Deliberations

Best Of Deliberations, 2008

Against the real news of the year -- an African-American president in our lifetimes on the one hand, and most of us significantly poorer on the other -- Deliberations' 2008 accomplishments are small.  But it was a good year here. 

Deliberations was named to the ABA Journal's Blawg 100 list again, and for days I worked their phrase "smart, captivating blog" into every conversation I could.  I had a second article in TRIAL magazine, trying to bust some myths about mock trials and encourage a simple, useful approach to them.  I was on the radio again, and look forward to my next stint in January.  I was honored to be elected to the American Society of Trial Consultants' board of directors, for a term starting next year.  (Is this starting to sound like a family Christmas letter?)  And there was the unforgettable chance to take part in a symposium in Japan on that country's new jury system -- which takes effect in 2009.  Good luck to those who have worked so hard to give citizens a voice in Japanese criminal trials.

It's fun to see which posts had the most readers.  In each case, it wasn't so much that the post was so great, but that some great blogs were kind enough to spread the word.  The top four were:

--"Your Honor, I Move To Strike Your Mother For Cause", picked up by both Above The Law and Gideon, and thus responsible for the highest one-day traffic I'll probably ever get;

--The Secret Message In Every Bumper Sticker, which did well thanks largely to Eric Turkewitz's link;

--Lawyers: So Certain, So Wrong, picked up by Eric again and rang true with other blog friends Simple Justice, What About Clients?, and Blawgletter; and

--Lawyer Jokes In The Jury Room -- Who can resist jurors making lawyer jokes?  Walter Olson linked to it, which always means new readers.

My own favorite was Ready For Anything, an April post about a transgender juror who wondered how the judge and lawyers would react when they realized the man on their list was the woman in the jury box.  It gave me a chance to stress some of the things I think are most important in voir dire, and perhaps in preparing for a new year as well:  flexibility, an open mind, attention, compassion, kindness.

Wishing you generous portions of all those qualities in 2009. 

(Photo by Windell H. Oskay, www.evilmadscientist.com,
at http://www.flickr.com/photos/oskay/339996940/; license details there.)

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Necessary note:  Mark Bennett's discussion of the transgender juror post is better than my post itself.  It's well worth rereading, at least a few times a year.

Test Your Voir Dire Knowledge -- The Way Judges Do

The Judicial Council of California has a fascinating interactive web site to teach judges the law of voir dire.

This was featured in the National Center for State Courts' Jur-E-Bulletin several weeks ago, but in case you haven't yet subscribed to Jur-E-Bulletin or missed that issue, it's worth a plug here.   The site is part multiple-choice test, part geeky video game.  You play a judge, conducting a jury selection in a criminal case.  As in a real voir dire, all kinds of questions come up, and since you're the judge, you have to answer them.  Early on, the questions are procedural, like this one on "mini-openings":

Q2. The lawyers ask if they can give mini-opening statements to the entire panel before voir dire begins. How do you rule?

A. Granted. Mini-opening statements are mandatory if requested.

 B. Denied. Mini-opening statements are prohibited.

 C. Denied. Mini-opening statements are a waste of time.

 D. Granted. Mini-opening statements aid the voir dire process.

If you click "D," the program praises you:

We agree.

Though not mandatory, mini-opening statements help jurors understand the goal of voir dire and why questions are being asked. When jurors understand the process, they tend to be more cooperative, give more focused answers, and are less likely to try to duck service. The use of mini-opening statements is supported by Cal Rules of Ct 2.1034. Attorneys are to give these statements, limited to just a few minutes, to jurors at the beginning of the selection process. Advance notice of mini-opening statements, as well as which issues will be off-limits in those statements, should be addressed at the pre-voir dire conference.

"I can be fair"

Then come the hardship questions.  What about the juror who is breastfeeding?  A nurse with patient responsibilities?  Under very stressful circumstances at home?   There is a picture of each prospective juror, so you have to look them in the eye if you're going to make them stay.  You rule, and the program tells you whether you ruled right.

Next come challenges for cause:

Q13. Defense challenges Juror 10 for cause: “I was the victim of an attack with a deadly weapon—a knife—nine years ago. But I feel I can be fair in this trial.”

How do you rule?

A. Granted.

 B. Denied.

The defendant on trial is charged with assault with a deadly weapon, and that weapon is alleged to be a knife, so you may not like the Judicial Council's answer -- which is all the more reason to be ready for it:

B. We agree.

You should grant for actual bias only if there exists “a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of any party.” [CCP §225(b)(1)(C).]

