Deliberations

Twittering Voir Dire

There's a new kind of journalism coming from a Kansas courtroom this week.

It's not just a live blog; those have been around for awhile.  When I started this blog last February in the middle of the Scooter Libby perjury trial, one of the best jury resources was the live blog of that trial at firedoglake.com.  After that came wonderful live blogs from the Daphne Wright murder trial in South Dakota and the James Seale Ku Klux Klan murder trial in Mississippi.

It's not easy to live-blog a trial, but the best live blogs are better than being there, immediate without the boring.  By necessity, though, they're not truly "live."  The blogger needs to collect enough information for a post, and so posts go up every few hours, or even at the end of the day. 

Twitter journalism

Enter Ron Sylvester, a reporter for the Wichita Eagle and its online version, Kansas.com.  Sylvester is reporting a murder trial in a series of 140-character Twitter posts.

Twitter, you may remember, is the leading "microblog" site, with millions of people answering the question "What are you doing?" all day and night in "tweets" of 140 characters or fewer.  There's a lot of silly tweeting going on at Twitter, but more and more, serious professionals are having professional conversations.  I've been checking in there for the last month or so, happily "following" the thoughts of Kevin O'Keefe (Real Lawyers Have Blogs), Grant Griffiths (Home Office Warrior), Susan Cartier Liebel (Build A Solo Practice), Carolyn Elefant (My Shingle and Legal Blog Watch), Gideon (a public defender), Rush Nigut (Rush on Business), Brett Trout (Cyber Law), and Nicole Black (Sui Generis and Women Lawyers - Back on Track), among others. 

My corner of Twitter has mostly been cheerful small talk and link sharing, but suddenly this week it's news.  Kevin O'Keefe wrote today about Twitter's role in letting the world know about today's earthquake in China.  Less drastically, but central to my blog's topic, Ron Sylvester is reporting jury selection with a fresh and direct style you don't often see, except on Twitter. 

"You could see lawyers tensing up"

Today was Day Two of what will be at least a three day voir dire.  To take just a few examples from today, Sylvester is noting:

• Practicalities.  "One juror excused for not being able to look at crime photos. You could see lawyers tensing up, expecting others to see that as a way out."
• Lessons.  "Even if you're against the death penalty, if you say you can consider it, you can qualify to sit on the jury."
• Ironies.  "When I left, a woman was dismissed because she couldn't consider the death penalty. I return: a man is excused for not considering life."
• Light moments.  "On[e] juror forgot to turn off his cell phone. Ring tone: "Carry on My Wayward Son," by Kansas (1976)."

At his blog Technolo-J ("getting in touch with journalism's technical side"), Sylvester wrote on Saturday about the decision to cover the trial this way, and what he's learning.  I'd argue with him on only one point:

And it’s only the first week.  The intense and exciting part – the real evidence of the trial - is yet to begin.

Of course we know that jury selection is the exciting part.  Thanks to Ron Sylvester for covering it so well. 

_________________

Note:  After a few false starts, I'm finding Twitter to be a good forum to say things that are off-topic or too short for this blog, and to communicate with an interesting and growing group of people there.  My Twitter page is here, as good a place as any to start if you'd care to join in.

(Photo by J. Samuel B. at http://www.flickr.com/photos/lobsterstew/220109812/; license details there.)

Late For Uma Thurman

"If something happens and I post on it in 45 minutes, I'm timely.  If something happens and I post on it the next day, it's kind of stale." 

So (or approximately so) said Mark Herrmann of Drug And Device Law Blog today, when I had the honor of speaking on a panel with him at the State Bar of Wisconsin's annual convention.  Our topic was blogs and blogging, and we were joined by charming Bonnie Shucha of WisBlawg.

I secretly winced when he said it, because I knew my post today would be stale.  It was yesterday that Wall Street Journal reporter Emily Steel wrote about the jury deliberations in the Uma Thurman stalker trial this week -- from her privileged vantage point as a deliberating juror herself.  I saw it in the WSJ Law Blog, and put it in my news feed right away, but I didn't get a post up. 

