Trial Magazine

If you could, wouldn’t you like to peek into the jury room—to know what the jurors are focusing on in their deliberations and which way they are leaning? As trial lawyers, we entrust jurors with the responsibility to ensure that our clients receive the justice they deserve. But few lawyers, let alone trial lawyers, get the opportunity to sit on a jury and participate in an actual deliberation. That was true for me until the day I was the last juror selected to serve on a criminal jury. The prosecution was out of peremptory challenges, and the defense was forced to choose between me and a mall security guard.

The defendant was accused of downloading illegal pornographic material on his home computer. During the three-day trial, the jurors learned several exculpatory facts that strongly called into question the defendant’s guilt. First, the defendant had an alibi: His employer testified with the support of business records that the defendant was making deliveries to several pharmacies and was not at home during the times in question. Second, the defendant’s adult son—after exercising his Fifth Amendment right not to testify and then receiving immunity—testified and admitted that he had been using the computer the night in question but denied downloading any illicit material. Throughout the trial, the prosecution ignored the alibi and the son’s testimony.

Shortly after entering the jury deliberation room, I suggested that we take a preliminary poll, unable to imagine that anyone could not have reasonable doubt. To my surprise, I was one of four jurors who, at the beginning of deliberations, did not think we should convict the defendant.

Ultimately, the entire jury came to recognize that there was plenty of reasonable doubt, and we found the defendant not guilty. I used the experience as a valuable anecdotal lesson. What kept those jurors from reaching the conclusion that seemed obvious to me? Could the same things occur in my civil cases? The jurors had different reasons for doubting the defendant’s innocence.

Burden of Proof

As soon as the jurors entered the deliberation room, the concept of burden of proof disappeared from their minds. Countless times, my fellow jurors expressed how upset they were that the defendant did not prove that he was innocent. The court’s clear instructions otherwise could not overcome this mindset. Unfortunately, it took a lawyer in the deliberation room to remind my fellow jurors that the burden was on the prosecution, not the defendant.

The burden of proof and who has the burden of proof are deciding factors in most cases. The civil burden can be even more difficult to grasp, so it is critical that the jury understands it and repeats it in the jury room. The last thing you want is confused jurors who think you need to prove your case beyond a reasonable doubt or need to prove elements that aren’t part of the prima facie case. While the burden of proof generally is on the plaintiff, keep in mind that the defense bears the burden on affirmative defenses—failing to shift that burden would be a missed opportunity.

Preconceived Ideas of Justice

Many of the jurors I served with struggled to overcome their preconceptions about our justice system. For them, it was terrifying that someone could be tried for a crime he did not commit. Reaching that conclusion meant that they had to accept that it could happen to them too.

In civil trials, jurors also often have preconceptions. Many jurors are quick to cite their version of the McDonald’s hot coffee case or some other misrepresentation that they have accepted as dogma. The propaganda against plaintiffs is powerful and will be a hurdle in the jury room, so arming jurors with the arguments they need to fight for your client during deliberations is essential. Both the plaintiff and the defendant deserve a jury that will consider the facts of that particular case only. It is helpful to remind the jurors that justice requires them to follow the evidence to the right conclusion, regardless of whether it fits their preconceptions.

‘Law & Order’ Syndrome

Be careful of the human desire to be armchair detectives. People love legal dramas because we can solve the crime right along with the detectives. These shows teach viewers to be naturally skeptical and to look for clues. When I served, several jurors assumed that the defendant and his boss forged timesheets to provide the alibi. There were no questions, testimony, or arguments about the timesheets being fake. So what was the basis for assuming they were? The photocopy of the timesheets was slightly askew. This tendency to play detective is dangerous in any case. This is why it is helpful to run a focus group or gain feedback from people outside the legal field.

Unanswered Questions

Most shocking to me was how upsetting it was to some jurors that an acquittal meant—in their minds—that they would never uncover the real guilty party. People don’t like unanswered questions. Imagine watching a two-hour mystery movie only to have the movie end right before you find out who did it.

As plaintiff lawyers, we cannot leave any unanswered questions or open the door for other possible explanations. The jury will want to answer why your client is injured, but if you leave blanks in the evidence, they’ll fill it in with answers that might be detrimental to your case. For example, open questions may cause speculation about possible causes for the plaintiff’s injuries, none of them being that the defendant was negligent.

We all know that the jury system is unpredictable. We focus group our cases, hire jury consultants, and research potential jurors all with the hope of selecting a group of jurors who will fairly decide our client’s case. Keep in mind these issues when you plan discovery and, ultimately, your trial strategy. Nothing can eliminate the risks of trial, but they can be minimized by being aware of what can cause jurors to ignore the evidence.

Seth L. Cardeli is an associate at Janet, Janet & Suggs in Baltimore. He can be reached at scardeli@jjsjustice.com.