16 What About a Jury?

Michelle hadn’t wanted her case to go before a jury. But her lawyer convinced her that she’d do better before a jury than before the assigned judge. And so, Michelle had relented. Yet now that her trial was here, Michelle was terrified at the jurors assembling in the gallery at the back of the courtroom. She felt as if they were all staring at her in stern judgment, as if she had done something wrong, when to the contrary her lawsuit was to recover for something terrible someone else had done to her. Michelle only hoped that the jurors would soon understand. 

Jurors

If you choose a jury trial over a bench trial, then jurors will hear your evidence and decide your case at trial. Jury trial is an ancient right, to have your own peers judge your legal cause. Jurors are not legal experts. They generally have no legal training. Jurors are instead generally ordinary folks from all walks of life, like you, entirely human. If any prospective juror shows up who is a lawyer or has special expertise related to the subject of your case, the judge, your attorney, or the opposing attorney will probably remove them from the jury so that their opinions in deliberations don’t unduly sway other jurors. Once you understand that jurors are ordinary folks like you, you may be less fearful and more appreciative of their participation. At a minimum, they deserve your respect for providing you with a public service at substantial personal time and travel cost to them, for as many hours and days as your trial requires. The nominal daily fee that jurors receive is far less than they’ll lose in wages, childcare expense, vehicle mileage, parking expense, and other personal costs.

Demand

If your case is of the type that jurors may decide, not, for instance, a family law or probate case but instead a personal-injury or business lawsuit, then you and your opposing party will have the option of demanding that a jury indeed decide your lawsuit. As already indicated in a prior chapter, if either side demands a jury, then both sides get a jury. Both sides must forgo a jury demand if the judge is instead to decide your case. Everyone has affinities, biases, lenses, worldviews, and perspectives. When you submit your case to a judge, you get the judge’s lone perspective, including all the judge’s individual biases. When you instead submit your case to a jury, you get the perspectives of the six, eight, or twelve jurors your trial draws and seats to decide your case. Jurors are no less biased and opinionated than judges, but the biases of one juror tend to balance or cancel out the biases of other jurors. Discuss with your attorney whether to demand a jury, although you’ll have to live with the other side’s choice of a jury if that’s what happens. Your attorney will likely know something of the judge’s general disposition toward your type of case. That insight may help inform your decision as to whether you want the judge to decide your case or a jury.

Pool

Courts draw jurors from geographic regions. State courts located within county-based districts will generally draw jurors from that county. Federal courts draw jurors from the federal district in which they are located, sometimes a whole state but in other states one-half, one-third, or a quarter of the state. You and your attorney may have a sense for the political, social, cultural, and other affinities of the majority of jurors in your court’s district. That insight may influence your choice of a jury or bench trial. Courts draw jurors from voter rolls, driver’s license rolls, state-issued identification rolls, and sometimes other rolls like tax filings. Again, your attorney may have useful insight into the jurors you are likely to see in your jury pool if you or your opposing party demands a jury.

Draw

When you arrive for your scheduled trial, the court’s jury clerk will usher a good number of jurors into the gallery seats at the back of the courtroom, from which to randomly draw jurors into the jury box. The judge will have some preliminary instructions and questions for the jurors. The judge then generally permits the parties’ attorneys to take turns questioning the jurors to elicit potential bias or conflicts of interest. See the proposed jury voir dire questions in the appendix at the back of this guide. You and your attorney may also have juror questionnaires to study, with education, employment, litigation, and criminal history, and other information, on each juror. You and your attorney may use that information, the jurors’ responses to questioning, and the jurors’ demeanor and other reactions to statements, questions, and instructions, to determine which jurors to challenge for cause. If the judge rejects the challenge, the parties may still exercise three or another limited number of peremptory challenges to remove any juror they wish. In this way, you should get a panel of jurors without evident biases or conflicts and with a balance of potentially favorable and unfavorable profiles for your case. 