Different posts for different folks

Now, of course, the story is all over not only the blogs but the news wires, with its twin attractions of eavesdropping on a jury and Uma Thurman, for heaven's sake.  Different blogs had different perspectives, and they're all good:

--Scott Greenfield at Simple Justice got to it right away, of course.  He highlighted the part I keep harping on here:  there were two lawyers on the jury, and a comment from one of them made a big difference.  "So much for getting legal instructions from the judge, with the attorneys capable of objecting and preserving," says Scott.

--Jeralyn Merritt at TalkLeft picked up the lawyer's role too, and also caught a media angle.  "Perhaps [Steel] just helped the defendant in a bid for a new trial," she says, since Steel documented the juror who saw (and liked) the courtroom artist's sketches.  "Where would s/he have seen the sketch artist's depictions but in a newspaper?" Jeralyn asks.

--Brad Parker at Where's Travis McGee focuses on the lawyer, but imagines himself in the lawyer's place, and wonders what he'd tell his fellow jurors.  (Where's Travis McGee was a new blog to me; thanks to Blawg Review's Ed. for the tip.)

--It took a nonlawyer blogger to question Ms. Steel herself.  "I'd love to know if she told the other jurors she was a reporter and was writing down everything they said for an article," says Jodi of the MamaPop blog.

(Photo by Brandon Weight at http://www.flickr.com/photos/brandonweight/2267541061/; license details there.)

Commitment Issues

Is the Fifth Circuit trying to change the way prosecutors talk to jurors?

A few weeks ago I shocked the world -- okay, surprised a few people -- by pointing out United States v. Gracia, in which the Fifth Circuit reversed a drug conviction, finding that the prosecutor had improperly "vouched" for the credibility of federal agents who testified.  I thought, and some commenters (even defense lawyers) agreed, that what the Fifth Circuit had called vouching in Gracia was actually fairly routine argument. 

"Please raise your hand"

Last week the Fifth Circuit decided United States v. Fambro, and came close to reversing another conviction, this time because it didn't like the prosecutor's voir dire questions.  As in Gracia, when you look at what the prosecutor actually said, you might find the questions familiar:

Let’s say that law enforcement finds a box of grenades and they’re trying to determine whether I possessed those grenades. My first question, would it be important to you whether the grenades were found in my house or not? Would that be an important factor, do you think, in determining whether I possessed the grenades? How many think it would be important? If you do, please raise your hand.

Let me add another piece of evidence onto it. Let’s say the grenades are found in my house and that they are found in a box, and with the grenades in the box are some adult T-shirts that happen to fit my size, that are the size of shirt I wear. Do you think that would be important in determining whether I possessed the grenades or not? Okay. If you do think it’s important, please raise your hand.

Let me add one more twist to our little fact scenario. Let’s say that during an interview with law enforcement, I’m talking with the officer and I say, yes, the grenades were bought in Arizona. I was there and I brought them back to Lubbock. How many people think that would be important? Okay. Is there anyone here who thinks it wouldn’t be important?

If you had heard all of that and you were asked to decide, did [I] possess the grenades found in [my] house, how many people think I did possess those grenades? How many people think that I did not possess those grenades?

Can't I wait for the evidence?

These are called "commitment questions," and lawyers use them often, at least in my part of the world.  Frankly I don't know why they're so common.  I think they confuse jurors at best, and much more commonly really irritate them.  I've seen jurors resist one question after another like this, shifting uncomfortably while they tried to explain they'd really prefer to hear all the evidence, until they were finally beaten into saying that yes, this or that factor would be important. 

The Fifth Circuit doesn't like these questions either, and cites other courts to the same effect (I'm omitting the citations here):

A defendant’s right to due process under the Fifth Amendment requires an impartial jury at least to the same extent required by the Sixth Amendment. As the Eighth Circuit has explained, “although there are no constitutional provisions directly addressing the use of hypothetical questions during voir dire, there may be circumstances where a party’s manner of conducting voir dire renders a jury [non-]impartial and thereby triggers a Sixth Amendment violation.” We have stated that a voir dire question that “in effect asked the jury how it would weigh evidence it had not heard” would “not be a proper line of inquiry.” A majority of states appear to prohibit hypothetical questions to prospective jurors on voir dire to determine how they would decide fact issues in a case. 

