The Jury You Pick

In John Grisham´s The Runaway Jury Celeste Wood sues Big Tobacco after her fifty-one year-old husband dies of lung cancer. Other plaintiffs against the tobacco companies had failed in sixteen previous trials. But Nicholas Easter was not on those juries.

Having manipulated the system, concealed his motives and gained selection, Easter - played by John Cusack in the movie adapted from the book - deftly becomes the unspoken leader of the jury. He can direct its votes as he wishes - and sell those votes to the highest bidder.

It baffles the experts and panics the attorneys. Should they bid for the jury´s verdict?

In Grisham´s other novels the attorneys have the attention, power and control. But this novel gets it right. The jury makes the call.

The movie changes the issue from the tobacco industry to gun control. But that really doesn´t matter. No matter what the issue, the jury makes the call.

That is why Big Tobacco - or Big Industry - will pay the experts to pick the jury. That´s where the trial is won or lost.

The judge presiding over my first criminal trial understood this.

"Judge," I said, "I know the trial is set for next week, but I can´t in good conscience represent my client, and he wants a new attorney."

"Sorry," he said flatly. "The trial begins as scheduled."

"I´m afraid I need to withdraw, your honor."

"Too late. I won´t allow it."

"Your honor, my client said if that were your position then he´d prefer to represent himself."

"I won´t allow that either."

"Excuse me, your honor, I don´t understand. Why not?"

"Because in twenty years on the bench I´ve never seen a criminal defendant without a lawyer get an acquittal. And I don´t want it overturned on appeal."

Sure, I had other legal options. But it was my first criminal trial, and I would have to try a lot more before this judge. It was not the time to press other options.

But I was astonished at the judge´s comment. Twenty years, no acquittals without a lawyer. I was struck with such apparent injustice. Didn´t the truth of the case have something to do with the verdict?

I wondered aloud to the judge about such a record.

"Defendants can´t pick a jury," he said. "How can they win if they don´t know how to pick the right jury?"

If you have a case that may go to trial, make sure your attorney knows how. Because the judge was mostly right.

We would like to believe it´s easy to find a fair jury. But we all have experiences that prevent us from being as impartial as we would like. And those experiences affect the way we look at things.

Who will more likely believe the officer used excessive force? The devoted son of a policeman or a past victim of police brutality?

Who will more likely attribute negligence to the West Virginia Mining Co. when a mine collapses on its crew? A company shareholder in Chicago or a daughter whose father died in a construction accident in unsafe working conditions?

But those are clear examples. What if the juror is an attorney who once sued doctors for malpractice? But further questions show she has two brothers who are doctors. Would you want her on the jury in a medical malpractice case?

Ask your attorney some important questions.

What kind of jury is best for your case?

What will be done to prepare for jury selection?

How much time will the judge allow for voir dire - the process of selecting jurors?

What questions will the prospective jurors be asked and why?

Will a questionnaire of preliminary questions be used if the judge allows it?

Will a pre-trial motion ask for a larger jury panel?

And here´s an important one. Who is not wanted on the jury?

The attorney can without any stated reason remove a limited number of people from the jury panel. The lawyer uses his peremptory challenges to do this. The attorney can also for well-established reasons remove anyone, like when a potential juror admits to an inability to be fair about the case.

So ask how the attorney intends to use his valuable but limited peremptory challenges.

Remember, too, that it is critically important to ascertain how a jury may respond to your attorney. Will they like him, respect him and give him a fair hearing?

Jury experts observe that in civil suits an unhappy jury never gives a favorable verdict to the one seeking damages. And in a criminal case an unhappy jury never gives an acquittal to a defendant.

The reason is simple. Jurors will express their anger by denying compensation for the plaintiff and denying acquittal to the defendant. You didn´t give them what they wanted, which was a quick or pleasant trial, so they´re not going to give you what you want. And they figure the one suing or the one accused is responsible for their compulsory inconvenience.

Will your attorney have the ability to create a cordial relationship with the jury? Can your attorney establish a relationship that makes the jury´s experience a pleasant and interesting one? Or will your lawyer offend them and make them unhappy to be there?

So not only ask your attorney´s strategy. Observe the interpersonal skills, too.

I admit I didn´t understand all this when I picked the jury in that first criminal case.

The state had accused my client of assaulting his girlfriend. The prosecutor had offered a fair plea-bargain. If you had listened to the 911 tape you would have thought it more than fair. Actually, if you had had the time, you would have wanted to be on the jury so you could convict him. If you have a daughter, you might have wanted to do even more.

"Hank," I told him, "I can check out every Perry Mason tape at Blockbuster Video over the weekend and watch them all twice. But next Thursday when I step into court I will not be Perry Mason and I can´t get you an acquittal. Take the plea."

She was driving down the highway between Oklahoma City and Tulsa when they got into an argument. She pulled over. He grappled for the keys. He slammed her head into the steering wheel and pushed her out of the car.

In the flurry of preparation for the trial, however, I found his defense. I don´t know how I had missed it before. But the police officer noted that when he arrived at the scene the victim was too drunk to give a statement.

Hey, if she was too drunk to give a statement, she was too drunk to be driving.

He asked her to stop. She wouldn´t. He forces her to stop. She hits her head in the struggle. She finally pulls over and angrily gets out of the car, stumbling onto the road.

He had to keep her from driving in defense of his own life and other citizens of the fine county hearing the case. That would be his defense.

I had been scared to death of getting a religious and conservative jury, but that was about all you would find in this county. On Sunday morning the only citizens not in church were the few whose hangovers made it too painful to go. Now I couldn´t wait to invite the devout into the jury. How could they convict a man who saved them and their children from a drunk driver?

Just for extra security I selected two rough looking young men who appeared to be part of the Sunday morning minority. They chewed tobacco and drove the loudest trucks in the parking lot. I had a hunch they might be sympathetic to the accused.

Well, that jury did acquit my client.

But they deliberated a long time.

I suppose they couldn´t decide what they hated most - domestic violence or drunk driving.

I would like to believe that "beyond a reasonable doubt" played a role, too, but I don´t want to hazard a guess about how much.

Other related articles:

• The Attorney Who Wins
• The Judge Who Rules
• The Law that Matters
• The Jury You Pick
  
  
• Class Action Sweepstakes
• How to Use Lawyers-and-Laws.com
• Why Read the Law?