Profiles

Because you cannot ask jurors directly what they think about the claims and defenses in your case, you and your attorney must generally use other data, like their responses to more-general questions and their demeanor and reactions, to judge whether they might favor or disfavor you personally or your positions in the lawsuit. Attorneys often use juror profiles to aid their judgments about which jurors to retain and which jurors to remove. For instance, if you are a customer suing a business in your lawsuit, you and your attorney might prefer to avoid business owners as jurors. You might instead prefer customers who have sued businesses or had issues with businesses, like yourself. If instead you are a professional defending a malpractice lawsuit, you might prefer jurors who are also professionals and could see themselves getting sued for malpractice. Profiles involve stereotypes, to be sure, but some stereotypes have some basis in the distribution of characteristics and preferences among populations. A plaintiff’s lawyer in a personal injury case, for instance, might remove nurses from the jury panel, believing that nurses see so much pain and suffering that they are not particularly sympathetic to it and may instead see the plaintiff as a whiner who needs to get over it. Profiles are at least something on which to proceed, when you may have very little else to distinguish among jurors.

Approach

Attorneys can take different approaches in their trial stances toward the seated jurors, depending on their own personality and preferences, and on what the judge allows. Some trial attorneys respectfully ignore the jurors, focusing on the witnesses, judge, and trial proceedings. Other trial attorneys make frequent eye contact with jurors, smile or nod at jurors, make small jokes seeking juror reactions, and even ask the judge to approach the jury box to hand out exhibit copies, trying to establish juror rapport. Some attorneys will also begin to move away from the podium and toward the jury box as they give their opening statement or closing argument, or even as they question witnesses, giving the impression that they are with the jurors, thinking of the jurors, or even one of the jurors. Study the approaches of the attorneys in your trial, and watch how the jurors seem to be reacting. If you get the impression that jurors are eating out of the palm of your attorney’s hand, then good for you. If you get the opposite impression, then consider adjusting your settlement posture. 

Instruction

Judges instruct jurors at the outset of a case as to their proper conduct and the conduct of the trial. The judge will, for instance, admonish jurors not to speak to the parties or attorneys if seeing them in, around, or outside of the courtroom when court is not in session. The judge will also admonish the jurors not to make any independent study or do any independent research about the case or its subject matter and instead to rely on the courtroom presentations. The judge may also instruct the jurors periodically about unusual events that occur during the trial. After closing arguments, or immediately before if that is the judge’s preference, the judge will instruct the jurors in the law of the case. The parties’ attorneys play an important role in drafting proposed jury instructions, requesting model jury instructions, objecting to the other side’s proposed instructions, and otherwise advocating for favorable instructions. Jury instructions can make a big difference in your case’s outcome. Jurors properly listen closely to what the judge says is the law of your case.  The judge should otherwise express no view on the case, although the judge’s instructions may include to consider all views in moving toward the required unanimous or supermajority verdict.

Deliberation

Juries generally deliberate until they reach a verdict, sometimes for just an hour or even less, while other times for days on end. No one is supposed to observe jury deliberations, not even the court’s bailiff or judicial secretary. Any interference with the jury during its deliberations, such as outside contacts or information, can be grounds for a mistrial. If a party or attorney interferes, severe sanctions up to the case’s dismissal or a default judgment may follow. If the jurors go home for the night without having concluded deliberations, to return in the morning to resume deliberations, the judge will instruct them not to discuss the case or the status of deliberations with anyone, including family members, and not to watch any news or read any press reports about the case. If a juror happens to do so and discloses it to other jurors, jurors may report the outside contact to the judge, resulting in a mistrial. Avoid all contact with jurors, and immediately report to your attorney anything untoward that you observe. The parties and attorneys generally wait in or near the courtroom while the jurors deliberate, to be available for juror questions or the verdict.

Foreperson

Judges traditionally instruct the jurors to choose a foreperson for deliberations. You and your attorney may have an idea before deliberations begin as to whom the jurors will choose. Juries tend to have some members with greater education, standing, and experience than other members or who otherwise have the stable and respectable character to serve as foreperson. You and your attorney may even be looking for a favorable juror with foreperson skills during the jury draw. While no single juror should unduly sway all other jurors, a logical, principled, thoughtful foreperson may well be your greatest ally, if your case has good facts and good law but the other side has greater sympathies and emotional appeal. When the jurors return to the courtroom with their verdict and the judge asks the foreperson to rise to read the verdict, you’ll learn whom they chose. 

Questions

The jurors may pass questions out to the judge by way of the bailiff during deliberations. If so, the judge will call the parties and attorneys into the courtroom to read aloud the questions on the record and to surmise, with the attorneys’ input and advocacy, on how to respond. Sometimes, the response is to supply a missing exhibit or call the jurors into court to read aloud to the jurors a part of the trial transcript about which the jurors had a question. The questions may also indicate the jurors’ schedule preferences for continuing to deliberate into the evening or adjourn for the day. Don’t lose heart if the questions seem to indicate a loss, and don’t get too excited if the questions seem to indicate a win. The questions don’t always indicate the overall direction of juror deliberations and may instead indicate a dissenting juror’s concerns. 

