to give them the information as well as the background that any rational person would want before they are selected and thereafter. Finally, being nice is nice, but that is not enough. Jurors want concrete direction and information, and they want the jury orientation, voir dire and trial questioning to provide that concrete direction and information in a timely and efficient manner. Jurors sense rote bullshit and they are turned off by it. All of us “old hands” can and must do better.

RGK

I believe the author is referring to earlier blog posts about how I conduct jury orientation and then voir dire. For example, see here and here.

UPDATE:  The new Chicago law grad and future law clerk “outed”himself on Twitter.  So, I shall too, with my hearty congratulations to Channing for his past and future success and kudos to his father Robert for being a “cool dad.” See Channing Turner ‏@ChanningTurner @JudgeKopf of “Hercules and the umpire” posted a letter about jury selection written by my dad!!! #SoProud #CoolDads http://bit.ly/1qBumIl

11 responses

  1. More often than not, jurors just want judges to not be ingratiating, high-and-mighty, and disengaged from real life.

    No, I don’t care that George W. Bush appointed you, or what great credentials you have. I do care if you tell me that someone’s liberty is at stake, that the government has a lot of power and often overreaches, and that we jurors are there to make sure there’s enough proof to convict.

    Quick and dirty. Out with the platitudes.

  2. Thanks, I write things like this down for when I become a lawyer so that I don’t do that sort of crud when I get out in the real world. That makes good sense to me.

  3. Federal criminal trials are perfect examples of this phenomenon: lines of questioning and evidence bearing on the jurisdictional elements of federal offenses. “Say what?”/”Come again?” thinks a lay spectator or juror (e.g., why is this prosecutor asking this witness about the VIN number and the cross-country movement of this vehicle????).

  4. As a practical matter, though, how would you fix the problem regarding the jurisdictional questions? The attorney has to draw the information out. But once he does…what then? The court can’t pause the questioning to inform the jury what that was about, and it would be improper for the attorney to even try.

    So…what would you suggest on something like that?

  5. Utah Lawyer,

    I would use a leading question. “Officer, I now want to talk to you about your jurisdiction to make an arrest in the place where you stopped the defendant, so, tell me again, who is your employer?” And so forth. Sure, you might get an inexperienced judge to sustain a leading objection, but most judges I know would allow this type of leading because it clarifies and moves things along.

    All the best.

    RGK

  6. Mojo,

    Agreed. That’s why I suggest a couple of leading questions to orient the jury to the relevance, and then quickly move on. See my comment to Utah Lawyer. All the best.

    RGK

  7. Perhaps presaged by a couple of sentences in the opening remarks about how the lawyer has to ask some technical questions in order to establish this or that apparently arcane bit against potential appeals.

    Of course, the arcanities also are easier to follow if the lawyer is proceeding through his case with actual logic and facts. A disjointed presentation tends to indicate to a jury that the lawyer really doesn’t have a case–even if he might have one.

    Eric Hines

  8. This topic and the comments underscore something I have always thought: a trial is an awkward method for telling a story. Putting aside the constitutional backdrop for a moment, you have an “editor” telling you before the story starts that your story can’t mention certain things or include certain characters, that “editor” may also tell you the same thing mid-story, there are interruptions for the story teller and the listeners (although they might get a free meal), the listeners are subjected to real-time editing, and the listeners and the story teller are limited to only a handful of opportunities to directly connect the dots of the narrative, so to speak, while the rest of the comprehension is left to subtle suggestion, such as signposting, and random “aha” moments. To top it all off, you might be left with more questions than answers, but not in an artistic way. All in all, it seems to be a disjointed process.

  9. If there’s no dispute on such issues as jurisdiction and venue, sure. If there is, well, that’s a different story. Judges aren’t often sensitive to disputes over such technical elements, and want to push them out of the way with as little fuss as possible, but they may be huge to the defense.

  10. In reference to your friend the respected attorney who sent you the note asking you to stop blogging, and who agreed that you could publish his note without his name. I personally have a policy of ignoring missives from people who post anomously

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