Friday's post listed some of the juror issues that often come up in trial. You're going along, and you suddenly learn that a juror is anxious or upset; or can't hear or speak English; or has background that's relevant to the case; or recognizes a witness in the middle of the trial. When something like this happens, you face what I've called an Instant Decision Moment. You need to decide within minutes, sometimes within seconds, whether you're going to ask for the juror's dismissal, and if so how loudly.
The problem for many lawyers is that they didn't prepare for this part. They have a neatly organized trial notebook with outlines for an engaging voir dire, a gripping opening statement, simple direct examinations and scorching crosses. But when a juror says "Hey, I know that guy," or "Hey, he's eyeballing me," there's no section in the notebook to turn to.
Simple tips to prepare: pictures and a bench book
We've talked before about some of the in-the-moment factors that can guide your reflexes here. But it's also possible to prepare. Here are two simple tips that will help, both sent by Milwaukee Circuit Court Judge Rick Sankovitz in response to other posts. One focuses on prevention, the other on cure:
- To prevent jurors recognizing witnesses too late, use pictures. "On the issue of jurors who know witnesses but don't realize it until they see the whites of their eyes, I often make this recommendation to lawyers who use display technology at trial -- in voir dire, show the panel pictures of the witnesses who will be called. The display of technology may create a good first impression (all the caveats about technology in the courtroom apply, of course), and it may weed out this problem, which happens more often than people think."
- Do what the judge does: get a bench book. "A pointer I always like to share with lawyers putting together their trial notebook - get the benchbook. Judges regularly turn to it, and it's nice to be able to walk the judge through the analysis that most judges tend to consult when confronted with an Instant Decision Moment."
The bench book tip is elegant, not just for jury issues but for whatever comes up. As the judge is reaching over her shoulder for her own copy, why shouldn't you be reaching for yours?
State bench books are commonly available; Wisconsin's can be purchased here in hard copy and here on CD. For federal court, both the bench book and an extensive Civil Litigation Management Manual are free, yes, free. Download them, and an amazing wealth of other resources, from the Federal Judicial Center. (That link is to their catalog; simple searches will find them from there.) What you'll learn is that both federal documents are silent on when jurors must be dismissed (although the Management Manual is full of other good juror information), so you'll want to be ready with case citations in federal court.
__________________
Notes:
- Judge Sankovitz isn't just a source of good ideas. More important, he's well known here for his work for indigent litigants. His advocacy has inspired many lawyers to take on more pro bono cases. Most recently he chaired the Wisconsin Bar's Access to Justice Committee, whose report describes the urgent and unmet need that remains.
- The weekly edition of Blawg Review is at Blawg's Blog today, with a very comprehensive look at other law blogs you might want to add to your reading list, and a very kind compliment to this one. Thanks.
(Photo by Scott LaPierre at http://www.flickr.com/photos/pierrelaphoto/431468152/; license details there.)
