Category: The Practice of Law
Clear ResultsThe Practice of Law
Jury Duty (Part Three): From Voir Dire to Deliberations to . . .
Originally posted on 03/05/20, content updated on 11/07/23 “Ladies and Gentlemen of the jury, please stand and raise your right hand to be sworn. Do you solemnly swear to be fair and impartial to uphold the Constitution and laws of The Commonwealth of Virginia to the best of your ability?” And with a resounding chorus of “I do’s,” we — the chosen few! – are asked to be seated and prepare for what is to be a several-day journey through dramatic opening statements, myriad facts and witnesses, emphatic legal “Objections!” (sustained and overruled), rousing closing arguments, and methodical instructions from the judge, before heading off to what was to become our own special home-away-from-home for the next several days for our “deliberations” as we were to decide the fate of the accused – alleged to have embezzled an insane amount of money from a former employer’s operating account (apparently not as uncommon as you might think! Note to self – review A/P payment approval process!). I had been called to serve – my first time ever! – called for jury duty in Fairfax County Circuit Court. Unlike many of those I’d joined in the jury assembly room that fateful Monday morning, I was excited and hopeful of being selected to serve on a jury. Seeing and experiencing first-hand a juror’s perspective of what it is I do for a living in the courtroom as a trial attorney from the other side of counsel’s table and behind the rostrum is something very few litigators ever get a chance to experience. (I’ve only met two over my career that have shared the experience.) There are any number of big screen and small screen representations of what goes on behind closed doors but, as I’ve previously noted and explained, it is a relative rarity for a litigator to experience the actual inner workings of the jury room. So this was, indeed, an exciting day! “Voir dire,” the part of the pre-trial process where the judge and the attorneys ask potential jurors a bunch of seemingly random unrelated questions designed to help the attorneys decide who the best jurors will be (or at least who they most definitely don’t want on the jury, if they can help it) was surprisingly and disappointingly uneventful. The only real surprise was that neither side felt compelled to dismiss or “strike” me as a juror (each apparently believing that having a civil litigator on the panel would be somehow beneficial to their cause). If you’ve seen the CBS TV show “Bull” for instance, you know there is a whole science (art?) to this evaluative process. There is a large “cottage industry” of jury consultants out there willing to take desperate people’s money to avoid conviction. This, however, was definitely not one of those cases. Opening statements were matter-of-factual and methodical (classic “tell ‘em what your gonna tell ‘em” lead-in’s). Witnesses were relatively “vanilla” providing, mostly at least, “just the facts, ma’am!” There was a big flourish of an “OBJECTION!” at one point after some seemingly irrelevant but salacious testimony, but a quick “Sustained!” from the judge mooted the need for the Commonwealth’s Attorney (the state’s prosecutor) to respond, and she simply continued as if nothing had even happened. Witness after witness, mundane direct exams followed by somewhat more spirited cross-examinations, frequent breaks and lunches (many more than I generally take in a week!), judicial admonitions not to talk to anybody about the case, all culminating in relatively flamboyant, definitely more emotional, closing arguments including the defense attorney’s impassioned insistence that the Commonwealth had failed to prove its case beyond a reasonable doubt and, somewhat surprisingly actually, of his client’s having done nothing wrong, etc. before the judge turned to us to read carefully crafted instructions and sent us out with reminders of our oaths and duty to our fellow citizens and community. We pick a foreman (or forewoman, in this case), take a single unanimous vote; watch the “guilty” verdict get read in open court, watch further as the defendant – clearly shocked by the result – get cuffed and lead by Sheriff’s Deputies (a couple of Fairfax County’s finest!) through a special side door in the courtroom (leading to the special prisoner elevator and back hallway system in the courthouse most people never get to see; receive an appreciative “thank you” from the trial judge; collect all our belongings, shake hands, exchange pleasantries (and a couple business cards!) with fellow jurors, and unceremoniously head back to our respective lives. At least that’s what I had hoped would be my first juror experience. If you remember back to Jury Duty 2, I left off waiting for the Sheriff’s Deputy to come back to bring my group of jurors to our assigned courtroom with me looking forward in anxious and excited anticipation to my first “voir dire” as a prospective juror. In fact, when the Deputy eventually did return, after we were forced to sit and wait in the jury assembly room for nearly another hour or so, he thanked us for our service and summarily dismissed us. That was it. We were done. There would be nothing further required of us. Thanks for playing; there will be no parting gifts, and you won’t be getting a copy of the “home game” (a la television game shows of the ’80s). The Deputy couldn’t tell us how “our” case had been resolved or even the type of case to which we had been assigned – either because he truly didn’t know or simply knew better than to engage us down that path of inquiry. Regardless, there would be no voir dire, not for me . . . not that day. There would be no empaneling, no opening nor closing, no objecting nor sustaining, no deliberating nor convicting. Jurisdictions handle jury service differently with some having continuing obligations in the event one is dismissed as I was that day — not Fairfax County, however. In Fairfax County one fulfills one’s jury duty service by timely presenting at the courthouse and making oneself available to serve just as equally as those fortunate enough to be selected and empaneled on a jury. If you’ve been fortunate enough to have served on a jury, I thank and envy you for your service. You help the legal system function, and it is better because of you. Drop me a line . . . I’d love to hear your story. For me, I fear, it is like the elusive hole-in-one I may never achieve.