Then come peremptory strikes, with new juror pictures stepping in for the prospective jurors who are excused.  With peremptory strikes come Batson questions, a lot of them, and accompanying procedural questions you might not have thought of:

Q28. The prosecution wants the peremptory back that it lost due to the Wheeler/Batson objection.

How do you rule? Should you give back that peremptory?

A. Yes.

 B. No.

 C. Maybe.

I'm not actually sure that civilians like us are supposed to be on this site; as I poke around to other pages, I've gotten a few "you're not authorized" messages.  But for all trial lawyers, especially newer ones, it's a great review of the issues that can come up in voir dire, and a great preview of how your judge may be predisposed to respond.

It's also an impressive effort on the California Judicial Council's part both to use new technology and to offer training to judges.  The site credits Hon. Alex Ricciardulli, Steve Boga, Tim Hallahan, and graphic designer/programmer Mandy Covey for the work.  The Judicial Council's Benchbook for jury trials and jury management is informative as well.

Related posts here: 

• Principle v. Practice: A Judge's Challenge To Improve Voir Dire

• State Jury Trials: Your Questions Answered

(Photo by Paul Downey at http://www.flickr.com/photos/psd/90418645/; license details there.)

 

Jurors Take A Holiday

Are you picking a jury on January 5?  Be glad you won't have me on the panel.

If you're still picking jurors by demographic profile alone, you might think you want someone like me.  I'm fairly educated, a lawyer, a parent, a blogger, pretty senior at my office and thus used to leading project groups -- that's not the right juror for every case, but I might be a good candidate for yours.

Bread from a cold oven!

Except that during the holidays, I look nothing like that profile.  Over the last few weeks, the burning issues in my life have been questions like these:

--Will I ever find a recipe for pourable royal icing that's right for the fruitcake recipe I love?  The cookbook author doesn't give one because she says you can find it in "any general cookbook."  That might have been true when she wrote it, but times have changed.  (Answer:  I think I've got this right now.  And the fruitcake really is good, I swear.)

--Can you really bake bread in a clay pot starting from a cold oven, so the bread bakes while the oven preheats?  No more trying to fill the hot oven up with steam when you put the loaf in?  (Answer:  you really can.  I am unduly excited about this.)

--Will the gift book I made on Blurb.com turn out all right?  (Answer:  It was pretty spectacular.  Huge thumbs up for Blurb.com.)

--Will my relatives get in all right?  And will they get out all right?  (Answer:  They did, through snow and fog and storm.)

--Where the heck did I find the recipe I used that one year when I got the sweet potatoes right?  (Answer:  My old copy of The Joy of Cooking, but I didn't figure this out until I had messed them up yet again.)

--Will I really finish, for the first time, the Concept 2 indoor rowing "holiday challenge," joining three of my family members to row 200,000 indoor meters (at my slow pace that's close to 45 minutes a day) between Thanksgiving and Christmas Eve?  (Answer:  I did!)

I kept up on client work, of course, but the rest of my lawyer/blogger life was far away.  If I were in your jury box next week, I'd try to listen to you, but you'd be competing with the bread recipes in my head.

Not just baking

I'm not the only one who's distracted over the holidays, in ways that may not be predictable from a "profile."  This time of year is hard on relationships, for example.  I'm convinced that I see more requests for referrals to divorce lawyers between Christmas and Valentine's Day than in the entire rest of the year.  Jurors who need to "do something" about their elderly parents' living situation or their college student's mental health issues are thinking harder about it right now.  What was just financial anxiety the rest of the year may be closer to financial panic this week -- in any year, and especially this year.

If you're picking a jury in the next few weeks, try to remember that -- now even more than usual -- you are not the most important thing in their lives.  Find non-obnoxious ways to keep their attention and to make sure your key points get through.  Ask them how their holidays were, and listen to what they say. 

And speaking of holidays, I hope yours have been great.

(Photo by Chris Metcalf at http://www.flickr.com/photos/laffy4k/310048508/; license details there.)

 

Does Solo Practice University Have A Fight Song?

 

When Susan Cartier Liebel first told me about Solo Practice University^TM --a " revolutionary new web-based educational community that picks up where your legal education left off" -- I admit I wondered whether anybody could turn an idea that grand into reality.  But it's real now, and over the last few weeks, Susan has been announcing the faculty, one person at a time.  Today, she's announcing me; I'll be teaching a voir dire course.

