Better Call Saul!! My Time on Jury Duty

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  1. Avatar James K
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    says:

    I’ve been called for Jury Service twice, serving on a jury each time. Our jury empanelment goes a lot faster since we lawyers don’t get to question potential jurors in our system – you get a few challenges without cause and you have as much time to use one as it takes the juror to walk from the back of the court to the jury booth.Report

  2. Avatar Alan Scott
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    says:

    I’m curious. What answers or circumstances could cause a juror to be struck for cause rather than as a preemptory challenge?Report

    • Avatar James Hanley in reply to Alan Scott
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      says:

      Bias, for one. I can give a couple examples from my jury service. It was a child molesting case, and when the judge asked if any of us didn’t think we could judge fairly, several hand went up. The first guy the judge asked why he couldn’t be fair said “it’s child molesting, I want him to fry.” He was excused.

      I expected to be peremptorily challenged, because I was friends with the daughter and wife of the prosecution’s key police witness, the guy who’d interviewed the little girls, and although I’d only said a few words in passing to him, I’d been at his house for a couple of parties. But the defense attorney was a screwup (by his clothing and demeanor you could tell he wasn’t very successful), and he used up all his peremptory challenges before they got to me, and I saw the “oh crap” look on his face when they came to me. He asked to exclude me for cause, the judge asked how well I knew the police witness and whether I thought I could evaluate his testimony objectively. I said I thought I could, and he kept me. But obviously he could have booted me.

      Also, the defendant was Hispanic. If a juror said something hinting at ethnic bias, that could be grounds for exclusion for cause.

      Another case I was almost in (they settled) one of the questions was whether we’d had a encounter with police. I might have been excluded if it had gone forward.

      And I have a friend who’s at least twice been excluded for cause for saying he believes in jury nullifucation. Prosecutors don’t seem to like that much.Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        E.g., Saul says,
        The prosecution asked if I could find someone guilty despite by public policy protest against DUI checkpoints and I said I could.

        That’s a perfect moment to play jury nullification and say, “DUI checkpoints violate the 4th Amendment so I would not convict anyone caught in one.”

        At least that’s what I might have done.Report

      • Avatar Dan Miller in reply to James Hanley
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        says:

        I’m not 100% clear on the concept, but if he really believed in jury nullification, wouldn’t he not say that until he was on a jury? Or would that be perjury?Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        Dan,

        That’s a good point. In my friend’s case, he truly believed in jury nullification, but he believed even more strongly in getting out of jury duty.Report

      • Avatar Saul Degraw in reply to James Hanley
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        says:

        @james-hanley

        I am honestly not sure how I feel about jury nullification. On the one hand, it is an implicit right of the jury and can be used to fight against prosecutorial overreach. On the other hand, I just can’t shake that I associate it with juries using it to get people off the hook when they attacked and/or murdered civil rights activists during the 1960s. My image of jury nullification is more of a Klansmen getting off than a guy at a DUI checkpoint.Report

      • Avatar El Muneco in reply to James Hanley
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        says:

        @Saul Degraw
        That’s what finally drove me from being a libertarian to being a BHL or a liberal who follows more of the “classical liberal” tropes than most.
        That is, the idea that a lot of the ideas that sound cool in isolation are actually used, in practice, to enforce the white male Christian structure of privilege. Note that I’m not invoking the meme – literally “privilege” means “private law”, which is what we basically have in this society.
        And libertarian ideals have been co-opted to serve it.
        I still believe in the ideals, but unless society changes, I don’t believe in the application. Anymore.Report

      • Avatar Gabriel Conroy in reply to James Hanley
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        says:

        @saul-degraw

        I’m similarly conflicted about jury nullification.Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        @saul-degraw

        It’s a tool, no? The value of tools is all in how they’re used. But despite misuses, I tend to think back to the development of the jury system, and how jury nullification played a fundamental role in embedding the concept that the citizens were indeed a check on the power of the state.Report

    • Avatar Burt Likko in reply to Alan Scott
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      says:

      Bias, as the good professor indicates. In my experience, judges cross-examine venieremen relentlessly until they disavow a claimed bias, so this is usually pretty rare.