November 7, 2023
The Practice of Law
Jury Duty | Voir Dire: “To tell the truth?” - Part Two
Originally posted on 02/13/20, content updated on 11/02/23 Courtroom assigned! One after another, Sheriff’s Deputies come to call out a list of potential jurors to report to various courtrooms. I sit, comparing myself to the Schoolhouse Rock “Bill,” sitting on Capitol Hill, just waiting for the possibility of getting called, only to be “stuck in committee” for who knows how long. For now, it appears I am headed — along with 29 of my community “peers” — to a courtroom to face “voir dire,” which derives, as the Chief Judge so ably explained during the informative orientation video, from an old French term meaning “to tell the truth” – my French is rusty enough that I decide not to challenge the judge on this one! “Wait right here, and I’ll be back to take you to the courtroom,” the Deputy tells us after assuring we are all present and accounted for. One step closer, and my thoughts return to how unlikely it is that, as a trial lawyer myself, I will survive voir dire to make it to one of the comfy seats in the jury box. Telling the truth won’t be an issue, obviously. The threshold question is whether the lawyers on the case like my answers. In the video, Judge White cautioned that one or more of us might be subject to an attorney’s “strike” and not to take it personally or to take offense if that happens. Yeah, right! How else to interpret being stricken other than: “Juror X, you are exactly the kind of person we don’t want deciding the fate of our client. Buh-bye!” Still, we all have our biases, whether we recognize them or not. As trial attorneys, we are called upon to engineer trial scenarios most favorable for our client, including evaluating and striving for the most potentially favorably pre-disposed jury possible – or, in any event, one that is the least unfavorably pre-disposed! But, this day, I am not the one doing the engineering. This day, my own predispositions are subject to being exposed – or worse . . . presumed! . . . guessed at by those who will be forced to consider, as they must with each potential juror, whether having me, a trial attorney, on their jury panel is a pro or a con for their client’s case. When the attorneys “rest” their case and the jury leaves to deliberate the outcome, will my presence in the room help or hurt their chances of success? Essentially, the attorneys on the case must decide whether my professional experience is more or less likely to be a positive factor for them. Will I be open-minded and able to decide the case based only on the evidence presented? Will I influence others on the jury to consider things that perhaps only I observed during the trial because of my own trial experience (evidentiary shortcomings?) or be called upon to explain what something meant (a legal objection sustained or an instruction from the judge), or perhaps even resolve legal questions ordinarily brought to the judge’s attention? And, ultimately, will it be better or worse for their client if I am in the jury room with the possibility of any or all of the above. Whoa! Pump the brakes, big guy! Reality check. We’re still sitting in the jury assembly room, awaiting the Deputy’s return to take us to the courtroom. I wonder what kind of case we’ll be assigned . . . civil or criminal? Will it be an attorney I know? Here comes the Deputy now . . . . Juror 996642 ready for voir dire!