Conviction affirmed

Fambro's counsel didn't object to the commitment questions, though, so the Fifth Circuit needed plain error to reverse, and didn't find it:

Nevertheless, we are unaware of any decision by the Supreme Court or any federal appellate court that has reversed a district court because it allowed commitment questions on voir dire in violation of the due process clause or the Sixth Amendment. Moreover, there was considerable evidence from which the jury could reasonably conclude that Fambro possessed the firearm. We therefore cannot say that the error, if any, was plain.

If your opponent starts asking commitment questions in voir dire, you have a valid objection.  With luck, you'll also have a jury panel that's tired of being badgered.  That's a good start.

(Photo by Ed Schipul at http://www.flickr.com/photos/eschipul/2371505523/; license details there.  Schipul's blog, not photography but PR and marketing, is Brand To Be Determined.)

Jury Notes From Elsewhere, May 4

Good things for jury watchers at other sites lately:

--Elliott Wilcox wonders why lawyers say they're speaking "as an officer of the court" when they want to stress they're telling the truth.  What are they telling the rest of the time?

--Evan Schaeffer has six tips for improving direct examination at Illinois Trial Practice Weblog.

--"I'm a bad blogger" is how Eric Turkewitz starts a review of Mark Herrmann's terrific book The Curmudgeon's Guide To Practicing Law. 

--The "How To Be A Great Trial Lawyer" series at John Day's Day On Torts has more installments than "Rocky," and they're all good.  He's up to Part 14, "A Healthy Respect for the Judicial System."

--Everything at Thaddeus Hoffmeister's Juries is relevant, of course, like this post on how juries in Gibraltar acquit local defendants far more often than those from outside Gibraltar.

--Howard Zimmerle at Quad Cities Injury Lawyers has a fresh and often unexpectedly candid perspective, as in this post where he explains how a well-intended and well-spoken lawyer might decide to draft a complaint in legalese.

--Jon Katz finds points of agreement with his political opposite, Antonin Scalia. 

--Karen Franklin announces the guilty verdict in the Hans Reiser case in Oakland, where Reiser was convicted of killing his wife although her body was not found.  A simple technique the prosecutor used in closing, Franklin explains, might have made the difference. 

--Two juror stories made the rounds this week, but they're best told by master storytellers:  Scott Greenfield at Simple Justice tells about the jurors who were sent home for wearing Hell's Angels' regalia, while Seth at QuizLaw tells about the one sent home for showing up drunk.

(Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

Hizzoner The Foreman

I don't know why a 1999 New York Times story suddenly showed up in my news feeds, but I'm glad it did, because I missed it the first time.  Rudolph Guiliani, then mayor of New York, spent a week on jury duty in a personal injury case that year. 

Not surprisingly, he was foreman.  Not surprisingly, he was a big hit with the rest of the group.  And not surprisingly, the plaintiff lost.

"No."

The story starts:

As five jurors who heard a personal injury case in Manhattan emerged from State Supreme Court, they had praise for the jury foreman, describing him as a regular guy who came across, in their words, as ''unpretentious'' and ''friendly.''

''You'd expect a man with responsibility for a $30 billion annual budget to always be on cell phones during breaks or talking to aides, but he wasn't,'' said Caleb Silver, 28, a business reporter who served on the jury. ''When we took breaks, he took breaks. When we drank coffee, he drank coffee.''

In more typical get-down-to-business style, the famed foreman, Mayor Rudolph W. Giuliani, used just one word -- no-- in announcing that he and his fellow jurors had rejected a $7 million claim from a man who said that searing shower water had scalded his genitals so badly that it had rendered him impotent.

The rest, equally good reading, is here. 

Like a juror

''I let the other jurors express their opinions first,'' Giuliani told the Times, adding that "his fellow jurors had treated him 'like a juror, not like the Mayor.'"  Likewise, "[m]embers of the panel, which consisted of a corporate executive, a college student, a registered nurse and a lawyer as well as the Mayor, said they were unswayed by Mr. Giuliani's presence."  Maybe so.  But if you think those other people, no matter how distinguished, could have talked the mayor out of the verdict he wanted, think again.