      Also personal knowledge of a party, witness, or attorney; having been an eyewitness to an event at issue in the case. You can’t be reasonably expected to set aside your own experiences and friendships. I had a juror stuck for cause once because he was my law clerk’s father and the judge thought that was too close a relationship to avoid bias. (However, when I practiced in Tennessee, I never once had a jury pool that didn’t include someone who knew at least one of the lawyers socially, either through church or past business dealings, so the degree of personal affinity there for a cause challenge would have been much higher than what I deal with in California.)

      A juror in my very first jury trial fell asleep during voir dire and began to snore; he was stricken for cause and seemed disappointed about it.Report

      • Avatar Saul Degraw in reply to Burt Likko
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        says:

        @burt-likko

        The relentless cross-examination seem about right. Since this is San Francisco, we had many immigrants and some of them said their English was not very good. The judge seemed keen on trying to keep some of them as well but a few were let go. The judge was very strong on cross-examining people said they knew victims of drunk driving.

        There was one guy who stayed on in a way that shocked me. He was at least empaneled when I left. He was a more seasoned lawyer who said he did DUI defense in the early part of his career. He also mentioned needing to be in court for a client in a different county on Friday (and getting sanctioned if he was empaneled) and having expert depositions to do next week in another county that was not San Francisco. I was kind of shocked that the judge did not excuse him nor did the lawyers.

        Can you think of any reason?Report

      • Avatar Burt Likko in reply to Burt Likko
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        says:

        The judge, I understand. The lawyers, less so. “Grudgingly willing to serve” I can deal with. But I don’t want any juror on my panel who will actively resent having to serve: too much of a chance that juror will hold it against me that I didn’t thank and excuse her and take out her frustrations on the verdict form.Report

      • Avatar Saul Degraw in reply to Burt Likko
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        says:

        @burt-likko

        Why can you understand the judge?Report

      • Avatar Burt Likko in reply to Burt Likko
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        says:

        Because of the judge’s criteria for juror selection, what the judge is trying to do with molding the makeup of the panel. My theories of which I’ll share later today after some of the others have had a chance to chime in.Report

      • Avatar James Hanley in reply to Burt Likko
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        says:

        judges cross-examine venieremen relentlessly until they disavow a claimed bias, so this is usually pretty rare.

        That seems counterproductive to me. Badgering someone to disavow their bias in no way indicates they’ll really set it aside. While I can imagine some few will be brought to a more enlightened state, it seems that the harder you have to press someone to disavow bias, the more likely it is to be deep-seated, its effects–even if only subconscious–harder to eradicate.

        Plus, I learned a new word today. It sounds like a descriptor of a rat with an STD, but thanks, anyway, counselor.Report

      • Avatar Saul Degraw in reply to Burt Likko
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        says:

        @james-hanley

        I think the problem is that everyone has biases and experiences. If people were easily dismissed, there would be no juries.Report

      • Avatar James Hanley in reply to Burt Likko
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        says:

        Saul,

        Sure, if it’s minor. But if in my case I’d said “everyone knows wetbacks like little girls,” would it really be a good idea for the judge to get me to back off that?

        Or to put it more pertinently, if you were the accused’s counsel, would you be satisfied if after ten minutes of back and forth with the judge I recanted my original statement?Report

      • Avatar Jim Heffman in reply to Burt Likko
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        says:

        “Badgering someone to disavow their bias in no way indicates they’ll really set it aside. ”

        The idea is to establish whether it’s an actual deeply-felt bias or just some bullshit you made up to get out of jury duty.Report

      • Avatar James Hanley in reply to Burt Likko
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        says:

        Sure, and getting someone to say they guess they’re not really biased is a great way to determine that.

        And of course judges get special training to be able to tell the difference.Report

      • Avatar Jim Heffman in reply to Burt Likko
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        says:

        “Sure, and getting someone to say they guess they’re not really biased is a great way to determine that.”

