One of my law partners was called for jury duty awhile back. He returned with a striking story, a sort of Tale Of Two Lawyers. Defense counsel, he reported, sat with his client at counsel table during voir dire. But plaintiff's counsel sat alone; his clients had to watch from the gallery. Even my experienced friend, who could list twenty reasons why a lawyer might or might not want to have the client at his elbow during voir dire, couldn't miss the message: defense counsel liked his client, and plaintiff's counsel didn't.
I was reminded of the story this week when Capital Defense Weekly listed new scholarship related to the death penalty. The list included a Howard Law Journal article with what sounded like an impossible title: "Death Without Due Consideration?: Overcoming Barriers to Mitigation Evidence By 'Warming' Capital Jurors To the Accused," by H. Mitchell Caldwell & Thomas W. Brewer. (I can't find a free stand-alone copy of the article, but the entire issue of the Howard Law Journal, including this article, is in pdf here.)
My client, my friend
How do you "warm" jurors to the defendant in a horrific murder case? Caldwell and Brewer, expanding on Brewer's earlier analysis of data from the Capital Jury Project, suggest one thing above all others: treat your client with warmth and respect.
When they searched the data for reasons why some jurors were receptive to "mitigating" evidence supporting a mere life sentence, Caldwell and Brewer say, "[t]he primary explanatory variable . . . was the jurors’ perceptions of the attorney client relationship." "A significant sampling of capital jurors," they go on, "reveals that jurors are more receptive to mitigation evidence when they view the relationship between the attorney and client as 'warm and friendly.'" But it's easy to appear too close: "Ironically, that same study of capital jurors revealed that they became less receptive [to mitigating evidence] if they perceived that the attorney and client worked too closely together." The Howard article puts this conclusion in context, and suggests several practical ways to help the jury get to know an accused client.
Civil trials too
Civil as well as criminal lawyers need to learn from this, as my colleague's story shows. Of course you should be treating your client with warmth long before the jury ever walks in; that's your client, for heaven's sake. But your public relationship has an extra dimension -- as important or more, this research suggests, than the opening, closing, and cross-examinations you worked so hard on. In every case, from a slip-and-fall to a corporate contract dispute to a death penalty trial, the jury wants to know what treatment your client deserves. They take the answer in part from the one person who is interacting with your client from the first to last moment of the trial. That's you.
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Source note: Prof. Brewer has two related articles, including his 2003 Ph.D. dissertation that first worked with the lawyer/client relationship data, on SSRN here.
(Photo by Michael K. Dorsey at http://flickr.com/photos/thechairman/247088786/; license details there.)
