Wednesday, November 18, 2009

My day on the other side of the bar

Here are my tweets - and commentary - from jury duty today...

I have to be downtown an hour earlier than usual. Gotta get a move on. #juryduty

Since docket call is usually at 9am and we have to report for jury duty at 8am, I had to hurry myself along this morning. Unfortunately that meant that my wife was in charge of getting our girls ready this morning.

As usual, I underestimate the time it takes to get downtown. #juryduty

For some reason I have it in my head that I can get from our house to the courthouse in 30 minutes. While it's true that it takes less than 30 minutes to get downtown on Memorial -- I always forget how long it takes to get to Memorial. I wasn't that late.

I see they finally got rid of the metal detectors in the jury assembly room. #juryduty

More on metal detectors later.

While packing up for the move I found a book I hadn't seen before - "The Moviegoer." Looks interesting. #juryduty

Not knowing how much time I had to wait I brought it along. It's got promise. It was written by Walker Percy and won the National Book Award in 1962. The story is set in New Orleans and revolves around a stockbroker living in a world of boredom and sameness. His escape is through the movies.

They just announced that the doors were locked. We are being held captive. #juryduty

"Welcome to the Hotel California..."

Loren Jackson, the new district clerk, has put an emphasis on "customer service:" He's a fellow alumnus of South Texas. #juryduty

I've mentioned it before, but serious props to Mr. Jackson and the work he has done with the District Clerk's office. They are - dare I say it - on the cutting edge of technology when it comes to delivering information to attorneys.

Purpose of voir dire is to pick a "fair and impartial jury?" That's not what I was taught. #juryduty

The last thing I want is an impartial jury. I want a jury whose attitudes and beliefs are such that they will bend over backward, if necessary, to find my clients not guilty. I use every tool in my toolkit to identify the ones I don't want and to allow the jurors to educate themselves on the issues I think are important to my client's case.

Cattle herding time. #juryduty

I've been assigned to a civil panel. Now I'm standing in a blue outlined area in the basement. #juryduty

The deputy clerk calls out a range of numbers and tells the jurors which box to stand in down in the basement. They sent 50-60 jurors to the felony courts and 48 to our court. The clerk gives us a color and we look for the big box outlined with that color tape and stand there and wait for the bailiff. He assigns us new numbers, lines us up and marches us toward the tunnels.

I cheated and used my courthouse pass to avoid the metal detector. #juryduty

There was no way I was going to go through a metal detector if I didn't have to. There really has to be a better way to do this. No one wants to have jury duty and to force the 30% of the people who actually show up to go through a metal detector is ridiculous. The people who show up for jury duty are the same people who usually show up to vote -- I think they have enough sense not to bring a weapon to a courthouse.

We're in the hallway waiting to go in. I know the bailiff from a trial a few years ago. My boss almost got tossed in jail. #juryduty

Back when I was in law school I worked as a clerk at an insurance defense firm. I sat second chair in about a dozen jury trials in and around Houston. One of them was in the 127th Judicial District Court. The judge at that time was Sharolynn Wood.

In this one particular trial, the judge and plaintiff's counsel both taught part-time at the University of Houston Law Center and were well acquainted. There were some rulings that didn't make a lot of sense and hurt our defense at trial. My boss kept trying to get a couple of tidbits into evidence but the door was being slammed shut on him everytime.

He asked a witness a question and, as the witness began to answer the question she thought she heard, the judge yelled at my boss to stop and sent the jury out. She threatened to hold him in contempt if he broached the subject one more time - even though it was the witness who brought up the verboten incident.

Since he was the attorney for the insurance company I guess I shouldn't be too surprised. #juryduty

Apparently the tweet I sent before this one never made it to the ether that is cyberspace. I commented that Plaintiff's counsel was giving a pretty good lesson in how NOT to conduct voir dire. As you will see later, he spent a good 10 minutes telling us how this case ended up in district court with the insurance company as the plaintiff.

While I'm sure his law school professor would appreciate the jurisdictional posture of the case, no one on the panel did and it didn't help him discover how anyone thought or felt about the issues in his case. From there his voir dire was very predictable -- workplace rules on reporting injuries, questioning people who were injured on the job, questioning people on back injuries and whether anyone knew a laundry list of doctors.

He never once asked what I think is the most important question you can ask during voir dire - "Why do you feel that way?"

Attorneys were given 45 minutes a side in a case about money. I'm given 20 minutes to pick a jury in a criminal case. #juryduty

The bailiff is a good-naured fellow but the court reporter has an attitude. #juryduty

The court reporter got quite snarky whenever she couldn't hear what a panelist was saying. She would bark at the juror to speak up or stand up so she could hear -- not once did she use a magic word.

What a surprise. I didn't make the panel. #juryduty

While I still think it would be fascinating to sit back in the jury room and observe a group of strangers deliberate over a case, I can't say I'm too interested in sitting through two days of testimony in a worker's comp case - especially since I have to run soccer practice this afternoon.

It was interesting to see how many folks who made the jury didn't say a word during voir dire. #juryduty

Plaintiff's counsel spent about 10 minutes explaining how the case got to the courthouse. Who cares? #juryduty

No one asked panel our attitudes toward insurance companies or corporate employers. #juryduty

No one went "down the row" with their questions. No looping responses. No one used any scaled questions. #juryduty

Defense counsel - who represented the injured worker - had a good ice breaker. He was more conversational, too. #juryduty

Remember the 80/20 Rule in jury selection - the attorney should speak no more than 20% of the time; let the panel talk. #juryduty

Let there be no mistake, I am no expert in voir dire. I am a sponge, however, when it comes to reading and listening to others talk about about how they do it. I will also say that voir dire at the civil courthouse is a very different beast than voir dire in the criminal courthouse. You would never hear a good criminal defense attorney refer to his client as "my client." In a criminal trial you want to personalize your client for the jury on the belief that it's easier for a jury to convict a "defendant" than it is for them to convict a "person."

Both attorneys referred to their clients as "clients." I found it hard to believe that the insurance company's attorney never tried to humanize the insurer. The injured worker's attorney didn't refer to his client by name -- worse than that, he didn't even sit near him during voir dire. If you can't interact with your client, or show that you are concerned with his or her well-being, then how the hell can you expect a total stranger to care?

Neither attorney made any attempt to get everyone on the panel involved in the conversation. I kid you not when I say that half the folks who are sitting on that jury never answered a question. I know that even with 45 minutes, that talking with 48 people isn't easy -- but that's why you use scaled questions, that's why you go down the line asking everyone in the row how they feel, that's why you loop answers and ask panelists if they agree or disagree with what their fellow juror just said. You can't make a competent choice on a panelist if you haven't spoken with them.

Even though the injured worker's attorney did a slightly better job - I still have no idea who is client is or what he's going through. All I know is that he claims to have hurt his back on the job and needs an interpreter when he testifies.

The judge just walked into El Rey. #juryduty

Just had a nice chat with the judge. He said trying to figure out why a jury comes back with the verdict they do is fascinating. #juryduty

The judge in this case is one of the new judges who was elected last year (has it really been a year since President Obama was elected?). He said his favorite part of his job is the sociological aspect of it. He said he always learns something when speaking to the jurors after they have rendered a verdict in a case.

Look, jury duty can be a royal pain in the backside, but, the United States is one of the few countries that allows trial by jury in just about every case. We all have a constitutional right to trial by jury if we are charged with a criminal offense but that right rings hollow if people don't report for duty.

So, the next time you get that jury summons in the mail, go and enjoy the experience and help this continuing experiment in government by and of the people that's been going on for the last 233 years.

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