        Considering that you swear to tell the truth during juror selection and you can be prosecuted for perjury if it turns out you lied? And that they don’t ask “are you telling the truth?” but rather “do you feel that can you still deliver a fair verdict?” Yeah, I’d say it *is* a great way to handle it.

        And in my experience, prospective jurors who stick to their “I’m uncontrollably biased” story will be dismissed for cause.Report

  3. Avatar Damon
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    says:

    I suppose answering the prosecution’s questions with “I don’t believe the state has any right to tell me what I can and cannot put in my body, nor put me in jail for having x amount of a substance in my body and I will never convict anyone of a DUI, unless there was an accident involving others” would have gotten you off quicker 🙂Report

  4. Avatar Kim
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    says:

    I’ve always been called for civil.
    I sat on a two week case where the defendant argued about a $2,000 check, for nearly the entire time (the entire case was on $100,000 or so of bilked money).Report

  5. Avatar Burt Likko
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    says:

    Saul, you’ve done jury trials yourself, correct? (If not, take a field trip down I-5 to my neck of the woods for a week, and second-chair one with me. It’ll be a great experience.)

    What’s your take on what the lawyers and the judge were really looking for in jurors? I’m soliciting adjectives and personal characteristics, things like “critical thinker,” “attentive,” “young,” etc. You’re mainly a plaintiff’s lawyer; what traits do you think are ideal in a juror for the cases you handle, and how might you use voir dire to get them?

    I’m curious what other former venieremen and venierewomen in our commenting community think about this, too.

    I’ve my own theories which I’ll share, but before I bias the pool with my own experiences and thoughts, I want to see what others think.Report

    • Avatar Saul Degraw in reply to Burt Likko
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      says:

      @burt-likko

      Not a full trial. I’ve sat in on Cass Management Conferences and reported back to my boss about what happened. Mass Tort world is a bit different because of the number of law firms involved (plaintiffs firms have their own clients but take on discovery as a divide and conquer) and it is usually (but not always) federal court. The cases almost always settle. There might be a handful of “bellweather” cases but those are usually more for determining a settlement amount/structure.

      The firm I am currently working for does Meso trials but I am not involved on the meso side.

      Plaintiff cases tend to go to trial only because of a massive communications breakdown during settlement in my limited experience.

      I think the defense lawyer was looking for people who really believed in the presumption of innocence (he asked many jurors what they would think if they saw their moms arrested without any other information), stubborn people (hence the Henry Fonda question), and doubters (people who believe a machine can malfunction without indicating as such).

      I had a hard time telling what the prosecutor wanted except maybe people who trust technology to work and who could rely on circumstantial evidence. He really did not want people to give the police special weight but he also did not want anyone to have a negative opinion on DUI checkpoints.Report

      • Avatar Burt Likko in reply to Saul Degraw
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        says:

        I thought Meso claims were mainly workers’ comp, where there are no juries but the benefits or fee awards are good enough to justify the TV commercials. I was wrong, I guess.Report

      • Avatar Saul Degraw in reply to Saul Degraw
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        says:

        Some of it but there can be very big money in meso. There is also a new wave of trials for second hand exposure. My bosses won a huge verdict for a woman who contacted meso because she washed her husbands asbestos infected clothing. He was a factory or steelworker of some sort.Report

  6. Avatar veronica d
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    says:

    I was once empaneled on a civil trial relating to an alleged rape. It was very difficult and I hope to never do it again.Report

  7. Avatar Plinko
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    says:

    Interesting to hear the perspective of a lawyer going through jury selection from the other side, especially discussing the checkpoints.

    I served on a jury last week for a murder trial and spent a lot of time wondering how the lawyers and judges think about things – especially during vior dire.

    When asked some questions on our feelings about the police and justifiable killings, I thought I was going to get struck for certain because I hold pretty strong views – but it turned out to be a self-defense case and I guess the way I discussed it didn’t bother either side all that much as it related to the case at hand. . .

    I live in a very small town/county and nearly everyone in the jury knew someone involved in the case. There was a woman in the pool who was related to both the defendant and the victim even though they weren’t related (she was struck by the ADA).Report

  8. Avatar ScarletNumbers
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    says:

    Many people said that they understood this in theory but felt that you shouldn’t drive at all if you had anything to drink.