And thus we build our list of guaranteed jury leaders.  So far we have lawyers, sitting legislators, the judge's mom, and now we can add the mayor of one of the world's largest cities.  You can leave any of these people on your jury if you want to.  Just understand:  if you do it, you have a jury of one. 

(Photo (c) 2007 Bill Fish Photography at http://www.flickr.com/photos/protectourprimary/477145883/; license details there.)

Finding Good Blogs

This is off-topic, but maybe not so far off, because if there's any blog whose readers might need help navigating the blogosphere, it's mine. 

I know they're out there

Your average trial lawyer isn't spending much time in the world of Web 2.0.  I know, because I was the same way when I started.  I'd heard there were all these brilliant blogs out there, scooping mainstream journalists and opening the windows in scholarship's ivory tower.  But when I looked for them, running regular searches and trying to figure out blog search engines like Technorati, I couldn't find them among the thousands of navelgazers and crazies.  It was like trying to find a new town with an old map.

They're out there, though, and they're worth finding.  I learned the territory one or two blogs at a time, first coming to like and trust a few blogs (and bloggers) and then following their links and blogrolls to others. 

Useful guides

That's still a good way to find good blogs, but it's slow.    You can speed up the process with good directories and guides.  The main ones are:

• Blawg Review, the weekly law blog carnival.  Each week a different legal blogger writes a review of the week's posts in other law blogs, usually trying to outdo all who have come before in creativity and style.  (I was privileged to host Blawg Review last September, and stayed up half the night.)  If you read Blawg Review over even a few weeks, you'll see who shows up regularly;  if you read it regularly, you'll learn of good blogs you might never have seen otherwise.  Blawg Review is itself a blog, whose posts point you to the current host and lots of other things.
• The ABA Journal's Blawg Directory and Blawg 100 list.  The Blawg 100 was controversial when it came out because it omitted some wonderful blogs, and I'm not a neutral source because I'm in it.  That said, I'm a faithful follower of some blogs I first learned of because they were in the Blawg 100. 
• Kevin O'Keefe's Real Lawyers Have Blogs.  It's a blog, not a guide, and since Kevin's company LexBlog sells a software platform and support for blogging lawyers, you'd think it might be a little provincial, but it isn't.  Kevin covers pretty much anything that has to do with legal blogging, and I've learned about many good blogs from his posts. 
• The law page at Alltop.com, a brand new directory from marketing guru Guy Kawasaki.  I wish I'd had this when I first started.  It's a "single-page aggregation," with "the latest five stories from thirty or more sites on a single page."  (Even Alltop finds this hard to explain:  "You can think of an Alltop site as a 'dashboard,' 'table of contents,' or even a 'digital magazine rack' of the Internet.")  The sites and the order they're in keep shifting, and if you want to go beyond law, there are dozens of other pages and new ones coming all the time.  Note to the Francophiles at What About Clients?:  the France page debuted today, en Français. 

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Notes:

1. If you're going to follow more than a few blogs, you need an RSS feed reader, also called a feed aggregator.  If you don't know what that is, a few searches will educate you.  I use Google Reader -- it's fast, free, and works nicely with the rest of Google's products.
2. Full disclosure:  I think I move up in Alltop's algorithm by linking to them, but really, it's good.
3. While I'm off topic and talking about maps (and good blogs), check out the cool mindmaps in Vickie Pynchon's posts this week at Settle It Now Negotiation Blog (here and here), and her wise words on what they have to do with negotiation.
4. Guy Kawasaki and I share a birthday, so if there's anything to astrology, I should be famous and wildly successful sometime soon.
5. Related content here:  A Trial Lawyer's Guide To Social Networking Sites.  Some nonlawyers have told me they found it useful as well.

(Image from Library of Congress via pingnews at http://www.flickr.com/photos/pingnews/2122158366/; license details there.)

Eggs, Milk, Butter, And . . . Darn It.

