Blog Archives

Keep in Mind that Judges Are Only Human

So often I see attorneys lose sight of the fact judges are only human. This means one has to be mindful of what you can reasonably expect of a judge. Help a judge by:

1. Making your arguments or briefs short and succinct. Get to the point. Judge’s have limited time. Don’t cite ten cases when one is right on point. Less is more when you’re trying to win a judge over.

2. Be professional and respectful. Judges don’t want to referee a food fight. Address your remarks to the court, not opposing counsel. Avoid personal attacks on opposing counsel. Attack your opponent’s arguments, not their integrity. Such attacks grate on a judge and are rarely effective. Once you offend someone, you lose your ability to persuade them.

3. Don’t inundate a judge with more work than he has time to complete. If you have pretrial motions and exhibits the judge needs to review and rule upon, make sure they are presented sufficiently in advance of trial so the judge she can accurately rule upon them. Have the Court set reasonable deadlines for all involved. Otherwise, you are inviting errors in rulings or a sua sponte continuance of your trial.

4. Pre-mark exhibits and give the courtroom deputy an exhibit chart that identifies each exhibit by number or letter, description and has columns to show if it is marked and offered, as well as a column to show if it is admitted or excluded. Have sufficient exhibits for all jurors, court staff, the witness stand and opposing counsel. You will endear yourself to the court and it’s staff.

5. Show up early to court and always make sure you have witnesses there on time and in reserve. Judges hate to waste their time or the jury’s.

6. If you can anticipate potential issues that might arise, have a trial brief or a copy of a controlling case on hand for the judge and opposing counsel. If you are sure an issue will come up, you might want to submit your brief or authority early. Judges hate surprises.

7. Learn the judge’s courtroom procedures for jury selection, how juror strikes are handled, the proper location for questioning a witness and when and how you may approach a witness.

8. Provide a copy of your jury instructions in electronic form to the court so they can easily be edited.

9. Check with other attorneys who have tried a case with the judge and learn his preferences, weaknesses and biases.

I hope these tips are of use. Good luck in your next trial.

An Unforeseen Value to Loss of Consortium Claims in Selecting a Jury.

As a Plaintiff’s attorney you want to identify jurors who will refuse to follow the Court’s instructions directing the grant of money damages for pain and suffering. I inadvertently found something that is even more polarizing and controversial than claims for such intangible losses… Loss of consortium!

I was picking jury in a rural county and questioned jurors about our claim for loss of services, love and affection . My concern was that religious jurors might feel that when you marry someone it is for “better or worse, for richer or poorer, in sickness or health till death do you part” thereby disqualifying them for monetary compensation. I was also concerned that other people may consider it double dipping since the injured spouse would recover for interference with the marital relationship as part of their claim for loss of enjoyment of life.

To my surprise and the court’s, there were so many jurors who stated they could not follow the law on this point and were unable to fairly consider such a claim, that we nearly ran out of jurors to empanel.

So include a claim for loss of consortium when supported by the evidence. It may be your best barometer for finding and eliminating for cause, jurors who cannot follow their oath and fairly compensate your client and their spouse for all their harms and losses.

I’ve Been Called for Jury Service… What Do I Do Now?

 THOMAS JEFFERSON (1789):  “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

My last blog post made me realize that potential jurors need guidance.  What is their role? What should they do if called to serve?  Jury service is the greatest civic responsibility we have.  Our service is necessary, if we want to live in a free democratic society.  Citizens have braved criticism, threat of punishment and public ridicule to give their verdict to insure liberty and justice for all.

The right to trial by jury is so important that it is guaranteed twice in the U.S. Constitution under the 6th and 7th Amendments for criminal and civil trials, respectively. Grand jury protection is required for the issuance of criminal charges in federal court under the 5th Amendment to the U.S. Constitution.

Here are some do’s and don’t to keep in mind:

1.    In the days leading up to your jury service, don’t read the newspaper or watch television or read the news.

2.    Dress like you respect the proceeding and be on time.

3.     Accurately and completely answer your jury questionnaire.  This is the primary source of information the attorneys will use in deciding if you should serve.

4.     Pay close attention to the questions asked by the attorneys during jury selection.  Fully and accurately answer the questions asked as someone’s well-being or liberty hangs in the balance.

5.    If you have a physical handicap such as language difficulty, eyesight or hearing problems, then let the bailiff and parties know of your limitations, even if not asked.

6.    Do not discuss the case with your fellow jurors until the Court says that you may.

7.    Tell the Court or parties if you have been subpoenaed as a witness in the case, are interested In a similar suit begun or planned, have an opinion as to the outcome of the case due to information received from a witness or news report, if you are a defendant in a criminal case, biased for or against a party, related to a party, are a felon or in law enforcement or otherwise cannot be fair.

8.     Jurors must be fluent in English and able to read and hear.

9.     Do not conduct research on your own or as a group,

10.    Do get rest.

11.    Do not use dictionaries, the Internet, or any other resource to gather any information about the issues in this case.

