A quick wrap-up on the topic of lawyers on juries. We've talked about the problem, that other jurors will defer to them; and we've talked about using experiences and behaviors to try to get a better sense of them in voir dire. If it seems clear that the final panel will include a lawyer -- in Scott Greenfield's lawyer-heavy jury panel, it seemed inevitable -- here are a few closing thoughts that may be helpful.
1. Rehearse the lawyer's role in deliberations. Remember the power of priming. Those who mentally rehearse an activity perform it better and more reliably, a fact used by everyone from athletic coaches to music teachers to doctors treating stroke patients. You can use it too.
In voir dire, when you're talking directly with the lawyer/juror, think about letting her know you've seen instances where lawyers unintentionally dominate, and have a conversation about what she'll say when jurors start asking her about the law, or start straying from the instructions. In closing argument, when you're talking to the whole panel, you can invite the group to imagine how they'll deliberate so that everyone is heard and no one has a special role.
2. Look her up. Compared to most other people, lawyers are easy to learn about on the Internet. They sign appeal briefs, contribute to campaigns, give seminars, join nonprofit boards, give quotes to the newspaper, give radio interviews, get rated by their peers and nowadays by private rating services (but take Avvo with a cup of salt, as Scott Greenfield has explained in many posts including this one), and sometimes write blogs. Even if you have to do it after voir dire is over, try to learn a little about this lawyer you'll be trying to persuade.
3. Argue the instructions. Lawyers don't lead juries because we're naturally compelling. Other jurors wouldn't rely on a lawyer colleague for engineering expertise, or even necessarily to recommend a lunch spot. Instead, lawyer jurors lead because other jurors ask them to explain the law -- the instructions, the verdict form, and in general what jurors are supposed to do. So, to manage as best you can the lawyer juror's impact, give her what she needs to say when the questions come. Shape your argument as best you can so that it flows inevitably from the instructions and the verdict form.
I'm not talking about the burden-of-proof instruction, civil or criminal. There are exceptions to every rule, but in general a lawyer may be the last person you'd want to argue reasonable doubt to, much less preponderance of the evidence. A lawyer's life largely consists of being asked to make the call in unclear circumstances, and a few years of doing that over and over will have wrung the doubt right out of her. I understand that sometimes reasonable doubt is all you have, but the instructions you want to stress if you can are the elements of the claim or the crime, and the elements of the defenses. Ideally, when you're done, the lawyer juror will be able to explain to her colleagues exactly where it says you win.
(Photo by Macguys at http://www.flickr.com/photos/radiomacguys/475575951/; license details there.)
