Lawyer Joins the Chosen Few

by Micheal F. Lamb, published in The Montana Lawyer 

My name was drawn for jury duty.  I left the office at 9 a.m. on a Monday morning, expecting to be back in my office in a half hour, an hour at the most.

It wasn’t to be.  The lawyers involved did me a favor.

We concluded deliberations Friday evening at about 9:30.

I learned a number of lessons, some worth passing on.  It is unwise to make general conclusions on the basis of a singular experience; however, the likelihood of having a similar opportunity is somewhat less than lightning striking twice in the same place.  And since it is always unwise to miss the opportunity to say something good, I offer the following observations for what they are worth.

COURTESY PAYS

I was immediately impressed by the courtesy and deferential respect with which each member of the jury treated the others.  On Monday morning we were strangers.  By Friday and the beginning of deliberations, we had spent several hours together informally in the jury room in the morning, during recesses and while matters were argued to the judge.

We visited with the other members of the jury individually, in small groups, and all together on every subject from international politics to children and grandchildren – everything except the lawsuit.  Common acquaintances were identified as well as areas of common interest.  A metamorphosis occurred, and added to the courtesy and respect was a sense of collegiality and friendship.  We were suffering together.

Every member of the jury was on his or her best behavior.  So was every member of the court staff.  So was the judge.  Trial counsel must be too.  The jury identifies a lack of courtesy or “cheap shot,” no matter how clever, for precisely what it is.  And in the courtroom environment such antics are even more offensive than they might be otherwise.  Counsel gains nothing by breaching this code of conduct unless a witness or opposing counsel, by evasive answers, bad attitude or otherwise, forces you in full view of the jury.  Turn the other cheek:  “It is the individual” who breaches the code of courtesy who will suffer for it.

Also attending the courteous, though serious, atmosphere is an enforced deliberateness in communication among the jurors.  It is the result of not being allowed to talk about the case.  The jury as an entity has promised not to make a decision and, as a group, cannot be talked into or out of anything until it has all of the information.  Jurors are gathered together to make a decision as a group, but they can’t deal with the case as a group until the evidence is totally presented.  Until deliberations begin, counsel are appealing to jurors on an individual basis, not to some group mentality or perceived consensus.

JURY CAPACITY

The collective intellectual capability of the jury for recall and analysis is phenomenal.  Jurors miss nothing, regardless of its significance.  Client, witness, and attorney attitudes, demeanor and body language, inconsistencies in the case or testimony, and gaps in the evidence are all identified by the jury’s collective brain.

In our case, the plaintiff’s counsel presented medical testimony about the nature and extent of his client’s radiating back pain.  The documentation generated after the initial treatment referred to an injury and resulting pain on one side of the body.  However, all of the subsequent medical records and even the defense doctor’s evaluation referred to treatment for radiating pain on the other side.  I thought I misheard the testimony and that this explained the inconsistency.  At most, I assumed the first doctor misspoke.  Defense counsel never focused on it.

When, during deliberations, it came to light that several other jurors had caught the same inconsistency, the troubles began.  Neither counsel had provided any explanation.  So the jury began speculating about precisely what was going on.  The easiest explanation was that the doctor misspoke.  An equally palatable but less likely alternative was that defense counsel had not identified the inconsistency or, having recognized it, saw it for what it was, i.e. earlier symptoms of an injury that grew progressively worse over time.  However, a third alternative, that the plaintiff was trying to pull a fast one, was the option with the most appeal.  No one likes to be made a fool and the result was that the jury placed the plaintiff’s credibility under perhaps an even higher–power magnifying glass than it might have otherwise.  The jury decided the issue by reaching a consensus on the plaintiff’s credibility.  Incidentally, he passed the test.

After the trial, plaintiff’s counsel confirmed to me that he knew of the inconsistency and made a tactical decision on how to deal with it.  It was the right choice in this case.  Whether that decision is right or wrong in a particular case, the lessons are the same:  1) the jury doesn’t miss anything, and 2) if you can help it, don’t leave logical (not necessarily legal) gaps or inconsistencies in the evidence which will allow the jurors to speculate.  They will fill the gaps with speculation which has more potential power than any evidence.  Worse yet, consider that if the jury perceives an omission or inconsistency in the evidence as intentional, they may punish your client for your apparent dishonesty.

At the end of the week, I believed that I had heard everything that occurred in the courtroom.  I had listened with close and deliberate attention to everything that was said.  However, during deliberations several items of testimony I somehow had missed, but were considered significant by various members of the jury were brought to my attention.  Other people expressed surprise at testimony that somehow had escaped them.  The lesson:  if there is something the jury must hear, then get the jury’s attention before you say or elicit whatever it is that is so important.  Don’t let the jury resolve the question of what actually was said by a vote.  Incidentally, focusing the jurors on testimony should not be confused with repeating it:  nobody likes to be patronized, especially by lawyers.

EXPERT JURORS

Everyone has used the instruction that invites the jurors to bring to their deliberations the knowledge and common sense that they have acquired over their lifetimes (MPI 1.03).  Depending upon the particular case, this invites to a jury room the expert witnesses who weren’t called.  It can win or lose your case.  Know who those potential experts are.