I'm not just doing this because the idea is so intriguing, or because Susan has become a friend I respect in the blogosphere, or because she may be the single most persuasive person I've ever talked to -- although all those things are true.  More than those factors, Solo Practice University interests me because it offers a way to be concretely helpful that few other formats offer. 

Lawyers struggle with jury selection.  In their education and in their daily lives at work, it often comes as an afterthought.  They watch other lawyers do it poorly, and aren't sure what better looks like.  Lawyers make mistakes; sometimes they kick themselves later, and sometimes they never know they could have done it differently.

When I write about these issues, the most difficult question I get is also one of the most common:  How do we fix it?  What do we do?  I work with lawyers individually on these questions, of course.  But for a larger audience, it's challenging to shape workable answers -- challenging, or plain dumb.  I'm hopeful that a class will be a chance to work together with a group to find concretely helpful solutions to the challenges of jury selection.

I'm looking forward to it.  Susan, thanks for the opportunity.

Six Mistakes That Can Mess Up Voir Dire

Most of the legal talk about the Lori Drew case has been about the charges, not the jury.  But the jury story that did come out this week reinforces a whole series of lessons about voir dire.

Didn't read the terms of service?  "Absolutely you should be held liable"

Ms. Drew is the "MySpace mom" who harassed 13-year-old Megan Meier with a fake MySpace page.  She may not have meant for Megan to commit suicide, but that's what happened.  Ms. Drew was convicted last week of misdemeanor charges, but acquitted of felonies, and many question whether the charges against her will survive on appeal.  The prosecution's theory was that Ms. Drew committed a crime when she violated MySpace's "terms of service" by setting up a fake profile.  As Emily Bazelon wrote in Slate today, those terms of service, like most of what we all click yes to on the Internet, are "a long series of legalistic paragraphs that just about nobody really reads."

So when jury foreperson Valentina Kunasz told the press this week that she does always read Internet terms of service, and "If you choose to be lazy and not go through that entire agreement or contract of agreement, then absolutely you should be held liable" and maybe go to prison if things turn out badly, it made Scott Greenfield mad at the whole jury system: 

In this case, given its notoriety and attention, the effort to find fair-minded jurors, how did H. Dean Steward end up with the only person in the world who actually reads the terms of service?  Worse still, one who has such a chip on their shoulder that they believe anyone who does not read the TOS is lazy and should go to prison for it?  . . . [I]f jury selection, the process in all its art and science, fulfills its purported purpose, how could this have happened?  Or is it all just voodoo?

Scott and I go back and forth on the whole is-it-voodoo thing, and he has made some strong points on the subject.  But he has this one all wrong.  It wasn't some unpredictable mystery of the jury system that let Valentina Kunasz slip onto the Drew jury panel.  Her presence there was completely preventable.

One of three things happened here.  Ms. Kunasz was asked whether she reads terms of service and she told the truth; she was asked and she lied; or she wasn't asked.  If she told the truth, we don't have an issue, since that means the lawyers knew this fact and kept her anyway.  If she lied, then the problem isn't jury selection.  (I doubt that happened; presumably Wired would have reported it, as they reported much of the Drew voir dire in detail and also the Kunasz interview.)  And if she wasn't asked, well, that's not the jury system's fault.

Six mistakes

I have no information to criticize either side's voir dire in the Drew case, and I wouldn't do it even if I knew more.  This post is about the rest of us, not the Drew lawyers -- because the story brings to mind some of the ways a good lawyer could have failed to ask Ms. Kunasz if she was a terms-of-service reader and regretted it later.  Here are six of them, mistakes lawyers make all the time: 

1.  They don't allow enough time to plan voir dire.  Every Sunday night, this blog gets the same search hit over and over:  "Sample voir dire questions." 

It's clear what's going on.  All over the country, trials are starting on Monday.  The lawyers finally have everything else ready, and they are turning to voir dire.  They'll put together a good list, maybe do a fine job, but if they'd started earlier, they would have done better.

The earlier you start, and the more different times you revisit the project, the better your voir dire questions will be.  Each time you take a break and then return to your draft questions, you'll be amazed at the new questions that jump to your mind -- suddenly obvious, but somehow missed before.

2.  They don't plan voir dire in a systematic way.  If you try to plan voir dire by listing every question that comes to mind -- and many lawyers do it that way -- you'll end up with a lot of questions, and you'll miss a lot more.  You need a system that will prompt you to think of what doesn't come to mind. 