Form

The parties’ attorneys and the trial judge typically prepare a jury verdict form for the jurors to take with them into the jury deliberation room. The verdict form generally begins with a series of yes / no questions for the jurors to answer, one by one, with instructions to stop if the answer is “no.” For instance, in a motor-vehicle-accident case, the first question might be whether the defendant was negligent. A negative answer would mean that the jury was finished and the trial over, with the plaintiff having lost. If instead the jury answered in the affirmative, the next question might be whether the defendant’s negligence was a cause of injury to the plaintiff. Questions might also ask the jury to assign percentage fault to the plaintiff and defendant in a negligence case, depending on the facts of the case and law of the jurisdiction. If the jury proceeds all the way to the final questions, those questions might ask the jury the amount of damages that the jurors award the plaintiff. Verdict forms can be crucial in obtaining a proper and fair verdict. An error in the form or in the way that the jury completes it likely means the necessity of a new trial. 

Verdict

Once the jury foreperson reads the verdict, the judge will secure the verdict form to retain as an exhibit, while sharing it with the parties’ attorneys for a close review to ensure its consistency with the foreperson’s announcement. The judge may then ask the attorneys if they wish the jurors polled. The attorney for the losing party generally answers in the affirmative, hoping that the jurors mistakenly reported reaching a verdict without the required unanimity or supermajority. The bailiff will then ask each juror if the verdict the foreperson read in open court was indeed their verdict, allowing each juror to respond with a yes or no. If the tally of votes meets the required number of jurors for the verdict, the judge then releases the jurors, typically after expressing appreciation for their devoted service.

Contact

The judge may also have some instruction to the jurors or to the parties and attorneys about attorney contact with jurors, now that the court has released the jurors. While judges differ in their practices, a typical instruction is that the jurors may now speak to the attorneys or parties if they wish but do not have to do so. Some judges will even allow the jurors, parties, and attorneys to remain in the courtroom or to move to a conference room or other location for those conversations. More often, though, the jurors will disperse rather quickly, with goodbyes only to their fellow jurors with whom they just spent a few days of their precious time. If the judge has allowed it, you and your attorney may decide to follow jurors out of the courtroom to politely and sensitively ask if they wouldn’t mind speaking with you for a few minutes. Whether you win or lose your trial, you may learn from the jurors both obvious and surprising things that influenced their judgment. You may also learn of some juror impropriety, in which case you may have recourse for a new trial if you just lost. Investigating potential juror misconduct following a trial loss is a good reason to ask jurors about the course of their deliberations. 

Reflection

Would you prefer to have a judge or a jury decide your case? What does your attorney say about the judge’s disposition toward cases like yours? What do you think the average juror in your judicial district would think of your case? Do you have an ideal juror profile for your case? Do you have a profile of a juror that you’d definitely rather not decide your case? What does your attorney say is the rule for a jury verdict in your court, whether unanimous or supermajority? How many jurors will your judge seat to decide your case? Have you seen and reviewed the verdict form that your attorney drafted or approved for the judge to share with the jurors to complete? Does the verdict form accurately reflect your understanding of your case’s legal requirements? Does the verdict form seem fair to you? What would be the profile of an ideal foreperson for your jury, relative to the merits of your case? Do you plan on encouraging your attorney to speak with jurors after the case, if the judge permits it?

Key Points

• Jurors bring balance and wide experience to the deciding of your case.

• You and your opposing party may each have the right to demand a jury.

• Courts draw jurors from a geographic pool with broad characteristics.

• The attorneys question jurors during their draw for bias and conflicts.

• Having a profile for your preferred and disfavored jurors can help.

• Your attorney will have an approach toward how to relate to jurors.

• The judge instructs jurors throughout the trial with attorney input.

• Jurors deliberate to a unanimous or supermajority verdict.

• Jurors choose a foreperson to guide discussion and report the verdict.

• The attorneys and judge draft a verdict form with questions to answer.

• The foreperson reads the verdict in open court, for jurors to affirm.

• The judge may permit the attorneys to speak with jurors afterward.

Read Chapter 17.