Posts tagged jury
Keep your head to the sky

Judges don't like it when us attorneys can't stop bickering.  They are irritated by having to deal with our exchanges of snipes, digs and downright insults.

Last month after a trial ended, two jurors followed me down to the courthouse lobby.  They wanted to talk about what happened.  Both commented on how impressed they were that the attorneys acted in a civil manner.  Sure we disagreed with each other and objected and there were tense moments.  But we were not overly disrespectful like the lawyers they saw on television.  They appreciated that.

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Should the dead person have been allowed to tell the story

I told my kids a lot of stories when they were little.  Pictures were good and well.  But what they really liked was when I acted out the characters.

In trial opening is the opportunity to tell the story.  There are no rules that say we need to read it and be boring.  Over the years I have ben a bus, a cross walk, and other various objects or people when I've told the opening story.   But look what happened in this case.  The judge was not used to having a story told with quite as much dramatic flair.

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Ten reasons I'd rather try a case against a good lawyer

An attorney asked me to help try a case a week before trial.  Day one I arrived with a notice of appearance.  The defense lawyer objected due to "unfair surprise."  Overruled.

It was not a complex trial but the defense lawyer struggled.  Mightily.

After the good (for us) verdict came in this is what the jurors said.  They had a really hard time with how bad the defense lawyer was.  They felt very sorry for the defendant for having such a poor lawyer.  Closing argument was so awful they could not even "bear to look" at her.  They had to make extra sure they didn't rule against the defendant because of counsel.  So they tried to even things out.   Thankfully they were able to give us a good verdict but this left a permanent impression with me.

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Direct exam of a supervisor - he was freaked out really bad

We can't help it - us lawyers.  We have to go to school for so long - it's no wonder we stop talking and thinking like real people.  We say "prior" for before and "subsequent" for after.  We love words with lots of syllables.  Because this is what law school drilled into us.

In trial, we distance ourselves when we fail to communicate on a real person level.  That's the beauty of having witnesses who are not experts.  The jury can understand them.

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The psychic jury artist

The air starts crackling.

My mom, Mary Fung,  has come to watch opening.  Her smile stretches the width of her face.  She is wearing a polyester blue and white teeny striped suit that I distinctly remember from the 1970s.  Over a blue pair of Nike shock sneakers that I used to run in.  Hair pinned up in its forever bun.  She looks fairly adorable.  Everyone in the courtroom smiles back at her.

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Direct exam of a father

Family member testimony helps a jury understand the human impact of injury.  The attorney will often become sidetracked by focusing on getting answers to specific questions that dot "i"s and cross "t"s.   Stilted, formal, data-based questioning is a good way to shut down these valuable witnesses.  Words after all, are less important than everything else that goes on when we form impressions.

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Arguing jury instructions

The jury goes back into the deliberation room with two items:  1)  exhibits; 2) written instructions.

It isn't good enough to simply submit your instructions.  You have to argue for them. And if you lose, you have to create a record in the event of appeal.

Here is the transcript of the instruction argument from a trial I handled with my law partner Kevin Coluccio.

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Flippin' it

Everything we say can be turned around and used against our clients.  Lawyers are trained to analyze fact patterns in terms of logical progression.  A leads to B which results in C.  We think if we're logical that's good enough.  But many of members of the public don't believe a thing  lawyers say.  According to various polls, we are one step above or below used car salespeople and politicians (no disrespect intended).

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Complexity is a friend of the defense

In trial, David Ball’s rule is to spend less time on showing fault than proving loss.  His point - we are not going to trial to simply get a verdict of responsibility.    It isn't enough for a jury to tell the defendant "you did it."   The jury needs to make things right.  Our country has decided that isn't done with "an eye for an eye."  Instead, the jury sets a money value that is needed for the plaintiff to get back to even.

The defense wants to turn the jury's attention away from making things right.  It does this by making the jury's job complex.   The defense will fight even those cases where fault should be crystal clear.

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Bad things jurors aren't told in car crash cases

If we could give jurors the full story, they wouldn’t be so suspicious and skeptical.  Generally trial starts off with the jurors more suspicious of the plaintiff than the defendant.   They think the plaintiff is probably very greedy and that’s why a case hasn’t settled out of court.   They feel sorry for the poor defendant.  Some of the laws and the judges who interpret the laws, make it even more difficult for a plaintiff to get a fair shake.  They prevent the jury from hearing what is really going on.   Here are the top three things that jurors have not been told in car crash cases that I’ve tried.20

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Voir Dire

Here are some thoughts on how to immediately and effectively connect with a jury:

  • Stand and face the panel
  • Own the courtroom floor, don’t stand still, don’t pace frantically either
  • Maintain proper interpersonal distance, don’t stand too far away, don’t get too close
  • Don’t think of it as rocket science, think of it as chit chat…organized, focused chit chat
  • Pay attention to body language – yours and theirs
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The Sleeper

After the weather made a fairly poor weekend showing, I wake up to fabulous blue skies.  This means that I arrive at the office in a sleeveless  lace t-shirt top and cropped jeans that end at the knees.  As I look over my calendar I realize - darn.  Double darn.  We still don't have confirmation on a deposit of a verdict in a  minor's blocked account.  I need to go to court at 1:30.  Fortunately, Ed is coming to the office so he grabs a skirt and I'm good to go. Or at least I think I am.

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