The Jury Is Watching: How to Lose a Trial by Jaywalking and Other Bad Behavior

The star of one of my favorite trial stories isn’t a lawyer.

The star of this story is my wife, Shoey Sindel, a Berkeley wedding and portrait photographer. She was seated on a jury in a personal injury case. The case was tough for plaintiff, who admitted to being drunk and jaywalking when a motorist hit him on a dark street at night. Liability wasn’t the only tough sell. Damages were iffy because plaintiff had been unemployed for several years.

Plaintiff’s counsel played the sympathy card, hoping that a showing of pain and suffering would sway the jury. When the plaintiff took the stand, he walked tentatively, leaning on a cane. He grimaced with each step. Either the plaintiff was in a lot of pain or he was a good actor.

The next morning, as my wife was driving to the courthouse, who do you suppose she saw running across the street, jaywalking and holding a cane like he was going to hand it off in an Olympic relay race? That’s right. The plaintiff.

Plaintiff did not appear to be in pain or suffering from any injuries. Shoey sat through the morning testimony until a break. She pondered what to do. Wait until jury deliberations and tell the jury what she saw? She expected that would lead to a swift verdict against this shifty plaintiff. She decided to tell the bailiff she needed to talk to the judge. The judge along with the attorneys met with Shoey in chambers. Shoey told the judge what she had seen that morning and that she couldn’t be an impartial juror. That was true. Shoey had become the star witness for the defense. Defendant would be entitled to call her as a witness to impeach plaintiff’s claims of pain, suffering and injury.

The judge had no alternative. He declared a mistrial. The matter settled, and Shoey never had to testify as to what she saw.

Lesson for Lawyers: You Are Always On Stage

There is an important lesson here for lawyers and their clients during jury trials. The jury is scrutinizing you at all times, not just when you are on the stand or at the lectern. Late to court? Don’t cut off that car in the parking lot or cut to the head of the line at the courthouse entrance. That’s right — the jurors are watching.

Taking a break in the hall? Not the best place to share a joke and laugh with your client. Mirth may not convey the message you would choose as to the seriousness of the trial proceedings.

Sitting at counsel’s table when the other side’s witness has just delivered a surprise zinger? Now’s not the time to jump up straight in your chair, start scribbling notes furiously or lean over to whisper to each other with an agitated expression. Such a sudden burst of activity is the best way to signal the jury to pay attention to damaging testimony. Best reaction? A yawn. Trials are long and boring. At any one time, most jurors are drifting or daydreaming. No need to break the reverie when you’d rather they kept snoozing.

Prepare your clients and witnesses as to courtroom etiquette before trial. They are to conduct themselves politely and with proper decorum from the time they get near the courthouse until the they have left the neighborhood at the end of the day. You can’t speak with jurors, but you can be polite. Hold the elevator or door. Let the juror go first.

The jawywalking plaintiff with his phony injuries is an extreme example. Most lapses of decorum won’t lead to a mistrial. Just remember — the jurors are watching.

About California Litigation Firm Newdorf Legal

David Newdorf is managing attorney of Newdorf Legal, which represents individuals, businesses and public entities in trials and appeals. The firm’s practice areas include business disputes, business torts/interference with contract, breach of contract, breach of fiduciary duty, fraud, investment disputes, real estate, commercial landlord-tenant cases, and municipal law.

Mr. Newdorf worked previously as a trial lawyer and team leader in the San Francisco City Attorney’s Office and was a litigation associate at a major international law firm. Mr. Newdorf was recently listed, for the second year in a row, in Northern California Super Lawyers magazine, an honor reserved for 5 percent of the State’s lawyers based on nomination by fellow lawyers and evaluation of professional reputation and achievement. In a more unusual accolade, Mr. Newdorf was named “Badass lawyer of the week” by The Recorder’s blog, LegalPad.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

Race, Gender, Jury Selection and David Mamet

Juries try their best to decide cases based on the facts and the law. They don’t always succeed.

Effective lawyers understand the limits of juror fairness and their ability to put aside preconceived notions. David Mamet’s play Race, which I saw this week in San Francisco, is a perceptive look at how trial lawyers navigate the unspoken value systems of juries. The play unfolds in a law firm conference room as three criminal defense lawyers brainstorm how to defend their wealthy, white client against charges that he raped a young black woman.

Juries are generally good at deciding simple facts: whether a light was red or green, whether a promise was made or broken, whether a stagtement was misleading. Other cases have hidden landmines for the lawyers. Cases involving issues of race, religion, gender, power, or wealth are traps for the unwary. White cops versus black suspect. White male executive versus young female subordinate. Corporate manager versus Muslim employee. In such cases, the jury deliberations can easily get away from the evidence, arguments and law — unless one or the other lawyers provides an easy guide through the thicket.