12.    Do not investigate the case, conduct any experiments, or attempt to gain any specialized knowledge about the case.

13.     Do not receive help in deciding the case from any outside source.

14.     Do not use laptops or cell phones in the courtroom or in the jury room while discussing the case,

15.     Do not consume any alcohol or drugs that could affect your ability to hear and understand the evidence,

16.     Do not read, watch, or listen to anything about the trial from any source whatsoever, including newspapers, radio, television, or the Internet,

17.     Do not listen to discussions among, or receive information from, other people about this trial, or

18.     Do not visit or view the scene of any event involved in this case. If you happen to pass by the scene, do not stop or investigate.

19.     Do not talk to any of the parties, their lawyers, any of the witnesses, or members of the media. If anyone tries to talk to you about this case, you must tell the bailiff or judge immediately.

20.     Do not discuss the case with anyone other than your fellow jurors.

21.     Do not abandon your opinions on what you believe is a just verdict just to get out of there.

22.     Be courageous. You are the embodiment of justice.

24.     Be respectful of your fellow jurors opinions, listen carefully and keep an open mind.

25.     Follow the judge’s instructions.

26,    Report anyone to the bailiff who fails to obey the court’s rules.

27.    Remember you cannot be punished for hanging a jury’s verdict.  Follow your conscience.

Good luck!

Challenges to the Composition of the Jury Pool

A fox should not be on the jury at a goose’s trial. – – Thomas Fuller

A right to trial by jury is guaranteed under both state and federal law.   In a civil matter, a trial by jury is provided for under Article 1, Section 20 offox and goose 2, and the 7th Amendment of the U.S. Constitution.  These provisions  assure a citizen the right of trial by jury in matters tried at law.

In criminal matters,  the right to trial by jury is provided for  under Article 1, Sections 13 and 19 of Indiana’s Bill of Rights and the 6th Amendment of the U.S. Constitution.   The Constitution of the United States and the Indiana guarantee defendants in criminal cases and litigants in civil cases the right to a trial by jury.   Indiana law states that all litigants have the right to a jury selected from a fair cross-section of the community and that all eligible citizens shall have both the opportunity and obligation to serve.

Questions of equal protection under Article 1, Section 23 of the Indiana Bill of Rights and the 14th Amendment to the U.S. Constitution may be implicated when segments of society are disproportionately  excluded from service in the formation of the jury pool, or as through the exercise of a party’s peremptory challenges to systematically eliminate a particular class of people from the jury on the basis of race, creed, religion, sex or sexual orientation. Indiana Jury Rule 18 addresses how the Court is to deal with such problems.To secure an impartial jury, the Sixth Amendment requires that the venire be drawn from a fair cross-section of the community. Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 107 L.Ed.2d 905 (1990); Patterson v. Alabama, 294 U.S. 600 (1935), (held that an African-American defendant is denied due process rights if the jury pool excludes African-Americans). The Impartial Jury Clause of the 6th Amendment and the Equal Protection Clause of the 14th Amendment of the U.S. Constitution require that the jury pool  fairly represent  a  “cross-section of the community”.   Glasser v. United States, 315 U.S. 60 (1942), (held that exclusion of women (other than members of the League of Women Voters who had taken a jury training class) from the jury pool violated the Impartial Jury Clause of the 6th Amendment, and not, the Equal Protection Clause of the 14th Amendment, under the  “cross-section of the community” analysis).   Questions of equal protection under Article 1, Section 23 of the Indiana Bill of Rights and the impartiality requirements of Article 1, Section 13 of the Indiana Bill of Rights may  be implicated when segments of society are disproportionately  excluded from service in the formation of the jury pool.

Ultimately, the quest is to obtain a fair and impartial jury.  This goal influences our court rules, statutes and case-law.  I hope this information provides a good starting point for any inquiries or challenges you need to make in securing a fair jury for your client.

Use of Peremptory Challenges and Preservation of Challenges for Cause

The great thing about our system of democracy is when they call you for jury duty, you have to come… It’s an honor and a privilege. I was called and I’ve got to be here.    – – Antonio Villaraigosa

Pursuant to Indiana’s long-standing rule, a claim of error arising from the denial of a challenge for cause is waived unless that party used any remaining peremptory challenges to remove the challenged juror or jurors.   In Robinson v. State, 453 N.E.2d 280, 282 (Ind.1983), the Indiana Supreme Court stated “[o]ur law on this issue is well settled. We have consistently held that to preserve any error the defendant bears the burden of demonstrating that at the time [he or she] challenged the jurors for cause,[he or she] had exhausted [their] peremptory challenges.” Eventual use of all peremptory challenges is therefore not enough to satisfy the exhaustion requirement. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232, 1235 (Ind. 2002). The rationale for this approach is that “where a trial court may have erred in denying a party’s challenge for cause, and the party can cure such error by peremptorily removing the apparently biased venire person, the party should do so in order to ensure a fair trial and an efficient resolution of the case.” Id. To guide attorneys through the field of venire challenges, our supreme court devised a clear and predictable road map.  You must use any available peremptories to correct erroneous denials of challenges for cause if they are available. If on appeal you then prove both the erroneous denial and that you were unable to strike another objectionable juror because you exhausted your peremptory challenges, you are entitled to a new trial. Id. at 1237.