New research confirms two things.  First, I'm not the only one who keeps forgetting that fourth thing I need at the grocery store.  And second, I probably won't get better at remembering it.  Translation for lawyers:  if you need jurors to keep more than a handful of facts in working memory, you have to give them special tools.

"A certain number of objects" -- and no more

"We found that every person has the capacity to hold a certain number of objects in his or her mind," said Jeff Rouder of the University of Missouri.  He's the co-author with Nelson Cowan of "An assessment of fixed-capacity models of visual working memory," published this month in the Proceedings of the National Academy of Sciences.  (Note:  that link is to the PNAS abstract.  Rouder posts the whole article here at his Missouri bio page, a generous move I hope more scholars follow, but it's extremely heavy going.  Unless you love statistics or have time on your hands, the excellent press release is where you want to be.)

It wasn't easy for Rouder and Cowan to confirm our "fixed capacity," because we've developed clever tricks like "chunking" to get the most out of limited memory space:

Rouder said that to remember a series of items, people will use "chunking," or grouping, to put together different items. It can be difficult for someone to remember nine random letters. But if that same person is asked to remember nine letters organized in acronyms, IBM-CIA-FBI, for example, the person only has to use three slots in working memory.

Nine slots, or three?

Our habit of "chunking" information into our memory slots makes it hard for researchers to understand how working memory really works.  Until Rouder and Cowan devised an experiment that "wiped out" prior information as the subject went along, no one could tell whether subjects who remembered nine facts had kept each one in a different memory slot, or chunked them into, say, three groups of three. 

It doesn't matter to the subjects, of course, how many memory slots they have, as long as they end up remembering nine facts.  But it matters a lot to lawyers.  If you need jurors to remember nine facts, Rouder and Cowan's research suggests, you've got three or four slots to put them in.  If you can't form the facts into meaningful groups, they won't stick.

Remembering to pay attention

In fact, if you can't sort facts into related groups (or give jurors some other tool to remember them, like notetaking) jurors may end up not listening to you at all.  The press release goes on:

Working memory is closely related to attention because it requires attention to hold a number of items in mind at once. People with high working memory capacity have more focus. Those with a lower attention span are more easily distracted.

Next time jurors start staring at the ceiling during your client's testimony, don't get mad; think back.  Where did you lose them?  Likely somewhere around the fifth fact.

___________________

Related topics here include:

• Thinking, And Talking, In Segments
• The Jelly Bean Theory of Keeping Jurors' Attention

(Photo by  tracy the astonishing at http://www.flickr.com/photos/tracy_the_astonishing/2375583350/; license details there.) 

"Your Honor, I Move To Strike Your Mother For Cause"

Ashland, Wisconsin, is not a big place.  Yes, it's "nestled along the shoreline of magnificent Lake Superior," as its Chamber of Commerce says, and yes, it's "a beautiful, close-knit community with an excellent variety of lodging, dining, recreation and attraction options."  But with 8,795 people, it's fair also to call it little. 

One of those people is Ashland County Circuit Court Judge Robert Eaton.  Another one is his mom.  And since he's the only judge up there, it was almost inevitable that someday a court reporter would take down this exchange in voir dire:

[Court]:  Any of you have relatives employed in a law enforcement related capacity?   Ms. Eaton, do you have a relative employed in the law enforcement related capacity?

[Juror] Eaton:  The judge.

[Court]:  I like – I like to consider myself part of law enforcement or I may be disowned.  You are related to me how?

[Juror] Eaton:  Your mother.

"Not a jury bias issue"

It was a case about a stolen Jeep, and Mrs. Eaton stayed on the jury, which reached a guilty verdict.  The reason I know all this is that the case went to the Court of Appeals.  The unpublished (and thus unprecedential) opinion is State v. Tody, released on Tuesday by the appellate court we call District III. 

Let's face it:  there are few towns of any size in all of District III, a huge swath of northern Wisconsin containing a lot more trees than people.  If those counties started disqualifying jurors who know the judge, or even jurors who changed his diapers, they could deplete the jury pool pretty fast.  That may be why the court of appeals had so little trouble upholding Judge Eaton's decision to let his mother stay.  "[A] juror’s relationship to the judge is not, by itself, a jury bias issue.  Unlike a State’s witness, a judge is not associated with either party.  No bias is implicit from a relationship to a neutral party." 