I've suggested some starting points for a systematic approach, here and here.  However you shape your system, be sure it includes the elements of the crime (or the civil cause of action) and the defenses asserted.  As to each element, whatever else you ask, you need to ask whether anybody has done that, or had it done to them.  Somehow this is easier to remember when the case is about something most people haven't done, like shooting someone in self-defense.  But if the case is about reading the terms of service, then that's what you ask about.

3.  They don't ask about experiences.  Lawyers too often jump to the punch line, asking jurors how they feel about the issues in the case.  Depending on how good you are at it, this technique falls somewhere between incomplete and useless, mostly because jurors often aren't very good at understanding or describing their attitudes.  Ask anyway, but ask also about what has happened to them, and about what they've done.  Very often you can understand them better from there. 

4.  They don't ask for follow-up questions in judge-conducted voir dire.  Lori Drew's trial was in federal court, and the stories I've seen refer only to questioning by Judge George Wu, not by the lawyers.  Again, I don't know what happened; maybe the lawyers asked for follow-up questions and didn't get them, or maybe they got them, or maybe they didn't ask.  But in general, it's remarkable how many lawyers write good voir dire questions for judges to ask in federal court, but neglect to ask for follow-up questions. 

5.  They get tangled up in paper questionnaires.  The Drew jurors answered what sounds like an extensive written questionnaire.  (I've looked for a copy and can't find it, even on PACER; if you have it and would share, please let me know.)  Questionnaires are great, of course -- an effective way to ask questions that would be difficult to ask in person, and to take a little time to think about the answers.  But when you have questionnaires, you need to be ready to handle the information they contain.  Too often lawyers find themselves standing in front of the jury box leafing through an armload of paper.  Sometimes that's unavoidable, but avoid it if you can.

6.  They don't question young working-class women.  Valentina Kunasz is a 25-year-old former hairdresser.  If there's anyone in the world who's likely to be under-questioned in voir dire, that's the profile.  Lawyers know they can't take all day on voir dire, so they often spend more time on jurors they think are likely to be leaders in the group:  educated jurors, jurors who supervise others at work, jurors with more life experiences, and yes, male jurors.  If a 25-year-old unemployed (I assume that's what "former" means) female hairdresser isn't volunteering, in many trials she wouldn't get to say much at all.

It's important to look for leaders in voir dire, and to try to understand them as fully as you can once you find them.  But it's also important to suspend your preconceptions while you're looking, and to make sure everybody speaks.  As Judge Gregory Mize has explained, the silent ones can surprise you.

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Related posts here:

• How To Brainstorm Voir Dire Questions: A Practice Exercise

• Back To Basics: Nine Things To Look For In Voir Dire

• First Thing We Do, Let's Ask About Experiences And Behaviors

Update:  Gideon, who has been following the legal issues in the Drew case, posts on the juror story here. 

Cartoon by Roberto Zingales, [email protected] 2008)

Deliberations In The ABA Journal Blawg 100

 

Back when there were merely scores of other law blogs, a jury blogger could turn her computer off over Thanksgiving weekend, confident that the best stories would still need coverage on Monday.

Now there are hundreds of law blogs at least, and that means two things.  First, great jury stories get covered fast and well by other people.  The new Tenth Circuit case on jury bias?  It's at Juries.  The Georgia juror who tried a little do-it-yourself CSI?  Picked up in the American Society of Trial Consultants' new news feed.  (There's no permalink to individual stories yet; scroll down to November 25.)  The truly stunning story of the convicted defendant's mom who went undercover with one juror after another until she found one who told her he lied to get on  the jury?  Terrific coverage by Gideon at A Public Defender, a nuanced take from Scott Greenfield at Simple Justice, and a prompt post and follow-up at Juries again.

Second, it's an even greater honor to make the ABA Journal's Blawg 100 list in 2008 than it was in 2007.  As was true last year, you can't list 100 without leaving many wonderful blogs off the list, so the Blawg 100 is best thought of as one set of recommendations, not as a "best" selection.  Still, it's a set of recommendations that described Deliberations as "a smart, captivating blog," and so I don't mind saying it completely made my day.

As it did last year, the ABA Journal combines the Blawg 100 announcement with a voting period, where visitors can vote for their favorite blogs.  The voting brings readers to the ABA Journal's site, which they deserve; and it helps readers discover new blogs on the list, which those blogs deserve.  So it's worth a minute, and if you happened to vote for Deliberations while you're there, well, I'd be honored.  I'm in the "niche" category, where I'm certain to lose in a landslide, since some of the most respected blogs anywhere on the web are there -- like SCOTUSblog, Patently-O, Walter Olson's Overlawyered, and Drug and Device Law.