One trial lawyer’s view about speaking with the jury after the verdict

Kyle McNew is a bright and upcoming young trial lawyer who clerked for a federal district judge and then with federal circuit judge. Recently, he sent me an e-mail about his experience while clerking for the district judge. I was impressed by the e-mail because Kyle articulated why I think speaking to jurors after a trial is very worthwhile.

I asked Kyle if I could reprint a portion of his e-mail and he agreed.  Here it is:

I just read your post about interviewing jurors.

. . . .

[One of my first assignments] was to be the clerk on a 4 month, multi-defendant white collar criminal jury trial. All of the defendants had unlimited defense funds, so these were the best white collar attorneys in DC up against some of the best white collar prosecutors DOJ had to offer. I had graduated law school in May, took the bar exam in July. This trial started the first week of October. The entire experience was incredible, and I can truly say that I know first hand what it is like to drink from a fire hose. But the highlight of the trial was spending about 5 hours with the jury after they rendered their verdict. The jury came back at about 10 am on the 5th day of deliberations. My judge had me reserve a private room at a very nice restaurant just down the street [from the courthouse] for lunch. The jury delivered its verdict (not guilty across the board) and off we went to lunch. . . . We never asked them why they did what they did, because it was obvious. Instead, we asked what worked, what didn’t, what they thought of the process, what could be done better, etc. For an aspiring trial lawyer, it was like manna from heaven. We did the same (sans fancy lunch) for every other trial we had, but that lunch session was the absolute highlight.

As a trial lawyer, I still try to speak to jurors as much as possible. To their credit, they usually don’t want to, so we often hire a jury consultant to contact them and frame their inquiries in terms of research. Less valuable than being able to speak with them face to face, but still valuable. 

Kyle was fortunate indeed to work for a trial judge who cared enough about jurors and young law clerks that he was willing to spend a lot of time listening to and educating them both. What an incredible experience for the jurors and for Kyle.

Thank you Kyle for sharing your experience.

RGK

19 responses

  1. Sorry your honor, but the only thing that I learned from this post is that a lot of money was spent by the judiciary for a fine lunch at an upscale restaurant. I don’t know if justice was served, but I guess that everyone ate well.

  2. Judge:
    Here’s an off-the-wall suggestion. Recognizing that talking to juries is “manna from Heaven”, and also recognizing than accosting them after their service is unlikely to get most of them to talk, perhaps jury deliberating rooms could be wired for video and sound with the understanding that no one gets to see the aforementioned until after a verdict is rendered. Then, if they wish, the attorneys can view same with an eye towards seeing what did and did not work during the trial. I expect, in the unlikely event that this could be arranged, that the end product would be a veritable treasure trove for any trial lawyer.
    Robert

  3. Robert,

    I have participated in such an experiment as a part of a mock trial but with real jurors put on by the National Institute for Trial Advocacy (NITA) . The fear is that if jurors are told they are being recorded that might chill or alter their deliberations, and if jurors are not told they are being recorded that would be dishonest. That said, I would be open to such an experiment in civil cases if the lawyers agreed. I would, however, feel obligated to tell the jurors.

    All the best.

    RGK

  4. Based on my own experiences of talking to jurors after a verdict (which most decline to do anyhow), I haven’t really learned all that much that is useful. In my earlier years of trial work I made the effort . Now, I don’t bother unless I “smell a rat” in the situation. As for recording or videotaping deliberations, no, no, no. Leave it alone – it is a bit like the old saying to the effect that “you are better off not seeing how sausage is made”. You want to open a real can of worms? Let a lawyer see how a jury made the decision he or she doesn’t like and I guarantee you the lawyer will not “let it go” in the interest of “research”. I can count on the fingers of one hand the jury verdicts I’ve experienced in 30+ years where I thought the jury pretty much blew it – a couple of times to my client’s great benefit. I am content that the system is not so broken that we need to start tinkering with it – juries in a normal case are appropriately serious and attentive, do their duty, and get it right – they “do justice”, if that is the term of art. Perhaps if I practiced criminal law I might have a different view – that area of the law seems to be where most of the gnashing of teeth occurs – people’s lives are at stake. . . . . . . Just one man’s opinion.

  5. Marsha,

    Judge Kopf is correct. The Judge in this case – Judge Kelley – paid for the lunch out of his own pocket and the lunch was, indeed, fine. I still have a picture of the entire group at that lunch framed in my office. That said, I disagree with your premise that it would have been wasted money if the judiciary had picked up the tab. These jurors devoted 4 months of their lives to this cause. One of them had to plan a wedding from the jury room during breaks. Another came close to losing a very well-paying job, but refused to ask to be excused from service. Dropping a few bucks to feed these folks would have been a perfectly acceptable use of discretionary funds, in my opinion.