When it comes to hot button issues, jurors will bring to the deliberations not only their pre-conceived notions but an awareness of societal norms. For example, white jurors agree that racism is bad and may be persuaded to render a verdict that avoids tagging the juror as a racist. Most of these issues won’t be addressed directly at trial and may not even be discussed in the jury room. But these notions — some deeply ingrained even if never spoken aloud — will have an effect on the verdict that may be more profound than what transpired in the courtroom.

Lawyers can use these preconceptions to advantage or attempt to counter them. However, they ignore the hot-button issues at their peril. In an era in which a black man is president, some like to think society has transcended racism. In the words of jury consultant Doug Keene (from his blog The Jury Room):

The bottom line is this: do not assume race doesn’t matter in your case. Race always matters. The question is how and in what direction. Don’t go to trial without knowing.

Author Shelby Steele in his book White Guilt provides an interesting explanation of the O.J. Simpson verdict that is on point:

In the O.J. Simpson murder trial, defense attorney Johnnie Cochran used the fact that Detective Mark Fuhrman lied on the witness stand about having ever used the N word to assert that the entire mountain of evidence pointing to Simpson’s guilt was likely contaminated wtih racism. . . .

Johnnie Cochran succeeded in making the trial a contest between the empirical evidence and global racism, between fact and the reputation of racism for distorting and manipulating fact.

David Mamet’s play Race shows lawyers strategizing the defense of a high-profile criminal trial.

As the cynical senior lawyer of the play explains, it’s not about factual guilt or innocence. It’s about competing fictions put forth by the prosecution and defense. It’s not necessarily which story explains the facts better but which one affirms a juror’s sense of justice. Hence, a jury exonerated O.J. Simpson (despite the forensic evidence linking him to the crime) because 50 years ago, a black man facing similar charges would have been convicted. Rough justice was done.

Race is smart and engaging. It tackles issues of race and gender bias without being preachy. And it has the pacing of a good legal thriller. Lawyers in the audience will appreciate the realism. It may not qualify for CLE credit, but it’s time well-spent for students of jury behavior and trial strategy.

Race plays at A.C.T. in San Francisco through November 13, 2011. Use the promotional code LAWYER to buy tickets at a discount online.

For trial strategy for your hot-button case, congtact California litigation law firm Newdorf Legal.

Where You Sue (or Get Sued) Matters

You may have a choice of courts in which to file your California personal injury or business claim.

Should you choose state or federal court? Which county or state or judicial district? These choices matter because of differing procedural rules, local procedures, and jury demographics. For example, federal court requires a unanimous jury to reach a verdict (even in a civil case), but only 9 jurors out of 12 are needed to reach a verdict in California state courts. Next to an outright defense verdict, a hung jury is generally the civil defendant’s next best outcome. Since hung juries are more likely in federal court (you only need one hold out juror), a defendant may have a good reason to remove a case from state to federal court.

Defendants benefit from federal court summary judgment procedures.

In U.S. District Court, the shorter notice periods for bringing summary judgment motions generally favor defendants. With four to five weeks from filing to hearing in federal court, plaintiffs may not have a chance to conduct discovery directed at issues and points raised in the motion. In California courts, the opposing party will have at least 60 days before its opposition is due. During this time, the plaintiff may serve written discovery requests and take depositions if needed to shore up the evidence in support of an essential element of plaintiff’s claim. Finally, federal judges have more latitude to grant partial summary judgment concerning discrete issues compared to the narrow grounds for summary adjudication under the California Code of Civil Procedure.

Choosing your jury pool

In state court, jury pools vary from county to county. Rural counties tend to provide more conservative jury pools, which often is reflected in defense verdicts or lower plaintiff’s verdicts. Urban counties generally are more plaintiff-friendly venues. But even within a metropolitan area, jury pools differ from county to county and courthouse to courthouse.

Lawsuit venue rules vary depending on the case

You may have little choice about where to file your action. For example, consumer collection actions can only be filed in the county where the contract was signed or the county where the defendant currently resides. A defendant may have the option to remove a lawsuit to federal court, but the removal petition must be filed within 30 days of service of the complaint. Where there’s a choice, the decision where to file can have a large effect on the ultimate outcome of litigation. Consult with an experienced business or personal injury attorney concerning these strategic decisions. If you are a transactional lawyer, you would be well advised to consult with (or refer your client to) a litigator regarding these strategic litigation calls.

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

Call David Newdorf at (415) 357-1234 (or e-mail to info(at)newdorf.com) for all of your California complex litigation questions.