    This is both sad and scary at the same time.Report

    • Avatar Kim in reply to ScarletNumbers
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      says:

      Not at all. I’m a lightweight, and a not – so – good driver. I really, really shouldn’t be driving with alcohol in my system.

      Many people are affected by alcohol (or other medical substances) differently than normal folks (law of averages, say 5% are in serious danger after half a glass of wine).

      Worse, a good set of people have poor motor skills or horrid motor reflexes. What do you think alcohol does to an already compromised driver?Report

      • Avatar ScarletNumbers in reply to Kim
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        says:

        Well you aren’t the world.Report

      • Avatar Kim in reply to Kim
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        says:

        Scarlet,
        yes, and I understand that. However, I have a fairly high threshold of “are you trying to not kill people” when operating a multiton vehicle. I do not listen to songs in English in the car (would take too much of the driver’s attention).Report

      • Avatar ScarletNumbers in reply to Kim
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        says:

        @kim

        Well if you don’t feel comfortable driving after drinking or listening to English-language songs while driving that is your business, but that doesn’t mean that others shouldn’t be able to.Report

      • Avatar Kim in reply to Kim
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        says:

        Scarlet,
        I’m not advocating for changing the law. But i will listen to an officer describing how stupidly someone was driving (and evaluate that critically), far before I will listen to “I had one drink!”Report

  9. Avatar KatherineMW
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    says:

    I didn’t realize there was any significant number of people who opposed drunk-driving checkpoints on policy grounds (although I’d expect a larger proportion on this blog, which leans libertarian, than in the population as a whole). Based on both Canadian and US stats, a large proportion of deaths from car accidents (about 1/3) are caused by drunk driving; checkpoints are effective at reducing it, and it makes sense that they would deter people from driving drunk. If it also brings in revenue, well, so do parking tickets, and driving drunk is a lot more dangerous to people than failing to top up the parking meter.Report

    • Avatar James Hanley in reply to KatherineMW
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      says:

      It’s one of those areas where public safety conflicts with due process. Some of us view them as warrantless and suspicionless searches.. Some states have agreed, so it’s not a fringe theory.Report

      • Avatar KatherineMW in reply to James Hanley
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        says:

        I recognize that view exists, but it sounds more like a constitutional/legal objection than a public policy one. (From a layperson’s perspective, since the 4th amendment protects against “unreasonable search and seizure”, the question is whether drunk-driving checkpoint constitute a “reasonable” search, which is going to be a matter of opinion.)

        But in public policy terms, I don’t think there’s much doubt that they’re effective, and it’s unquestionable that they’re addressing a genuine and serious problem.Report

      • Avatar Will Truman in reply to James Hanley
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        says:

        Effectiveness depends on how it is defined. If defined purely by the benefits, and not the costs, it is effective. Otherwise, it depends on how you weigh each.Report

      • Avatar Saul Degraw in reply to James Hanley
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        says:

        The Constitution and Civil Liberties are public policy. Anyway my concern was more that I think they are a mask for revenue generating over public safety

        http://www.slate.com/blogs/moneybox/2014/08/18/ferguson_police_department_the_economic_incentives_that_make_cops_harass.htmlReport

      • Avatar Mike Schilling in reply to James Hanley
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        says:

        Currently, there are eleven states which prohibit this practice and have made it illegal for the police to conduct sobriety checkpoints.

        You know what else eleven states did?Report

      • Avatar KatherineMW in reply to James Hanley
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        says:

        Saul – That article sounded like it was about traffic tickets (handed out disproportionately to black people) in Ferguson; I didn’t see any mention of drunk driving.

        And the drunk driving traffic stops I’ve seen are typically in the evening and either stop all cars or stop randomly selected ones; I wouldn’t expect racial bias in who was stopped simply because cops wouldn’t be able to easily tell the race of the person until they’d already been pulled over.Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        I’m sure it could be effective, if they’re set up in the right places. But to be more than spottily effective, they need to be done regularly, and then the places they’re done will become known, and people will know to avoid them. They’ll become a sort of Maginot line–impregnable, so folks will just do an end-run, which means they won’t be very effective.

