We've heard the basics a hundred times. Don't slouch or grimace in front of the jury. Know where your papers are. Don't be rude. Plan your evidence. Tell the jury where you're going.
Why then do lawyers so often ignore those things? I wonder sometimes if we don't unconsciously reject each person who tries to tell us. If the advice comes from a lawyer, a little voice inside us says lawyers don't know what it's like to be a juror. If the advice comes from a juror, the inner voice says that particular juror was just too dumb to understand us. By the time we're finished, we've decided no one is qualified to tell us how to talk to juries.
I think I've found a qualified juror. A juror who's an internationally known authority on lawyers and professional service firms. A juror whose "seminars and advisory work take him all over the world," who "was named as one of the top 40 influences on contemporary business life in the management book Business Minds." (All this from a London Daily Telegraph article here.) Even the most recalcitrant inner voice might shut up and listen to that juror's advice.
David Maister mentioned recently on his blog that he was on jury duty. I'm not normally the type to write to famous people who have no idea who I am, but this was David Maister on jury duty, so I wrote him asking for details. Yesterday he wrote a generous follow-up article describing his experience. I'm quoting it here nearly in full, because the story of the laborer parishioner who had to sue his own pastor to get paid is as good as the advice that comes out of it.
I’m afraid I don’t have much to say that is profound. The case involved a laborer who was asked by the pastor of his church, he claimed, to perform some basic renovation work on a recently purchased building to make it fit to hold services. There seemed to be no argument that some amount of work was done, but the laborer claimed that all his receipts were stolen (along with his tools) from his truck, and hence could not submit them to the pastor (or the court). We had to decide whether the pastor had promised to pay the laborer, and how much the laborer was owed.
The plaintiff’s case was presented very efficiently by his attorney, supported by testimony from some of the assistants the laborer had hired to help with the work. The lawyer told us what he planned to contend, and called witnesses to back up those specific contentions.
Things started to drag out when the defendant’s attorney took over. As jurors, we were confused as to what it was and what it was not that he was contending. He seemed to taking scattergun potshots at whatever he could think of.
Astoundingly, for a case where less than $80,000 was in dispute, this whole thing dragged on for five days (9am to 1pm).
If there lessons to be learned, they were these:
- If a parishioner is suing the pastor and you want us to believe the pastor, have at least one other parishioner appearing court on the pastor’s side
- Don’t be mean, attacking witnesses as to whether they have ever been arrested, or ever had a drink of alcohol. It backfired.
- If you're trying to make a case, tell us up front what you what you are going to try to prove. We get lost easily.
- If you don’t contest an issue, topic or fact, we the jury are going to assume you concede the point.
- It’s amazing how the lack of organization - fumbling through papers - affected our view of a lawyer's credibility .
- Body language mattered - the defendant slumped and scowled and dozed throughout the plaintiff's case. It turned the jury off
- In post verdict discussions, all the jurors agreed we had formed a strong opinion on the character of the individuals involved within the first 30 minutes of the 5-day trial.
I know this is all obvious stuff, that’s all five days out of my life offered me. What a waste!
It is obvious. It's profound because we need it anyway. Lawyers look for tricks to play in jury selection and presentation, and forget about simple respect for jurors' intelligence and their time. That's why David Maister is far from the only juror to say, in the end, what a waste.
Many thanks to David Maister for writing his description and for allowing me to quote it.
