You're plaintiffs' counsel, twelve weeks into a six-month antitrust class-action trial against Microsoft. For several days, you've been showing the jury videotaped testimony. While they watch, you take advantage of the chance to go back to your office to prepare witnesses, leaving (presumably) your second-chair in charge. Then the judge gets this note from a juror:
"Just wanted you to know that several of the jurors are remarking about the absence of Ms. Conlin during our videotape viewing and that [defense counsel] is here every day. They ... think Ms. Conlin is probably taking vacation on those days and we don't get vacation. And that's not fair because it's her fault that we're here."
Six days later, you suggest settlement talks.
It happened this month, says the Des Moines Register, to Des Moines lawyer and former gubernatorial candidate Roxanne Conlin.
It's rarely one single act that turns a jury off, and it probably wasn't here. Admirers and detractors describe Ms. Conlin as someone who, one can imagine, would quickly be liked by some and disliked by others. Likewise the plaintiffs' case itself was not the kind to appeal to everyone. Over 1,100 people opted out of the class at the outset, some sending a few comments along with the form -- like "[t]his lawsuit appears to be a huge bunch of crap." When the trial finally did begin, Ms. Conlin's opening statement went seven days.
Fair's fair
If this story amounted only to one lawyer and one case irritating one set of jurors, it might not be worth remembering. But there is a broader lesson in this particular detail of the trial. It's not just that the jury was unhappy. It's that the decision they focused on, the one they thought was worth writing a note about, was the decision to leave the courtroom without explanation. Most jurors don't have the context to imagine what could legitimately pull you away. No matter what impression you've made up to then, it's a rare jury who will conjecture flattering reasons for your absence.
As the Microsoft jury explained, jurors don't get vacation. They have to sit in hard chairs for long hours. They have to stay awake. They have to pay attention. They think it's fair that everybody else in the courtroom should have to do those things too. If for some reason we can't, we have to be sure they know why.
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To learn more about the Microsoft trial, a good starting place is Iowa lawyer Rush Nigut's Rush on Business blog. He calls the case "practically a class on juror persuasion," and his series of balanced posts on it is collected here.
