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September 18, 2017

To jurors, do your associates and paralegals come off like creeps?

It is American trial season again. September and October are always packed with trials. We now have fewer civil trials--in both American state trial courts and federal district courts--than we did fifty years ago. But we still have them. And lots of them have jurors. In America, we have so many different types of civil disputes in courts of record heard by juries that most Europeans, especially Germans, think we've gone a bit far with the right to a jury trial, and due process generally, if not completely around the proverbial bend. We waste too much time and money, some say. Maybe they're right. But under our federal and state systems, jurors are here to stay. We are dug in.

No matter how elitist or egalitarian you are on the subject of jurors here in the States, please understand something.

Jurors are not dumb. They miss little. They watch you and your team--lawyers, fact witnesses, expert witnesses, consultants, law firm employees and even partisan well-wishers you may have invited--in the courtroom, in the back of the courtroom, in hallways, in restrooms, in parking lots and in restaurants.

In short, they are watching you and yours. You get the idea.

Here's something you already know. Jurors will always surprise you in their decision-making. No matter what an expert might tell you, or how hard you've worked at selection, you're always wrong about one, two or three of them. You find out things about some of them at the verdict, with or without special interrogatories.

You'll learn tons more, however, if you have the opportunity to speak with them after the verdict comes in and they're dismissed. Ask them how they viewed the personalities in the courtroom and whether they formed opinions about anyone. Of course they did.

Creep Control

Anyway, during trial, don't go out of your way to antagonize jurors with sideshows which have nothing to do with the trial itself. Bring no "creeps" with you to trial. Keep them in the office. If they must show up--even for a moment--teach them to "un-creep" themselves, starting at 60 second intervals, and practicing until they can hold out for five minutes at a stretch. Hint: They pretend they are happy confident people who genuinely like other humans. And life. Breathe in. Breathe out. Repeat. And remember, you seek progress--not perfection. Be gentle at first.

Non-Creeps

Bring to trial no "non-creeps" capable of any snide, "mean" or creepy gesture, facial expression or body language glitch lasting more than one half-second. Instruct your non-creeps to read this post to be on the safe side. Reformed creeps--you spotted them early and sent them to rehab but they are ultimately powerless over they way they look or act--need pep talks, and brief courtroom appearances. See above.

Recovering Creeps Who Under Pressure of Trial May Relapse and Fold or Explode in Public

See above.

A Note on Nerds

In doses, however, a few generic dweebs and weenies running in and out of the courtroom with a huge box of documents, a phone message from your wife about Nantucket this summer with the Bloors, a good luck note from your mistress, your lucky bow-tie, your spats, your reserve pair of Bass Weejuns--face it, many on your staff are the kind of people you routinely made fun of in high school--is okay. Jurors expect nerds will be in the building. You're a lawyer. You live in a world where nerds are almost normal. Jurors get and tolerate that.

But jurors just don't like self-important "assisting creeps". That's really personal. Let us explain more.

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A few years ago, after a two-and-a-half week trial, we won a jury defense verdict in a breach of contract and fraud trial involving three established companies and a super-nail biter which no one could call. Everyone had "bad" facts to deal with. All counsel and most witnesses did a fine job. An honest, fair, bright and even-tempered judge presided. So we interviewed some jurors right after the trial--and were told by all but one of them that they were seriously annoyed by some of the sneers, body language, guffaws and antics of the fire-breathing "let's kick some ass" associates and paralegals in the firms helping the plaintiff and the co-defendant in and out of the courtroom.

This seemed to happen a lot with two younger lawyers the same firm who sat together in the court room smirking and cockily approaching counsel's table bearing a note or message with an attitude that said: "take that" and "your sufferings will be legendary, chumps"--that kind of thing. Harmless macho stuff. But it hurt. Jurors noticed. In our interviews, some of the jurors used words like "creeps", "jerks" and worse to describe these people. The law firm's culprits were just over-jazzed, over-confident, over-macho and young (and they lost.) But their behavior, even subtle things, may have tipped the balance.

Don't screw up hard work and a client's chances at trial with mean-spirited sideshows confirming what many jurors thought about many lawyers anyway. Jurors are watching you, your attending GC, client representative and/or your witnesses and your associates and paralegals like hawks: in and out of session, in the halls, in the back of the courtroom, restrooms, parking lots, restaurants. Very little is missed.

Whether or not you think your trial people (men or women) are capable of looking or acting like "creeps" and robots of war at any moment during the roller-coaster ride of a trial, explain to them in advance the importance of "maintaining" a demeanor which appears professional yet fair, friendly, amiable and genuinely good-hearted. Better yet, hire only those people to help you present your case to a jury.

Note on other participants, witnesses, GCs: Wood-shedding of course is not soley for those smirking associates or nasty-ass paralegals who hate life. Plaintiffs, defendants, employees for both, fact witnesses and expert witnesses of parties need the same wood-shedding or cautionary harangue. In-house-counsel? No, generally not. They tend to get it.

Posted by JD Hull at September 18, 2017 12:49 AM

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