As for Mrs. Eaton herself, her voir dire answers were perfect.  "Eaton did not say she had a 'favorable view of law enforcement,' or that she was 'pro-law-enforcement' or 'pro-prosecution.'  [The defense had argued these were reasons she should have been dismissed.]  From the available facts, we cannot conclude that a reasonable juror in Eaton’s position could not act impartially."

Mothers and wives

Cases where a juror was close to the judge come up from time to time, more often with spouses than with parents.  There's the cute feature story of the judge's wife who cheerfully accepted her peremptory strike in Topeka.  There's a please-let-it-be-apocryphal tale of Judge Irving Younger (I get to mention him twice in a week!) flirting from the bench with his juror wife (and later my property professor) Judith Younger.   (Surely he didn't really ask, "Is there any woman on the panel who'd like to go home and sleep with me tonight?")  And there's the harrowing story of New Jersey judge Andrew Smithson, who left his wife on a panel as a nondeliberating alternate.  The defendant appealed, lost, and then filed a misconduct complaint.  Judge Smithson wasn't punished, but a committee considering the complaint did find that Mrs. Smithson's presence on the jury "created an appearance of impropriety."

Next time . . .

Two things stand out in the Tody opinion as lessons for next time, both pretty basic.  First, you need to be ready to lay the groundwork for cause strikes with good voir dire questions, regardless of how surprised you are to find yourself questioning the judge's mother while the judge looks on.  It looks like the entire voir dire questioning of Mrs. Eaton for both sides amounted to this:

[District Attorney]:  Mrs. Eaton, I know you’re the judge’s mother, do you feel comfortable sitting on a trial where he’s the judge but he’s not party in the case?

[Juror] Eaton:  I don’t think it makes any difference.

[District Attorney]:  Doesn’t make any difference one way or the other to you?  You have no opinion about the defendant’s guilt or innocence?

[Juror] Eaton:  I know nothing about it.

Tody’s attorney also addressed Eaton:

[Tody’s Attorney]:  Do you feel you could be a fair and impartial juror?  Would you have to explain to His Honor Judge Eaton, let’s say you voted for a verdict of not guilty, would you feel you would have to explain or justify why you voted that way?

[Juror] Eaton:  No.

Second, Tody used his peremptory strikes on jurors who were not Mrs. Eaton.  I don't know who those jurors were, and I might have made the same calls if I'd been there.  But it's worth pointing out that of all the people who are likely to be strong leaders on a jury -- lawyers, journalists, sitting legislators -- the most influential of all might be the one person on earth who gives orders to the judge.  If you're going to leave the judge's mother on the jury, you'd better like her a whole lot.

(Photo of the Ashland Marina on Lake Superior from the city's web site,  http://www.coawi.org/node/361)

Lawyers: So Certain, So Wrong

Watch a few mock trials and you'll start to suspect that lawyers have no clue how to argue to juries.  A new study suggests one reason why.

"I rest my case."

Remarkably often in mock trials, here's what happens.  Lawyers tell me they have an analogy or chart or argument they're sure will conclusively show their case is a slam-dunk win.  They present this to the mock jurors, in a voice full of hard-earned pride.  Then they listen to the jurors deliberate, and they're mortified.  The jurors hate the analogy, trash the chart, use the argument to support the other side.  The lawyer was so sure, and so wrong.

Good news from the world of social science:  it's not just lawyers.  Everybody does it.  We all assume that if we like something, the rest of the world is going to like it too -- and when we assume that, we're usually mistaken.  That's the conclusion of the wonderfully named paper "What’s Not to Like: Preference Asymmetry in the False Consensus Effect," by Andrew D. Gershoff, Ashesh Mukherjee, and Anirban Mukhopadhyay, in the coming June 2008 Journal of Consumer Research.  A good press release is here. 

With walnuts and hot fudge?!