November 2, 2023
The Practice of Law
Jury Duty – A Litigator’s Dream? Part One
Originally posted on 01/30/20, content updated on 10/31/23 Juror 996642 reporting for duty! There I was, responding to my first ever “SUMMONS FOR JURY DUTY.” I’d heard several stories over the years from legal colleagues and friends summoned, voir dire’d, and a couple who actually served on a jury. Not me. Decades of eligibility, but this was my virgin run! Perhaps I filled out the form differently this time? Had I been previously claiming an exemption? Honestly, I’ve no recollection of past years but have a vague recollection of making a conscious decision not to claim an exemption in hopes of serving. Voila! As members of the Bar, especially those of us who spend a substantial time at the courthouse, we appreciate all too well the substantial amount of effort and resources that are required to provide access to justice. Here in Virginia, and Fairfax County, in particular, we are fortunate to have the resources we do (though we could always do more with more!) and an unyielding commitment to timely resolution of cases. To be sure, there will always be opportunities for improvement in the judicial system, many of which we as members of the legal community are uniquely empowered to pursue. Being willing to answer the call to serve and to accept the responsibility of possibly being asked to help decide the guilt/innocence or civil liability of a “peer” is an opportunity too easy not to partake. Each state handles jury duty obligations differently. In fact, with both a federal and state court claiming jurisdiction over you no matter where you live, eligible jurors are at all times subject to multiple selection systems. In Virginia, the selection process differs from county to county. Fairfax County is the largest jurisdiction in the Commonwealth, with the most potential jurors. As a result, one answering the call to serve can anticipate it’s being at least several years before being summoned to serve again. Here in the “land of the free, because of the brave,” where one’s “day in court” comes as a right and privilege for which so many have sacrificed so much, jury duty is really no sacrifice at all. So . . . client obligations, pending deadlines, other work, and family commitments aside . . . along with maybe 100-150 or so fellow Fairfax County residents answering the call, I am Juror 996642 . . . reporting for duty! After the parade is over and all the fanfare and hoopla die down (not!) . . . my I.D. has been verified, and I have made myself comfortable in the assembly room. Polite smiles; quiet as expectations build; we wait. Next time . . . “voir dire.”
October 31, 2023
The Practice of Law
Jury Duty for Lawyers: Are You In or Out?
Jury service is both a civic duty and a privilege. Yet, attorneys rarely serve on juries. To be clear, there is a difference between reporting for duty and actually serving on a jury. For those attorneys who might consider reporting for duty, some question the value of the experience. In the County of Fairfax, Virginia, where I live and practice law, attorneys, along with judges, “first responders,” and some others are among those afforded an exception to jury duty. Every so many years, the County sends out a questionnaire to confirm eligibility to serve. I recently received mine and faced again the question of whether to exercise my right to choose not to serve, i.e., whether to opt in or opt out of jury service. That’s right, jury duty is optional for lawyers! (Please tell me I’m not the only one seeing the irony?!) [For a glimpse into the result of my previous decision to “opt-in” for jury duty.] I certainly don’t begrudge anything to those attorneys that choose to exercise their legal right to “opt out” of jury duty. After all, why expend all the effort when not being allowed to serve on a jury is practically a foregone conclusion – especially for a litigation attorney such as myself (and many of my colleagues with whom I’ve debated the issue)? I recognize that it is highly likely I will have wasted a great deal of time and effort only to be sent away without having been part of the deliberative process and/or helping decide a winner and loser at trial. Be that as it may, for me, at least, opting in is my only option. Why? As I stated at the outset, jury service is both a civic duty and a privilege. Expectation of a “strike?” For at least one of the lawyers trying a case, allowing an attorney on the jury is likely to be a bad thing since a lawyer-juror may be more likely to recognize weaknesses in the evidence presentation, including evidentiary gaps leaving material questions unanswered, and less likely, perhaps, to be persuaded by legal rhetoric. For these reasons and countless others, I suppose, it is very likely that a lawyer reporting for jury duty will be stricken with one of the “strikes” afforded to each of the parties as part of the jury selection process and, consequently, equally unlikely that the lawyer would actually end up serving on a jury. Our system would fall apart completely if everyone measured and determined their level of input by the relative expected impact on the overall process. Just as a single vote is unlikely to tip the scales of an election either way, the potential significance of one’s individual involvement in the judicial process cannot be overstated. I simply refuse to accept that the measure by which we ought to decide in the first instance whether to participate in the process at all is the extent to which we believe that our individual input is likely to be outcome-determinative. Rather, our willingness to serve, to make ourselves available to serve, as impartial decision-makers willing to share our time for others ought to equate to the level we would hope others might share of themselves should we ever find ourselves in need of a jury of our peers. Impacting the process? Whether one wants to accept responsibility for the consequences of one’s inaction, one’s non-involvement in the jury selection process impacts the end results. If the presence of an attorney is likely to cause one or