        To avoid that, they’re likely to be done only occasionally, and while perhaps effective when done, they’ll be wholly ineffective all those times they’re not done.

        So when we move past the static single-point-in-time view and look at checkpoints dynamically, they seem destined to not be consistently effective.Report

      • Avatar Gabriel Conroy in reply to James Hanley
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        says:

        @james-hanley

        Couldn’t they in theory do them regularly, but at random locations?Report

      • Avatar James Hanley in reply to James Hanley
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        says:

        Gabriel,

        Sure. Then it depends on how likely it is to be in your location. Making it likely enough might be prohibitively costly, but maybe not.Report

  10. Avatar James Hanley
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    says:

    By the way, Saul, I like the title.

    One of the weirdest things about moving around the US is seeing the exact same lawyer ads, but for different lawyers. Some ad firm has a great little niche. Similarly, A guy I went to high school with has a niche, from which he actually makes decent money, recording answering service messages–all around the country–for, and only for, veteranarians.Report

    • Avatar Saul Degraw in reply to James Hanley
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      says:

      They probably go to the same production companies!

      There are not many ways to advertise personal injury or drug cases.Report

      • Avatar James Hanley in reply to Saul Degraw
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        says:

        Yes. I mean it’s precisely the same commercial, not similar, but the same script with the same actors wearing the same clothes standing in the same office/set in the same poses, even the same delivery and intonation, just saying a different law firm’s name. I’ve seen it in at least three different markets.Report

      • Avatar Plinko in reply to Saul Degraw
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        says:

        I’ve seen similar things in a number of advertisements on TV and radio (print as well but I think that’s pretty well expected).

        I saw a segment on this segment of the ad industry on TV a long while back – basically there are advertising content firms that create generic ads that local firms/offices can purchase and have voice over work added or some info splashed on it to customize it for them – which is a lot cheaper than paying to produce an entire commercial from scratch.

        Once you start being aware of them, you see it everywhere – even on ads you haven’t seen repeated in different markets – the signals are right there when you see voice overs barely related to the visuals, tack on splash screens or scroll feeds across the bottom. You start to notice that an awful lot of ads for local businesses are made this way.Report

      • Avatar Saul Degraw in reply to Saul Degraw
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        says:

        I know there are a few companies that specialize in making advertisements for plaintiff’s lawyers because we do not exactly have the budgets or needs to go to Saatchi and Saatchi.

        My guess is that the lawyer’s know this and just don’t care. This is going to be in states where lawyers don’t need to appear in their own ads. Many state bars do require lawyers to appear in their own advertisements. There are all sorts of interesting rules about what a lawyer can name their firm and why and how they can advertise and why. A friend of mine is going solo and was looking for firm names. He rejected my idea because it implied having more than one lawyer at the place and this is a big no in California.

        A while ago Planet Money did a podcast on lawyer ads. One lawyer said he would never respond to his own ads but he was not his own target audience. He was looking to attract blue-collar guys with injury cases. Guys who would like a swaggering and fighting lawyer.Report

      • Avatar Mike Schilling in reply to Saul Degraw
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        says:

        just saying a different law firm’s name.

        Re-filmed, or dubbed in?Report

      • Avatar Kolohe in reply to Saul Degraw
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        says:

        William Shatner seems to be saying the name(s) himself on the version he’s in.Report

      • Avatar James Hanley in reply to Saul Degraw
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        says:

        Re-filmed, or dubbed in?

        You do me too much credit by assuming I maybe could tell.Report

      • Avatar Mike Schilling in reply to Saul Degraw
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        says:

        So long as it’s not “dubbed in so obviously it’s funny”, doesn’t really matter.Report

      • Avatar Burt Likko in reply to Saul Degraw
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        says:

        Yeah, it’s pretty much all the same commercial:
        Lowell “The Hammer” Stanley
        Jim “The Hammer” Shapiro (my personal favorite).
        Jim “The Texas Hammer” Adler
        Makes me proud to hold a juris doctorate, I tell you what.Report

      • Avatar Saul Degraw in reply to Saul Degraw
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        says:

        @burt-likko

        I think one of those guys was featured on the Planet Money story.Report

  11. Avatar Burt Likko
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    says:

    I teased it before, so here’s my theory. A judge has two principal priorities that need to be satisfied with every trial.

