ARTICLE: FIGHTING FOR JUSTICE THROUGH JURY TRIALS

The Jury Trial: Persuasion, Engagement, and Empowerment

by Jon Katz

Victory at trial demands full focus on the jury at every stage of the case. As important as the judge may be, the jurors decide liability, civil remedies, and, at times, criminal sentencing. Awesome power is placed in the hands of these citizen judges, many of whom have never even sat on a jury before, and none who have been formally trained for the role.

Trying a jury case demands persuading, engaging, and empowering the jury. Persuasion starts during the jury selection process. To merely seek the best jurors during jury selection is to miss a golden opportunity at persuasion.

Some jurisdictions, including Virginia, permit attorneys to talk directly with the venire panel during jury selection, through voir dire. Often pronounced "vwar deer" in the North, and "vore die-er" in the South and West, it has been said that voir dire is more often permitted in the places that pronounce it the second way.

Through direct jury voir dire, the trial lawyer can present the theory of the case, can start sensitizing the jury to the case, and can start familiarizing the jury with the client. This way, by the time opening statements begin, the lawyer and jury hopefully already know each other. The opening statement becomes a continuation of the conversation that started during voir dire.

Unfortunately, many jurisdictions, including Maryland and the District of Columbia, tend to conduct jury selection through the judge. With judge-run jury selection, the attorneys submit proposed jury questions for the judge to read to the jury.

Even in jurisdictions that have judge-run jury selection, the lawyer may move for brief attorney-run voir dire. If the judge expresses concern that time will be wasted by granting such a motion, the attorney can offer to subtract time from closing argument for every minute taken during attorney-run voir dire; suddenly, voir dire can hardly be viewed as a time waster.

Even if the judge says no to lawyer-run voir dire, the attorney can ask that each juror who answers a voir dire question in the affirmative be instructed to approach the bench in order to provide information concerning the juror's affirmative answer, to confirm whether the juror will be fair and impartial if seated on the jury, and to be asked follow-up questions by the attorneys. Asking the jurors well-chosen follow-up questions at the bench can enable the attorney to start engaging and sensitizing each venire panel member to the client's case.

During the entire jury selection process, the attorney must listen closely to each venire member and display genuine interest in the juror and in what is being said. This is the jurors' only opportunity to speak in the courtroom. They need to be heard, to be listened to, and to be respected. If the attorney does not listen to the jury, the jury has less reason to listen to the attorney and the attorney's witnesses and evidence.

Jurors ordinarily will not respect, like, or trust an attorney any more than the attorney respects, likes, or trusts the jurors. The same can be said for the world outside the courtroom, as well. In fact, performing well before a jury has more to do with becoming a better person than with the teachings of law school and law books. The techniques to be learned from courtroom experience and from the trial masters are gems, but are only as good as the person who executes those techniques.

The root of persuading jurors is being real, as real as the attorney acts while taking a walk with a good friend. After all, to not be real is to be false, and to be mistrusted. To be real in front of a jury can be scary, because being real means revealing our weaknesses as well as our strengths. However, to hide our weaknesses makes the jury wonder what we are hiding. It is better to admit to the jury a concern about a weakness in the case or about a fear of letting down the client, than to try to hide such concerns only to end up lugging them along like a fifty-pound ball and chain.

The jurors must be engaged. To tune the jurors out during the trial is to invite being tuned out by the jurors. Notepads, over-thinking, and relying too much on memory are a barricade to engaging the jury. By the time the trial starts, the attorney has hopefully absorbed so much of the facts of the case, the passion for the case, and skills needed to win the case that the attorney will be in the moment, with little reference to pre-written notes or outlines. The jury trial is the time to be in the moment, as much as the batter at the plate must be in the moment. It is better to discard prepared notes and miss ten percent of an intended trial presentation, than to be reading an opening statement, witness examination, and, most importantly, the closing argument.

To engage the jurors during direct and cross examination can be difficult. So much else is going on at the time. The opponent may be making objections, the opposing witness may be slipping away from cross examination, and the direct examination may not be going as intended. Nevertheless, during the whole trial, natural eye contact with the jury is essential. This natural eye contact tells the jury that the attorney cares about and respects the jury, and the eye contact also keeps touch with the jurors' non-verbal cues about their view of the trial and the evidence presented. Eye contact also helps assure that the jury is not getting bored, or at least that the boredom is only directed at the opponent's case.

Persuading the jurors also involves empowering them to deliver a victory. The jurors are given tremendous power to decide the parties' fate in the litigation, and want to make the right decision. Jurors want to solve problems, and will not necessarily obey a judge's jury instructions if those instructions appear to interfere with doing the right thing. To argue the law to the jury throughout closing argument is a mistake. The better focus is to help the jury feel good about delivering a victory to the attorney and the client.

The jury trial is not about presenting the jurors with the raw facts and allegations to sift through on their own. The lawyer, if well prepared, has already mentally tried the case, has already found strong reasons to support the case, and is as close as ever to believing in the case. The trial is the time to share why justice is on the client's side, to persuade the jury, and, hopefully, to leave the courtroom victorious.

Adapted from Jon Katz's article appearing in Vox Populi (1997), the newsletter of the Philippine American Bar Association. 

     Marks & Katz fights tirelessly for justice for our clients, with 30 years of combined experience. We are driven to win, put our clients ahead of money, and are ever-passionate for our clients and their causes. Our law partners Jay Marks and Jon Katz serve our clients directly, with caring and understanding. Jay and Jon met in 1969, attended public school together, trust each other deeply, revel in the thrill of victory, and fight side by side. We opened in 1998, and look forward to many more years of doing good for our clients and society. We are dedicated to justice, welcome tough cases, and never shy away from controversy. 

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