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“Eeeney, Meeney, Miney, Moe”

February 13th, 2012 Comments off

                If you are ever called for jury duty, the lawyers will say that they are looking for jurors who will be impartial.  They’re lying.  Any trial lawyer worth his salt wants jurors who will favor his client.  The jury system works when each lawyer is able to “strike” the jurors who would seem to favor the other litigant.  Each lawyer can “challenge” and eliminate any and all jurors who admit that they are predisposed to favor the other side.  But what about the jurors who say they will be fair but harbor sympathies for one side or another?  Luckily, each lawyer has a certain number (usually three) of “peremptory challenges” which may be exercised to remove a juror who the lawyer believes may harbor secret or latent sympathies for the other litigant – or worse, hate your client.  Sorting the jurors who favor your client from the ones who won’t is a tricky business. 

                Historically, attorneys select jurors based on intuition and formulaic profile.  Some lawyers hire jury consultants to render expert insight into human behavior.  But looking for jurors who will “like” your client is more of an art form than a science project.  Most people harbor prejudices of one type or another.  These are not always nefarious and many come from innocent practical experience.  Juror “number one” might like cab drivers because she’s married to one.  Juror “number two” – who’s actually ridden in a cab – might think that cab drivers are inherently reckless.  Oops . . .  there I’ve divulged one of my biases.  The problem with jury selection is that the average person doesn’t like to admit that he or she may be prejudiced, especially when challenged by a lawyer in front of the other members of the jury panel.  “Mrs. Smith,” the lawyer might ask “I know that your son was killed by a cab driver driving on the sidewalk in Manhattan, but won’t you will be fair to my client?”  In truth, it’s not that Mrs. Smith won’t be fair; she can’t be fair.  And that’s understandable.  As far as I know there was only one Mother Theresa and she’s dead and won’t be in the jury pool.  The only way that a juror may truly be fair is to recognize and admit his or her inclinations.

                The challenge for the trial lawyer is to discern a candidate’s personal history and predispositions in the space of a few minutes.  This is why attorneys profile potential jurors based upon career, education, geographic origin, race and ethnicity.  By profiling, the lawyer may seem to be showing his own prejudices.  In fact, he’s trying to intuit the jurors’ prejudices and has to rely on stereotypes to do so.  Homeowners and shopkeepers typically don’t like people who bring lawsuits when they trip and fall.  Elderly white people from Douglaston Manor typically fear black rappers from Jamaica.  Kindergarten teachers typically cry when they hear that a little child was hurt in a car accident.  Bankers typically don’t like anyone who sues for money damages (unless, of course they themselves are injured.)         

                It’s illegal to racially profile jurors, as the United States Supreme Court outlawed this practice in the case of Batson v. Kentucky,476 U.S. 79 (1986).  Mr. Batson was a black man who was convicted of burglary.  During voire dire (jury selection), the prosecutor peremptorily challenged all four black people on the jury panel.  Batson’s conviction was overturned on appeal because his jury was exclusively composed of white people.  The stated reasoning behind the Court’s decision was that a man is entitled to be tried by a jury which represents a cross section of his community.  Of course, the Court’s unstated conclusion was that a black man charged with burglary in Kentucky doesn’t have a puncher’s chance to be acquitted by twelve white people.  In reality, the Batson jurors may have been fair-minded, color-blind people and Mr. Batson may have been caught red-handed.  It’s just that the case didn’t pass the “smell test.”  Yet in making its decision the Supreme Court Justices expressed their own prejudices against white southerners.  Why did they do so?  Because guaranteeing a fair trial for Batson was more important than offending the sensibilities of the jurors whose liberty was not in issue.  Since Batson, courts have extended the prohibition against profiling to include gender-based jury challenges but the courts have expressed no opinion about other types of profiling.    

                In fact, racial and sexual profiling continues to be an acknowledged, if sub rosa, jury selection technique.  An injured plaintiff typically wants a jury composed of liberal-minded, soft-hearted, generous, empathetic people.  Defendants typically prefer conservative, unemotional, and financially prudent people.  The risk in stereotyping is that people are not always who they seem to be.  So it’s important to get a feel for the person behind his or her job, race, color, address or educational background.  Therein lies the rub and it’s most important to ask questions of the juror which will provide insight as to their character, thought processes and personal experiences. 

Next: Picking a Jury in Queens County

“Eeeney, Meeney, Miney, Moe”

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Judging the Judges

June 16th, 2011 Comments off

It’s one of the lessons they don’t teach in law school or in any of the scholarly tomes on legal jurisprudence. Until you learn it, you are doomed to fail: there are three parties to every lawsuit: the plaintiff, the defendant and the judge. And the man* in the black dress trumps the other two every time.

Underneath the dress, judges are real people. Like all, they have strengths and weaknesses. But there are two prototypes – the “good judge” and the “bad judge.”

The good judge avoids the spotlight and is invisible until trouble brews. He has control at all times, but lets the lawyers try their own cases. He understands that real lawyers have more than one case. He knows that lawyers are real people with families and personal lives. He “moves” his caseload promptly. He also knows when a lawyer truly needs an adjournment and gives it to him. He can’t be walked over. He commands respect without having to demand it. He knows (or learns) the applicable law and all the proper rules of evidence and civil procedure. He makes prompt procedural decisions, but not until he first permits the lawyers to make their legal arguments. He doesn’t take offense easily or arbitrarily threaten to hold attorneys in contempt. He understands that expert witnesses have professional practices and tries to accommodate their busy schedules, knowing that the litigants will suffer if he precludes the expert’s testimony because he is not available at the judge’s “beck and call.” He is willing to work when the trial starts and not procrastinate. He doesn’t try to scare the parties or harass the lawyers. He makes the jurors comfortable. He is an honor to the sacred oath he takes to uphold the “public trust” and faithfully and impartially discharge and perform all the duties incumbent upon them. In short, he channels the wisdom of King Solomon, who implored God to give him “an understanding heart to judge thy people and to know good and evil.”

The bad judge can hurt or kill your case.  He behaves like a tyrant. He interposes himself unnecessarily and tries the case for the lawyer, frequently losing it. He makes facial gestures to the jury, improperly and surrepticiously opining about the evidence in ways that won’t show on the record and, therefore, cannot be appealed. He doesn’t care whether justice is served, as long as he “moves” the case. He will pressure whichever side seems most pliable, regardless of the equities. He will “ice” the jurors by making them  wait  unnecessarily until they become so jaundiced by “the process” that the lawyers feel compelled to settle. He will unnecessarily berate an attorney, often threatening to hold him in contempt.  He relishes the chance to harangue inexperienced lawyers. He doesn’t know the law and doesn’t care to learn it. He forces the lawyers to produce expert witnesses at times when the witnesses have genuine scheduling conflicts, thereby creating unwarranted and untenable animosities between the witness and the lawyer. He makes attorneys sit and wait for days to pick a jury thereby creating office management problems. In short, he promotes the sale of Pepcid, Pepto Bismol, Xanax and Prozac.

Perry Mason, Boston Legal, L.A. Law, Law & Order miss the real action which frequently happens on the bench.  Judges rule their courtrooms like feudal lords. The great ones are like Solomon: wise and courteous. The bad ones are stupid, lazy and/or nasty. Once a client gave me a sweatshirt imprinted with the words, “A good lawyer knows the law. A great lawyer knows the judge.” The lawyer who can’t tell the difference between the good and bad judges, is doomed.

* Author’s Comment: the blogger takes literary license to use masculine pronouns so that the prose flows and does not cause the reader to doze.

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