The method used in the study was simple:  ask people what they like and how much they think other people like it, and then ask those other people.  So:

• "Participants in one study were asked to choose a movie they like. They were then asked to guess what percentage of their peers liked the movie as well. On average, people estimated that 51.2 percent of other people also liked the movie, a significant overestimate. They also estimated that only 18.2 percent of people, on average, disliked it – a reflection of the belief that more people agree with us than disagree.   In contrast, when asked to choose a movie they dislike and make the same estimate, participants were less self-centered: they thought people would agree and disagree with their opinion in roughly the same numbers."
• "Another study of ice cream sundaes found that those who liked a certain flavor combination – say, mint ice cream with walnuts and hot fudge – overestimated that people would share their fondness for the sundae by 9.9 percent. Those who disliked it only overestimated that people would share their repulsion by 0.8 percent."

I can't help pointing out that a mock trial is essentially that same research method, minus the statistical precision.  Lawyers bring in arguments they really like, and think other people will like them too.  Then we ask those other people, and often they don't.  Best of all, after the mock jurors are done chuckling at the argument, we listen to them talk about what did convince them, and we watch whether and how they're able to convince each other.

Where you're most certain you're right, then, is where you might be most wrong.  A mock trial is one good way to find that spot, and set yourself straight.

(Photo by Nic McPhee at http://www.flickr.com/photos/nicmcphee/428035441/; license details there.  McPhee's blog is I Am . . . Unhindered By Talent.)

Ready For Anything

In voir dire you need to be ready for anything, and anybody. 

I botched this in my first voir dire, a practice one in law school.  "What do you do?" I cheerily asked a mock juror.  "I'm a garbage collector," he cheerily replied.

The great Irving Younger was our trial advocacy teacher at Cornell, and he'd told us to ask open-ended questions to get jurors talking.  I froze.  What could I ask a garbage collector?  Would he think I was mocking his job?  Would I embarrass him?  Or worse, would he be laughing at me?  Hopelessly entangled in overthinking this moment, I moved on to the next person, and learned nothing at all about my garbage collector. 

"Summoned for jury duty in my old male name"

I thought of that guy when my "jury duty" search picked up this inquiry at one of the forums at Susan's Place Transgender Resources, "a support resource for the transgender community":

I have been summoned for jury duty in my old male name. The last two times I was not required to go. I am to check the county web site on the Friday before to see if I am still required to go. It is ironic as I have to report to the courthouse where I plan to file for my name change as soon as I can put together enough cash for the filing fee. Another irony is that my Driver's license and other photo ID is now in my new name. The only way I have to prove that I am the person in the summons is a letter from my therapist stating my transgender status. I hope that should I have to go to jury duty that they will be discreet about it. I plan to go up to the official and immediately explain my situation. I will go in female mode as I have no male ID now. I did not see this coming!!!!

It's a pretty good guess that the lawyers who'll be doing that voir dire didn't see it coming either.  They're at their desks right now, going over the list of potential jurors, trying to figure out what they can from names, ages, neighborhoods, and occupations.  (Every Sunday night I get a surge in searches for sample voir dire questions.)  They think they're ready for Daniel or Thomas or whatever their list says that juror's name is.  But they're not.

You need to be ready for what you're not ready for.  The juror who tells you she has seventeen cats, the juror who tells you his child was killed, the juror who isn't a man after all -- you can't botch these moments.   Your compassion, your awareness, your intelligence, and your character will be judged on how you handle the next thirty seconds.  You need to be at the very least, as the transgender juror hopes, discreet.  Warm, engaged, and unfazed would be better.

Not about you

The more you've done in life, the easier this is.  The lawyers who are most adept at voir dire are the ones who excel at conversation with strangers generally, and those are so often the ones who had a lot of different jobs before they became lawyers.  But it's learnable -- take it from someone who's spent 27 years in the same job, longer in the same marriage, and almost as long in the same house.  You just need to forget about yourself for a second and think about the person you're talking to.  "We all thank you for the work you do," is what I should have said to the garbage man.  "You've been through challenges that few of us can imagine," you might say to the transgender juror.  "Tell me about your life now."

(Photo by Liz Henry at http://www.flickr.com/photos/lizhenry/204197241/; license details there.)