    First and more important, avoid being overturned on appeal. That means you create a record, an elaborate and thorough record, that each and every juror empanelled was fair and unbiased.

    Second and more immediately pressing, close the file as quickly as possible. The best way to get the case closed fast is for the parties to settle. Uncertainty about what jurors will do creates risk on both sides, and risk induces parties to settle. Adopting an “all mirror-foggers serve” attitude enhances the randomness of jury selection and thus the risk to all sides of an adverse verdict. This is as true in a criminal as a civil trial.

    Some you may notice how things like “actually giving the parties a full and fair chance to air out their differences in a judicial forum” and “realizing full and meaningful justice” and “fulfilling the mandates of the Constitution and the legislature” did not make the list of judicial priorities.Report

    • Avatar wardsmith in reply to Burt Likko
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      says:

      What my attorney told me years ago about jury trials, “Would you trust an intelligent decision to a group of people too stupid to get out of jury duty?”Report

      • Avatar Troublesome Frog in reply to wardsmith
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        says:

        There are other reasons people end up on juries. “Nothing better to do” and “gets off on sitting in judgment of others” are two that come to mind.

        That’s exactly why I don’t try to duck jury duty. A world where only morons and busybodies sit on juries is not good for anybody, so we should all try to do our part to keep it from happening.Report

      • Avatar James Hanley in reply to wardsmith
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        says:

        I served on a jury. I think the evidence shows I know how I could get out of it.Report

      • Avatar Saul Degraw in reply to wardsmith
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        says:

        @james-hanley

        Maybe not clearly and convincingly though.Report

      • Avatar ScarletNumbers in reply to wardsmith
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        says:

        @troublesome-frog

        I have never been called for jury duty. I would love to serve, for the following reasons:

        1) I get paid for it.
        2) I think I would be good at it.
        3) I enjoy judging others as a hobby, so getting to do it under the imprimatur of government would be even better.Report

    • Avatar LWA in reply to Burt Likko
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      says:

      So, in light of recent discussions of race and poverty and class and how overrepresented minorities and the poor are in prisons, could the fact that their lives were determined by juries too stupid to get out of service, judges who wanted to get home in time to see the Kardashians and public defenders juggling 90 cases have anything to do with this outcome?Report

    • Avatar James Hanley in reply to Burt Likko
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      says:

      For a second I thought I was re-reading my education post.Report

    • Avatar Saul Degraw in reply to Burt Likko
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      says:

      @burt-likko

      Not being overturned on appeal implies wanting a guilty verdict. Or it would just create a really strong incentive for a not guilty verdict.

      The reason I was shocked by not letting the lawyer who needed to be in another court in another county go was more about respect to colleagues on the bench. I get that every court can be its own fiefdom but the guy would get sanctioned and said he would get sanctioned. Maybe he was exaggerating but he also said he would stay up to 3 AM to get done what needs to get done.Report

    • Avatar scott the mediocre in reply to Burt Likko
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      says:

      Hmm, in the case of a criminal trial, a settlement means a plea bargain, right? (if not, what else would the settlement the judge is trying to induce via randomizing the jurors be? Something involving a lesser included offense that is not strictly speaking a plea bargain?)

      Is acceptance of a plea bargain after voir dire sufficiently frequent an occurrence to enter into the judge’s calculus? Straight question, no snark intended. I could see the prosecutor’s office making a more beguiling plea bargain offer after seeing that their jury has some loose canons [sic]; does the especially unpredictable jury also increase the pressure on the defendant/PD? I don’t see it – because of the asymmetry caused by the requirement of unanimity, it seems like greater randomness in the jury favors the defense.
      Report

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