Failure to correct the problem yourself, if possible through the use of a peremptory strike, waives any error caused by the trial court’s denial of your challenge for cause.

Why It Doesn’t Always Pay to be the Smartest Guy in the Room


Ego… All good trial attorneys have it.  Without a little ego it would be difficult to stand up and try to persuade a bunch of strangers you just met to acquit your client or award your client a significant sum of money.  It takes not hard work and preparation, but a fair amount of moxie and courage to be an effective trial attorney.  However, it does not always pay to be the smartest guy in the room.  I learned this early on as a trial attorney while prosecuting  cases.  I would always work hard to anticipate evidentiary issues that might arise, look up cases, copy and highlight them so I was ready if a question of admissibility were to arise.  As my experience grew, I incorporated this research into my trial notebook which I have covered in an earlier post.  Sometimes in my zeal to win and impress the judge, I would jump the gun before it was really necessary and start quoting case-law and the rules of evidence or procedure to the judge.  Most judges have a fair amount of ego too and want to believe that they are the smartest guy in the room.   Even if they aren’t, most juries will think that they are. Some judges even have what is commonly called “black-robe-it is” and feel that they are infallible and will demean attorneys who dare to disagree with them.  Now, if I see that the judge is likely to take up my position on a legal point, I don’t interrupt, interject authority or case-law until I am asked to so by the Court.  It better for the judge to think your position is the judge’s own idea and take ownership of your position.  I am careful to let the judge shine as the smartest guy in the room as long as things are moving in my client’s favor.  So next time a legal issue arise, pause and see how the Court is approaching the topic before speaking.  Then you will be the smartest guy in the room, even if you are the only who knows it.

Jury Selection-What’s the Goal?

Of all the areas of trial work, this is probably the most difficult and important task that confronts a courtroom attorney. I have seen many different approaches used in questioning and selecting a jury. Your time is limited and the stakes are high. If you “guess’ incorrectly you can lose your case before it even begins. While there are several tasks to accomplish during jury voir dire, uncovering biases is the most important. The information gathered can be used to remove a potential juror for cause because of bias or the failure to satisfy the statutory requirements to sit and judge a case.

Grounds for cause can include the inability to read, see or hear, lack of English literacy, personal bias, preconceived opinions on a case that cannot be put aside, personal knowledge of the underlying facts or the parties, a family relationship to a party within so many degrees, and religious or ethical reasons that prohibit a person from sitting in judgment of another or rendering punishment. Most states have jury rules and/or statutes that outline grounds for excluding a juror for cause. You need to be familiar with them and be ready to specifically cite to the rules or statutes as needed. To this end, you really need to enlist the aid of the jurors themselves, especially where the Court has limited your time for questioning jurors.

I usually will say something like this early on in the selection process:

I have limited time to speak with you today and I may not be smart enough or have enough time, to ask the right questions to learn what I need to know about your background. I really need your help. I know it’s not easy to say for you to say that “there is something in my background that might not make me the best of person to sit on this type of case.” It takes a lot of courage to admit this sort of thing about yourself. So ask you to please help me and my client by letting me know if there is anything that you know of in your background that you think I should know. Please let me know if there is anything which could affect your ability even a little to sit as a juror in this case?

This usually will get people talking. I always compliment the person for their honesty and candor. I try to cover burdens of proof and make sure that the jury will not have a problem (even a little) in obeying the Court’s instructions and including money for all items of damage including pain and suffering or loss of services. I will also check for any areas of expertise that a witness might have which could come to bear and make sure that they will decide the case based upon the expert testimony in court and not be their own expert. This would be unfair because i would have no chance to question them or examine their opinion. I will usually ask something along the following lines to see if the juror’s expertise will pose a problem:

If our expert testifies to a principle or opinion which based upon your training or experience you know is incorrect, can you put aside your own personal knowledge and decide this case solely based upon the evidence presented in court? Would you be unable to ignore what you have learned outside the court room in decide what to do?

I also look for who the leaders are on the jury panel. They will either lead the others or hold out and hang your jury. You should look at the person’s education, job, civic involvement and standing in the community. I simply ask :

Have you ever held a position of leadership at work or as part of an organization or club?

Leaders are most likely to end up being the foreperson. As a federal judge once told me, if you can pick the foreperson, you can usually predict the verdict. Good luck in selecting your next jury. I hope these thoughts help you in selecting your next jury. Registered & Protected

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