    -Kyle

  6. Did not U of Chicago Law School do a major study of juries including recordings? I think Harry Kalven was in charge. If court recorded would that be human expiramentation, would you need an IRB?

  7. Jay,

    I will give you that Judge Kelley’s candor can sometimes be his worst enemy, and that this article may be Exhibit A in support of that position. That said, at least he was honest. And the larger point is that he did what was right not just for him but for the system. He simply did not enjoy several aspects of being a judge – the “mundane” subject matter of the bulk of the work was only one of them. But unlike many of those on the bench who don’t like their jobs and choose to exorcise that dislike by being bitter and mean fire-breathers on the bench, he left. He made room for someone who truly did want the job. The man who replaced him – Judge Davis – was made to be a federal judge. He is great at it. So while Judge Kelley’s final farewell probably could have used some sanding around the edges, at least he said farewell instead of overstaying his welcome.

    -Kyle

  8. Sure, but candor aside, it seems hard to understand how he could have accepted a federal judgeship, at his age and experience, without realizing what it would entail (that is, a lot of drug and gun cases, particularly in Norfolk). We’re not talking about someone regretting a tattoo they got at 18 or a drunken wedding in Vegas. It takes a lot of effort (including effort by others on one’s behalf) to become an Article III judge.
    So there’s going to be the unfortunate impression, at least, that someone who takes the job and then resigns after 4 years to become a biglaw partner is cashing in in the style of a Congressman-turned-lobbyist. I don’t think the similarly brief tours of Paul Cassell or Michael McConnell reflect very well on them either, FWIW.

  9. (To be honest, I suspect that simple vanity plays a larger role than material greed in the desire to become a federal judge even while aware that one may not enjoy it very much.)

  10. You are referring to The American Jury by Harry Kalven and Hans Zeisel of the University of Chicago Law School. The manuscript that came out in the summer of 1966 was put in book form by Little, Brown later in 1966. It is has been a long time since I read it, but if remember correctly judges and juries agreed 90 percent of the time in the study. Ten percent of the time the jury was more “liberal” than the judge. That is not at surprising if one assumes that judges become more skeptical the more cases they hear, as Kalven and Zeisel speculated.

    As for an Institutional Review Board (IRB) authorization, so far I know the federal judiciary does not have such a board. Besides, if the video recording of the jury deliberations took place in a real trial it would not be an experiment.

    All the best.

    RGK

  11. MOK,

    After you have tried a number of jury cases, I can see why talking to juries after the verdict would not seem productive. But for younger lawyers, with much less experience than you, I truly think they would learn things that would make the effort worthwhile. That is particularly true given the decreasing number of jury trials available for young lawyers to cut their teeth on. If nothing else, young lawyers would learn that (1) jurors take their jobs very seriously and (2) of the three methods of persuasion-logos, pathos and ethos–the best trial lawyers persuade by using the “ethical” appeal and that is because jurors desperately want guidance from a person they trust even if he or she is an advocate.

    All the best.

    RGK

  12. You are absolutely correct, of course, as to the younger pups learning their way. I guess I’m getting old enough to forget those days. 🙂 And, the lack of jury trials these day is, indeed, a concern for the trial bar – plaintiffs and defendants alike – the opportunities for attorneys to develop and sharpen skills are fading. I talked to a state court judge recently who voiced concerns about judges losing their opportunities, too. The judge presided over one civil jury trial in 2013, in a larger than normal district over here in Iowa. I suppose this is a subject for discussion on another day.

  13. Here in Massachusetts, it is unethical to speak to a juror unless the juror initiates the conversation. Judges offer to meet with the jurors after a trial, to discuss their service, but also I think to make it harder for the lawyers and jurors to meet. It is a great shame. We could learn much from jurors. I had a case where the jurors laughed at a couple of the defense witnesses, and I wasn’t making fun of the witnesses. In that case, I also had an expert who said that the chances that the reduction-in-force in which my client was let go was not influenced by age were less than one in 10,000. Yet the jury came back for the company in three hours. I think I know why, but I’d love to have heard from jurors.

    The Massachusetts Employment Lawyers Association has a panel of judges every year. Several of them have told us that they’ve had jurors in tears–apparently when feeling compelled to come back for the employer, not when they find for the plaintiff employee. Some of the judges have told us that “jurors always comment on the lawyers’ shoes,” but none of them have told us what the jurors say. Having been in front of jurors in hiking boots (there was a snow storm), I’d like to know.

  14. Jay,

    Judge Kelley actually gave a presentation to the Norfolk Federal Bar Association titled “The Dog Who Caught the Car – Now What?”

    -Kyle

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