It’s American trial season again. The period just after any holidays. Count on it most jurisdictions. But we now have fewer civil trials–in both American state trial courts and federal district courts–than we did fifty years ago. But we still have them. And lots of them have jurors. In America, we have so many different types of civil disputes in courts of record heard by juries that most Europeans, especially Germans, think we’ve gone a bit far with the right to a jury trial, and due process generally, if not completely around the proverbial bend. We waste too much time and money, some say. Maybe they’re right. But under our federal and state systems, jurors are here to stay. We are dug in.
No matter how elitist or egalitarian you are on the subject of jurors here in the States, please understand something.
Jurors are not dumb. They miss little. They watch you and your team–lawyers, fact witnesses, expert witnesses, consultants, law firm employees and even partisan well-wishers you may have invited–in the courtroom, in the back of the courtroom, in hallways, in restrooms, in parking lots and in restaurants.
In short, they are watching you and yours. You get the idea.
Here’s something you already know. Jurors will always surprise you in their decision-making. No matter what an expert might tell you, or how hard you’ve worked at selection, you’re always wrong about one, two or three of them. You find out things about some of them at the verdict, with or without special interrogatories.
You’ll learn tons more, however, if you have the opportunity to speak with them after the verdict comes in and they’re dismissed. Ask them how they viewed the personalities in the courtroom and whether they formed opinions about anyone. Of course they did.
Creep Control
Anyway, during trial, don’t go out of your way to antagonize jurors with sideshows which have nothing to do with the trial itself. Bring no “creeps” with you to trial. Keep them in the office. If they must show up–even for a moment–teach them to “un-creep” themselves, starting at 60 second intervals, and practicing until they can hold out for five minutes at a stretch. Hint: They pretend they are happy confident people who genuinely like other humans. And life. Breathe in. Breathe out. Repeat. And remember, you seek progress–not perfection. Be gentle at first.
Non-Creeps
Bring to trial no “non-creeps” capable of any snide, “mean” or creepy gesture, facial expression or body language glitch lasting more than one half-second. Instruct your non-creeps to read this post to be on the safe side. Reformed creeps–you spotted them early and sent them to rehab but they are ultimately powerless over they way they look or act–need pep talks, and brief courtroom appearances. See above.
Recovering Creeps Who Under Pressure of Trial May Relapse and Fold or Explode in Public
See above.
A Note on Nerds
In doses, however, a few generic dweebs and weenies running in and out of the courtroom with a huge box of documents, a phone message from your wife about Nantucket this summer with the Bloors, a good luck note from your mistress, your lucky bow-tie, your spats, your reserve pair of Bass Weejuns–face it, many on your staff are the kind of people you routinely made fun of in high school–is okay. Jurors expect nerds will be in the building. You’re a lawyer. You live in a world where nerds are almost normal. Jurors get and tolerate that.
But jurors just don’t like self-important “assisting creeps”. That’s really personal. Let us explain more.