the other party to exercise one of their limited strikes to remove the attorney from the jury, the absence of that attorney must necessarily mean that a strike remains available to be used on someone else. In other words, the ultimate makeup of the jury is skewed by the absence of an attorney who could have reported for duty, even if only to be struck. By not participating, therefore, an attorney has, unintentionally or otherwise, impacted both the process and the results merely by one’s absence. Jury of one’s peers? One accused of a felony is entitled to have the matter heard and decided by a “jury of one’s peers.” In a jurisdiction such as Fairfax, where lawyers abound, a jury pool with no lawyers would reflect less than accurately the “peer group” from which one’s jury is to be drawn. Consider, for instance, a lawyer-defendant on trial for a murder she didn’t commit. What ought the makeup of a jury pool of her “peers” properly include, if not a lawyer or two? My involvement would not assure an attorney on the jury for this hypothetically wrongly accused lawyer-defendant, but participating to the extent I am able amounts to playing my part and doing at least what is within my power to do. What if . . .? Maybe I get contacted and told to report to the courthouse. Maybe I get assigned to a jury pool, and report to a courtroom where lawyers preparing to try a case will ask a bunch of questions and decide whether having me sit on their jury is a good or bad idea. Maybe I survive all the strikes, get seated on a jury panel, and, after hearing all of the evidence, find myself in a jury room with the rest of that same jury panel deciding the fate of an accused criminal or the potential civil liability of parties to a civil case. Maybe I get elected foreman because those non-lawyers on the jury believe the attorney among them knows best what to do and how best to do it. Maybe we convict; maybe we acquit … or maybe we decide that one neighbor’s fence should be moved a foot to the left because it was improperly installed on the next-door neighbor’s side of the property line. Maybe, as a litigator myself, it proves to be an invaluable learning experience from which I am able to hone my craft. Maybe I gain a better appreciation for how all those potential jurors feel the next time I am the one selecting a jury. Maybe I make it as far as the first round of strikes and am sent home. I can live with that! I acknowledge the unlikelihood of my getting impaneled to help decide a case. I accept at the outset that most attorneys selecting potential jurors for their case will not see the potential value in having me in their jury box. I understand that it would be wishful thinking to believe I might find myself as the difference maker persuading fellow jurors to consider evidence in a different light, helping tip the balance in a case with life-altering consequences for the parties. For my money, opting out of jury duty is akin to not buying a lottery ticket – you can’t win if you don’t play. The PowerBall jackpot recently surpassed $1.5 Billion without a winner. My chances of winning were as infinitesimal as the next guy’s, . . . but I bought a ticket anyway. I’ll be sure to tell you all about it if my jury lottery number gets called. (P.S. I’m not making the same promise if my PowerBall number comes up!)
October 19, 2023
The Practice of Law
How to Find an Attorney – Regardless of Your Budget
I am sometimes called into situations where clients have hired other attorneys and aren’t happy with their services (or bills). I mean, I’ve heard some loud complaints. Another scenario I’ve encountered: the client comes to me with an employment-related agreement that lacks basic terms (hopelessly vague) or isn’t enforceable. So it becomes obvious to me that either 1) the client found something on the internet and copied it, or 2) prior counsel didn’t know what they were doing or did not do it carefully. What to do? If you’re an individual reading this and you don’t have money for a regular attorney’s rate, you may apply to various state or local agencies for free or reduced-cost help with some types of matters. You may also file certain litigations on your own behalf (although not all) and ask that the Court appoint you free counsel – yes, even in a civil case. Call your state’s bar association, as well; they may have other suggestions, such as working with supervised students at a law school. If you are looking for counsel on a business matter, then as Mama said, SHOP AROUND. Here’s how: Look for a specialist in the particular area(s) of law involved. Don’t call your neighbor because he’s the only attorney you know. Don’t rely on your best friend (that can get messy) or even their recommendations without doing your own research. To find a specialist, you may turn to the web, but don’t defer to the attorneys at the top of the page (they paid Google for the privilege). You could also look in local recent publications for “Best Lawyers” lists, but only those where attorneys are peer-selected. How long have they been practicing in that area? Do they claim so many specialties that it’s a bit suspect? After locating some attorneys who list the area as a specialty, contact several attorneys. Describe your situation, ask how often they handle this type of matter and for how many years. Just like a surgeon, you’re looking for someone who’s handled this procedure many times. Don’t go to the firm your organization “has used forever” unless you are very comfortable with the expertise and experience of the current lawyers at the firm (and their rates; ask). Ask: who will handle the bulk of the work, the experienced partner or the new associate? Get quotes from qualified attorneys. There is a huge range of billable rates for the same work from very similar lawyers. Recently I was on a call with lawyers from a firm (who aren’t as experienced). The two of them on the other end of the phone cost their client almost three times what I charged my client. These might seem time-consuming. But these efforts could save tens of thousands of dollars. Best regards, Katherine
May 4, 2022