To illustrate, our case centered on a dyslexic young man who was involved in an automobile accident.  He contended he was disabled from further employment as a journeyman boilermaker because of injuries to his back.  Factual issues raised and addressed during deliberations included:  1) the adequacy of the accident investigation; 2) the nature and extent of the plaintiff’s injury and disability; 3) whether the type of back injury involved could progress or evolve as plaintiff asserted; 4) what was required of plaintiff as a boilermaker and, accordingly, whether in fact he was disabled from that work; 5) the extent to which the plaintiff’s dyslexia would impair his ability to find alternative employment; and 6) what “the law” as set out in the instructions required of us.

Fortunately, we had all the experts we needed right in the jury room.  No less than six people on the jury had suffered significant injury to their backs requiring a doctor’s care and in some instances surgery.  We also had a nurse with experience treating people with chronic disabling back injuries similar to those described by the plaintiff.

We had a teacher with experience dealing with dyslexic children.  We had a retired policeman who had conducted literally thousands of accident investigations.  We had two people who, in earlier years, had worked in heavy steel skilled trades analogous to the boilermakers.

Finally, of course, we had a lawyer, the legal expert.

Experts everywhere!  And those individuals were invited to bring their “common sense” and “life experiences” to the deliberations.  Those resources were as important to the jury as the actual evidence as we worked towards a verdict.  To the extent that issues fell within an individual’s area of expertise or, more correctly, perceived expertise, their analyses and conclusions had a tremendous impact on how we resolved the question.  And, of course, that expertise was delivered with a coating of that person’s predilections in the case.  To the extent possible, identify those gray areas in the case about which the jury might have some question so that counsel can identify during voir dire the people who will be the de facto “experts” and elicit their position or predilections.

FOLLOWING “THE LAW”

While I have had contrary experiences related to me, in our case the instructions over which counsel worried painstakingly for untold hours and which the judge considered for many more were, upon their delivery into the jury room, left in a stack in the middle of the table.  As deliberations proceeded and we identified questions, no one except myself ever appeared to contemplate that they might find any of the answers in those instructions.  On two occasions, when questions were directed to me as the “legal expert,” I reached into the “pile of law” in the middle of the table and extracted the solution.  The lesson:  If you want or need the jury to focus on one or more instructions, identify them for the jury, commit the jury to reviewing them in the jury room and most importantly, explain how they fit the evidence.

One particular issue deserves special comment.  Juries generally receive a stock instruction directing them to decide the case based upon the evidence (MPI 1.101).  Nonetheless, the first question raised and discussed in the jury room was whether the defendant had insurance.  If the discussion had proceeded, the size of the verdict and perhaps even the decision of the jury on liability would have been affected by the result of the collective speculation of the jurors on coverage issues.  Unfortunately, or fortunately as the case may be, a lawyer was present in the room to remind them that the insurance issues was not part of the evidence and that we were required to decide the case on that basis.

Several people in the jury room felt that considering a case without that information was silly.  They wanted to deal in reality.  Along the same lines, later during deliberations others on the jury wanted to know whether the plaintiff’s own health insurance might provide coverage and what possible interaction workers’ compensation benefits might have, i.e., what the plaintiff really needed to be compensated for his injuries.  Once again, they wanted to know what the situation really was.  And, once again, the admonition that this was not part of the evidence was not well received.

It is one thing to advise the jury that they must decide a case based on the evidence.  However, in light of the existence of mandatory liability insurance and the public’s general awareness of insurance and insurance related issues, that instruction does not go far enough.  The court should tell the jury what it requires of them, i.e., tell them they are to decide the case only on the evidence.  Then the court should tell them they are not to speculate or consider the existence of insurance or other benefits available to either the defendant or the plaintiff in reaching their verdict.  If that doesn’t happen, the jurors individually or the jury collectively may draw conclusions about these issues which they will factor in the “just” result they strive to attain.

I am convinced that if the jurors are told affirmatively not to consider something, they will not.  On the other hand, if they are invited or feel free to speculate, they will, with passion.

CONCLUSION

Much has been written, and more has been said, about the unpredictability and apparent capriciousness of a jury.  That perception apparently is as old as our legal system.  Whatever cynicism may pervade our society generally, however, a jury of 12 Montanans is genuinely a greater whole than the sum of its component parts.  It is the best expression of what is good in our society and justice system.  Any perceived unpredictability or capriciousness is more likely a consequence of the fictions extant in the legal process or tactical decisions of counsel which require jurors to fill perceived gaps in the case.

Individual jurors and the jury as a whole in this case took their job very seriously.  While deliberations brought to light many differences of opinion, we worked them out in a constructive way with the same courtesy the judge, court personnel and attorneys exhibited in the courtroom.

The way that the collective recollection, varied life experiences and expertise of individuals were efficiently marshaled to deal with the issues was remarkable.  I was proud of the jurors and to have been one of their number.  I was proud of the court staff and the professionalism and calm efficiency which they brought to the process.  I was equally proud of the skill, thoroughness and dedication with which all four counsel involved represented their clients and presented the case.

At least in Montana, and at least for the present, it is still an honorable thing to be a participant in the legal system.

It isn’t “Boston Legal” but it works.

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